In early July, in a performance as legally baffling as it was politically predictable, Federal Bureau of Investigation director James B. Comey recommended against a felony prosecution of the former secretary of state and certain Democratic presidential nominee. The recommendation was gratuitous: It is the FBI’s function to investigate crimes; the Justice Department alone exercises charging discretion. It is a commonplace for case agents and government prosecutors to consult on both investigative tactics and charging decisions. It is a rarity, though, for the FBI director to get directly involved in, much less make, an indictment decision. That, in effect, is what Comey did. That his recommendation was uncalled for makes it all the more indefensible.
To stick for a moment with the FBI’s actual function, let’s note that its agents performed admirably, particularly in the forensic aspects of the investigation: the examination of Mrs. Clinton’s “homebrew” servers, the painstaking reassembly of millions of bits of data into thousands of e-mails (out of the 30,000 e-mails that Clinton and her phalanx of lawyers and aides had quite intentionally sought to delete and destroy). The FBI thus carried its burden to uncover evidence that can be used to establish the essential elements of crimes defined in federal penal laws. In this instance, according to Director Comey’s unusually transparent and devastating account of what his investigators found, it is simply incontestable that then–secretary of state Clinton (a) mishandled classified information in a manner that was grossly negligent (indeed, Comey called it “extremely careless”) and (b) concealed and destroyed federal records.
Yet Comey claimed not only that no prosecution was warranted but also that no reasonable prosecutor could disagree with this conclusion. The first assertion is flatly wrong; the second is breathtaking, and it evoked aptly spirited dissenting reactions from such iconic former prosecutors as Rudolph W. Giuliani, the former New York City mayor who, as U.S. attorney in Manhattan, hired Comey as a young prosecutor in the mid Eighties, and Michael B. Mukasey, the distinguished former federal judge who served as U.S. attorney general in the George W. Bush administration not long after Comey served as deputy attorney general. (Like Comey, whom I have known as a friend and sometime colleague for nearly 30 years, I was hired as an assistant U.S. attorney by Mr. Giuliani.)
When Comey testified before a House committee just two days after rejecting an indictment of Clinton, the flaws in his rationale were painfully apparent. He suggested that “American tradition” and the Constitution forbid criminal prosecution on an offense as serious as mishandling classified information — a felony carrying a potential ten-year prison term — if the required mens rea (state of mind) element of the crime in the relevant statute calls for mere negligence rather than intent to do harm. To the contrary, many state and federal crimes do not require proof of intentional or willful wrongdoing — indeed, virtually every state has long criminalized negligent homicide. Moreover, Comey inaccurately portrayed the gross-negligence offense as if it were an isolated excrescence in federal law; in fact, it is the bottom of a sliding scale of crimes involving national-defense secrets, carefully calibrated by Congress so that the most serious offense — classic espionage involving intended harm to the U.S. — is at the top. Appropriately, the least serious offense of gross negligence involving national-defense secrets is narrowly tailored: It applies not to all Americans but to officials with security clearances who are intimately familiar with rules governing their special obligation to safeguard intelligence.
But in any case, far from being merely negligent, Clinton’s outrageous conduct screams of willfulness. She intentionally set up an unlawful non-government communication system specifically to evade federal disclosure and accountability laws. In her position at the pinnacle of American foreign relations, she had to know it was inevitable that extremely sensitive intelligence matters would be discussed over the system. The hundreds of classified e-mails discovered included 110 (in 52 e-mail chains) sent or received by Clinton herself. Seven of these involved “top secret/special access program” intelligence — the most highly classified secrets in government, concerning deep-cover informants and closely guarded intelligence-collection techniques (meaning: information the revelation of which can get our agents killed and fold up vital national-security operations).
“Any reasonable person in Secretary Clinton’s position,” Comey admonished, “should have known that an unclassified system was no place for” such exchanges. The director further acknowledged that Clinton’s homebrew system was woefully unsecure: It would have been better, though still against the rules, to use Gmail. Top Clinton aides exacerbated these security compromises, Comey recounted, by using unsecure communication systems while they were outside the United States and “in the territory of sophisticated adversaries.” Clinton clearly knew this practice was a major security breach, assuming she read her own memoir Hard Choices, which — though unmentioned by Comey — takes pains to describe the extraordinary communications precautions that must be taken overseas. The director, in fact, said it was almost certain that Clinton’s system had been penetrated by hostile foreign intelligence operatives (the deftness of whose methods prevents apodictic certainty). He further ruefully observed that, under Clinton, “the culture of the State Department in general” was cavalier, compared with that of other government agencies, when it came to safeguarding intelligence.
Comey’s damning account makes it at least arguable that Clinton could be convicted under subsections of the 1917 Espionage Act (Section 793 of the penal code) that require proof of willful misconduct. Thus, to indict her on Section 793(f), the subsection calling for the lower mens rea of gross negligence, would seem (in prosecutors’ parlance) like a slam-dunk. When Comey could not justify his suggestion that the statute was constitutionally infirm, he fell back on an even less convincing theory: Because the gross-negligence charge has been invoked only once by the Justice Department in the century since its enactment, applying it to Clinton would have been an impermissible selective prosecution — in effect, creating two sets of rules, a harsh standard for Clinton and a blind eye for everyone else.
Applied to the Clintons, who have cheated the rules that apply to the little people for a quarter century, this suggestion was especially risible. More to the point, the gross-negligence felony has in fact been used several times in military cases — which are part of the federal system even if not investigated by the FBI and prosecuted by the Justice Department. So if we are to apply Comey’s “two standards of justice” notion, the reality is that low-level military officials are sent to prison for comparatively trifling offenses while the powerful former secretary of state is given a pass on an enormous one.
In addition, federal courts routinely reject claims of selective prosecution. Comey’s purported inability to find a prior prosecution similar to Clinton’s case owes to the fact that her misconduct was singularly egregious. The application of a presumptively valid statute that perfectly fits the gross derelictions of a high public official would in no way smack of bad faith. But the point, again, is that the FBI’s job is to collect evidence, not draw legal conclusions. It is not the director’s place to torpedo cases based on his doubts (ill-considered in this case) about the validity of a statute or — even more attenuated from the investigative role — his worries about the resolution of a prospective selective-prosecution claim that Clinton’s lawyers might someday bring. That is the Justice Department’s job.
The FBI director’s willingness to do her job was no doubt a relief to Attorney General Loretta Lynch. She had sullied herself in Phoenix just days earlier in a tête-à-tête with former president Bill Clinton — not only the husband of the subject of her department’s most important investigation but himself at the very least a witness in the probe. In the crass Clinton style, the egregiously inappropriate meeting was followed rapid-fire by Mrs. Clinton’s announcement that (wink, wink) she might be inclined to retain Lynch as attorney general in her administration. Next thing you knew, Clinton was being interviewed by the FBI and cleared by Comey three days later — even as President Obama accompanied Clinton on a campaign swing.
Regardless of how implausible his reasoning, the pass from Comey effectively precludes any meaningful action against Clinton in the criminal-justice system. The FBI director gave even shorter shrift to Clinton’s destruction of government records. Bleaching away the evidence that she had intentionally constructed a system precisely to shield her communications from the public scrutiny that the Federal Records Act is supposed to ensure, Comey remarkably found no “intentional misconduct” in Clinton’s concealment and deletion of thousands of e-mails (at least three of which were classified). To Comey, it was immaterial that, for over a year, Clinton has repeatedly represented to the public that all work-related e-mails were turned over to the State Department. Evidently, she can lie to anyone else as long as she doesn’t lie to the FBI.
That includes Congress. Comey conceded that he had not considered Clinton’s marathon testimony before the House committee investigating the Benghazi massacre — another of Madam Secretary’s debacles. This was a strange omission given Comey’s emphasis on Clinton’s state of mind: Prosecutors often prove mens rea by showing that a defendant’s statements were false and thus evinced consciousness of guilt. In her Benghazi testimony, Clinton repeated her now-shattered talking points about the homebrew server system, including her assertion that she had never sent or received e-mails “marked ‘classified.’” To the contrary, Comey reported that “a very small number of [Clinton’s] e-mails containing classified information bore markings indicating the presence of classified information.”
After Comey claimed that the FBI does not investigate potential perjury in congressional testimony without a referral from Congress, House Oversight Committee chairman Jason Chaffetz (R., Utah) and Judiciary Committee chairman Bob Goodlatte (R., Va.) jointly referred the matter to the Justice Department. But the case is going nowhere — bet on it. In his House testimony, only two days after rebuking Clinton because officials in her position know what is classified and must protect it irrespective of “markings,” Comey was already downplaying the matter. He framed it as only three e-mails out of tens of thousands and even floated the astonishing suggestion that the secretary of state might have missed the significance of the markings. If there is a renewed investigation, it will require months, taking us beyond the November election. It is inconceivable, moreover, that the FBI will nail Clinton on three e-mails after giving her a walk on 30,000.
The disconcerting truth of the Clinton e-mail scandal is that our constitutional framework is in tatters. The architects of our governmental system were under no illusions that the executive branch’s law-enforcement agencies could be trusted to rein in corrupt executive officials — indeed, there was no Justice Department until the late 19th century and no FBI until 1908.
In 2014, I wrote a book titled “Faithless Execution,” not so much to call for the impeachment of lawless executive officials as to explain why impeachment is — as Madison put it — indispensable to the functioning of our government. It is the check given to Congress, the people’s representatives, against abuses of executive power. Absent the threat of impeachment, a rogue administration scoffs at congressional oversight. Impeachment does not require courtroom proof beyond a reasonable doubt of statutory offenses. It is designed to divest power from derelict officials who, out of corruption or incompetence, endanger national security and are mendacious in dealings with Congress and the public. And because the Constitution’s penalty for impeachment includes “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States,” impeachment is just as applicable to prospective holders of high executive office as to incumbent ones.
If the government were functioning properly, Congress would impeach Hillary Clinton, not refer her misconduct to the same administration that indulged it in the first place. But of course, if the country were functioning properly, approximately half the public would not be prepared to elect as president the incorrigibly reckless and deceitful official whom James Comey condemned but shrank from indicting.