Magazine | October 24, 2016, Issue

James Comey’s Dereliction

Of course the Obama administration was not going to prosecute Hillary Clinton

When considering the recommendation of Federal Bureau of Investigation director James B. Comey against a prosecution of Hillary Clinton over the e-mail scandal, bear two things in mind.

First, for all their pretensions about the insulation of law enforcement from politics, the FBI and the Department of Justice are agents of the executive branch. As a matter of constitutional law, the power they are delegated to exercise is the president’s, and they wield it at his pleasure. The highly ambitious men and women in coveted executive-branch leadership posts always have the option of honorably resigning if they find the president’s bidding too unsavory to do; but if they remain, they do what is expected of them.

Second, Obama, a Harvard-trained attorney who deems himself an expert legal tactician, is deeply engaged in the workings of the Justice Department. As a community organizer, he learned that who is exploiting the legal process is far more consequential than what the laws actually say — if I vex you with a bogus lawsuit, you don’t laugh it off, you hire a lawyer. Not surprisingly, Obama being a “transformative” president, his hand is discernible in everything his Justice Department does — whether it is racially discriminatory civil-rights enforcement, federalization of the nation’s police departments, a trumped-up prosecution to help the administration scapegoat a film producer as the Benghazi villain, obstructing congressional investigations of the Fast and Furious scandal and of the IRS’s intimidation of the president’s conservative critics, defending Obama’s non-enforcement of immigration law, promoting the administration’s narrative that predatory banks (not lunatic government housing policies) caused the 2008 financial meltdown, sculpting indictments in conformance to Obama’s see-no-Islam conception of terrorism, etc. His is the most politicized Justice Department in American history.

That Justice Department was never going to indict Hillary Clinton, the presidential nominee of the president’s party, whom the president has endorsed and sees as key to cementing his legacy. That Justice Department, moreover, was never going to indict Obama’s former secretary of state for engaging in conduct — the reckless communication of classified information through non-secure e-mail channels — in which Obama himself not only engaged but did so with Clinton.

This should be news to none of us. It certainly was not news to the FBI director. The president did not want Clinton indicted. The rest is just details.

The details are complicated, naturally. Whenever something as straightforward as Hillary Clinton’s guilt is eradicated by dizzying theories that statutes are constitutionally infirm or evidence is lacking, it is because clever lawyers have obscured the forest by picking at the trees. But here, too, a couple of themes help us navigate the swirl. First, there is a way the Justice Department and the FBI go about things when they are trying to make a case versus not make a case. In the former, their default mode, they are aggressive — sometimes hyper-aggressive. In the latter, less frequent mode, they channel the defense lawyers they usually work against. In the Clinton investigation, the FBI became the defense lawyer.

Second, when convincing evidence shows that a suspect took every action necessary to violate a criminal statute, cases come down to the mental element that must be proved beyond a reasonable doubt — mens rea, criminal intent. Contrary to the narrative spun by the president, Justice Department officials, media talking heads, and the FBI director, mens rea is neither complicated nor difficult to prove in most cases. People are presumed to intend the natural and foreseeable consequences of their actions. When a suspect has no defense for her actions, though, her lawyer is sure to claim that her intentions were ambiguous, even benign. Those are the cases that ought to be indicted and tried. When they are, juries tend to laugh the mens rea defense out of court. But the Obama Justice Department is chockablock with defense lawyers, so the FBI wasn’t laughing.

This gets to the legerdemain at the heart of Director Comey’s recommendation against the prosecution of Clinton for felony mishandling of classified information. The former secretary patently violated the 1917 Espionage Act — specifically, the subdivision (section 793(f) of the federal penal code) that prohibits government officials with security clearances from exercising “gross negligence” in storing classified information outside its proper place of custody (e.g., the government’s secure classified e-mail system) or transmitting it to people not authorized to have it. Even by Comey’s account, Clinton and her underlings were “extremely careless” in their handling of top-secret intelligence. That’s the very definition of gross negligence. Yet Comey rationalized that the statute could not be applied to Clinton because Congress’s criminalization of mere “negligence” was constitutionally suspect; therefore, the theory went, the FBI could not greenlight prosecution absent proof of willful misconduct, a higher mens rea standard.

This is a specious argument. It is, to begin with, a red herring: an attempt — which has been wildly successful, by the way — to minimize Clinton’s misconduct in the public mind, as if it were indisputably nothing worse than unintentional recklessness. In point of fact, there is substantial evidence that Clinton’s mishandling of classified information was willful. A secretary of state’s stock-in-trade is classified information. By setting up an unauthorized, non-secure e-mail system, she rendered it inevitable that classified information would be disseminated through and stored on that system. This brute fact cannot be dismissed, as the FBI dismissed it, by pretending that mishandling classified information was not the purpose of the homebrew server system. It was an easily predictable effect — and, again, people are deemed to intend the foreseeable consequences of their actions.

As Representative Trey Gowdy (R., S.C.) pointed out to Comey in a late-September hearing, false exculpatory statements are among the best proof of criminal intent. Clinton made them by the truckload: devolving, as the known facts grew worse for her, from assertions that she never sent or received classified information to the subtle amendment that she meant information “marked classified” to risible feigned ignorance about classified markings in her e-mails (pretending that she believed the ubiquitous “(C)” — for confidential — in classified documents had something to do with placing paragraphs in “alphabetical order”). Remarkably, however, Comey never considered Clinton’s testimony, rife with misleading assertions, before Gowdy’s House Benghazi Committee; and he rationalized that Clinton’s mendacious public statements were somehow irrelevant because she hadn’t lied directly to the FBI — a claim that proved indefensible when the Bureau’s report of Clinton’s FBI interview, replete with incredible statements and claims of memory lapse, was released on the sleepy Friday before Labor Day weekend.

In essence, the FBI first strained to overlook powerful proof of willful law violation that would have made Clinton prosecutable under a different Espionage Act subsection, 793(e). Having thus tied its own hands, the FBI claimed it was stuck with trying to make the case under the supposedly problematic 793(f).

On that score, it was preposterous for Comey to maintain that negligence (the usual standard for liability in civil cases) is not a valid predicate for criminal charges. Negligence is prescribed by legislatures as the mens rea element in criminal statutes involving extremely careless behavior that has catastrophic consequences — for example, states routinely prosecute negligent homicide.

Comey nevertheless insists that 793(f) has rarely been charged (just once ever by the Justice Department) because the Justice Department has concerns about its constitutionality, owing to reservations expressed by some lawmakers when it was enacted. The director’s rationalizations are dispensed with by a precedent, National Organization for Women v. Scheidler, that became a favorite of prosecutors such as Jim Comey and I when the Supreme Court decided it in 1994. In Scheidler, the justices ruled that criminal statutes must be applied as Congress has written them — courts are not at liberty to enhance the prosecution’s burden (in Scheidler, by trying to force the government, in racketeering cases, to prove that a criminal enterprise had an “economic purpose” — which Congress had not required). As the Court reasoned, what matters is the unambiguous words that Congress has enacted, not meanderings by individual lawmakers mined from legislative history or enforcement guidelines promulgated by the Justice Department.

In Clinton’s case, Comey did exactly what the Justice Department regularly tells judges they must never do: rewrite criminal statutes to impose heightened protections for criminals. The law presumes the constitutionality of all congressional statutes, to say nothing of those, like 793(f), never ruled infirm after a century on the books. The FBI’s job is to gather evidence that proves offenses as defined by Congress, and the Justice Department’s job is to defend statutes, not undermine them.

Equally flawed is Comey’s rationale that the statute is an outlier that, if enforced as written, could make all Americans vulnerable to criminal prosecution for mere negligence. Far from an outlier, section 793(f) is part of a carefully calibrated scale of offenses. The most serious, traditional espionage offenses, involving intent to harm the United States, are on top; less serious offenses, involving willful mishandling of classified information, are in the middle; and the least serious, involving negligence, are at the bottom. Moreover, 793(f) is triggered only by gross negligence (i.e., extreme carelessness, not mere negligence); and it applies only to a narrow, carefully drawn class: national-security officials with authorized access to classified information, who receive training in the care with which it may be handled — people such as Mrs. Clinton, who writes in her memoir, Hard Choices, about the “strict security precautions” that at times required her and associates to read intelligence “with a blanket over our head” to avoid its being compromised.

Apparently cognizant of the frivolousness of his constitutional claim, Comey concurrently relies on Justice Department tradition: Even if not invalid, 793(f) should not be applied, because the Justice Department nearly never applies it. This circular argument leads to the director’s astonishing conclusion that prosecuting Mrs. Clinton would amount to unequal protection of law: one punishing standard for her, a forgiving one for everyone else.

This is absurd. Mrs. Clinton’s case may be singular, but that is because of the breadth of its audaciousness. No official of such high rank has ever systematically conducted government business through unauthorized, unlawful channels, with the inexorable result that thousands of classified e-mails were generated and tens of thousands of government files — e-mails involving government business, whether or not classified — were destroyed (and even more had their destruction attempted). It is not invidious selective prosecution to subject an offense of unprecedented scope to prosecution under a perfectly fit statute, no matter how infrequently that statute has been used.

Just as significantly, several people have been prosecuted for gross negligence in mishandling classified information. The fact that these are military cases, not Justice Department prosecutions, does not nullify them, as Comey implies. In federal prosecutions, low-level U.S. officers were sent to prison and subjected to other penalties. Director Comey’s factitious distinguishing of these cases is meritless. They involve officials many rungs below Mrs. Clinton’s status who engaged in misconduct geometrically less serious in scope. So yes, there is a different standard of justice for Clinton, but it is laughable to suggest that she got the short end of that stick.

All this legal hocus-pocus was the cleanest way for the administration to effectuate a foregone conclusion: Mrs. Clinton was not going to be prosecuted. Perversely, the FBI’s year-long, forensically meticulous investigation was sold as an exoneration arrived at only after thorough review, rather than a measure of the prodigious amount of evidence against Clinton. The more one kicks the tires, though, the more one sees there was only one way this investigation would end.

FBI reports released under congressional pressure have been eye-opening. Topping the charts is the question, “How is this not classified?” It was asked by Clinton aide and confidante Huma Abedin when the FBI showed her a private e-mail between Clinton and President Obama under an alias — the use of which suggests that it is not Clinton alone with whom Obama exchanges private e-mails, notwithstanding that presidential communications with top officials are highly likely to be classified under the terms of the president’s own executive order. Indeed, General David Petraeus, the former CIA director, was prosecuted for mishandling classified journals that, as Justice Department prosecutors stressed, contained notes of his conversations with Obama.

Abedin shrewdly asked the FBI whether she could have a copy of the Clinton–Obama e-mail. She knew an insurance policy when she saw one: Once it was obvious that Obama had willfully engaged in high-level communications over a non-secure e-mail system, it was certain that his Justice Department was not going to prosecute Clinton and her subordinates for doing so — especially given that the Obama e-mails would plainly be admissible evidence in any prosecution of Clinton.

Thus, the administration quietly announced that Obama’s 22 e-mail exchanges with Clinton would remain sealed under a woolly claim that presidential communications with top officials must remain confidential. Obama will not formally invoke executive privilege, because that sounds too Nixonesque; and the administration will not designate the e-mails classified post hoc, because that would be tantamount to an admission that Obama engaged in the same law violation as did Clinton.

What the president could do, though, was pretend that such conduct was not illegal. Thus did he spout off, while the investigation was ongoing, that Clinton was an exemplary public official who would never intend to harm American national security. This theme was picked up by unnamed Justice Department officials, who told the Washington Post in May that a prosecution was unlikely because of “scant” evidence that Clinton had an intent to harm national security. No matter that proof of such an intent was unnecessary; Comey made this Obama Justice Department theory the linchpin of his recommendation against an indictment.

With an indictment out of the question, the Justice Department spun into inaction. It refused to open a grand-jury investigation (without which an indictment is constitutionally impossible). Without the grand jury, the FBI was unable to use subpoenas, which only the Justice Department has power to issue, under the grand jury’s authority. That led to such inanities as the Justice Department’s granting of immunity from prosecution to Clinton’s accomplices, Cheryl Mills and Heather Samuelson, in exchange for their handing over to agents the private laptops they used to sort Clinton’s e-mails. Investigators typically gather physical evidence by demanding its production via subpoena or seizing it via search warrant (which also requires Justice Department assistance). What the law empowers them to compel, they do not attempt to acquire through cajolery, by granting such monumental accommodations as the promise not to use the physical evidence against its possessor. But they did in this case.

Republican lawmakers have observed that immunity was handed out like candy. Usually, immunity grants that effectively remove the possibility of filing charges are a last resort for the FBI and the Justice Department. They are given when an investigation has stalled and the only practical way to make the case against the main culprits is to forfeit the right to prosecute a low-ranking player in return for his testimony. But even then, immunity is not the preferred course. If there is evidence that the low-ranking player has committed a crime, prosecutors squeeze him to plead guilty and cooperate in exchange for sentencing leniency. That’s a much more reliable method for getting complete cooperation.

But not in the Clinton e-mails case. Paul Combetta, the computer technician at Platte River Networks — the contractor who serviced Clinton’s server — initially lied to FBI agents by denying that he had deleted Clinton’s e-mails from the server. Rather than prosecute him for false statements and obstruction, the Justice Department gave Combetta immunity . . . whereupon he conceded that he’d done the deleting, using the program BleachBit in an effort to ensure that the e-mails could never be recovered. While he admitted that Mills had instructed him to delete e-mails back in late 2014 (after Clinton had withheld 33,000 e-mails from the batch turned over at the State Department’s request), Combetta incredibly insisted that he had finally deleted the e-mails in late March 2015 of his own volition — neither the issuance of a congressional subpoena right before the destruction of data, nor conversations with Mills and other Clinton attorneys during the process, had anything to do with it. The FBI bought the story.

Mills palpably misled agents when she claimed not to have known about Clinton’s server system during her time as Clinton’s chief of staff at State. Yet, far from being prosecuted, Mills was not only granted immunity in exchange for surrendering her laptop; she was permitted to attend Clinton’s FBI interview as Clinton’s lawyer. Inexplicably, the FBI and the Justice Department indulged this arrangement (for both Mills and the similarly situated Heather Samuelson) even though (a) Clinton already had other top-flight legal representation; (b) allowing Mills, a suspect and key witness, to sit in as counsel transgressed elementary investigative protocols, assuring that any prosecution of Clinton would be sabotaged by defense claims that the FBI had helped Mills get her story straight by listening in on Clinton, and had interfered with Clinton’s defense by eliciting privileged information from a member of her legal team; (c) Mills was barred by attorney-ethics rules from representing Clinton in a matter in which Mills was a substantial participant while working as a government official; and (d) similarly, federal law makes it a crime for a former government official to attempt to influence the government in connection with a matter in which the former official was heavily involved while working for the government.

Recall that Mrs. Clinton is a Yale-educated lawyer who did criminal-defense work early in her career. When she walked into her FBI interview only days before Comey announced his recommendation against indictment, she had to figure that if Mills, a key co-conspirator, was being permitted to attend as an attorney, there could be no way the Justice Department was seriously contemplating any charges.

I don’t doubt Comey’s insistence that the recommendation was his alone — that he did not coordinate it with Attorney General Loretta Lynch, who had besmirched herself by “accidentally” meeting with Bill Clinton only days before Hillary’s FBI interview. But the recommendation was still the only one Comey could make: a product of the self-interested guidance imposed by the president and the most politicized Justice Department in American history.

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