The FBI Director, James Comey/Hillary Clinton email investigation has been bothering me a lot since July 5th, 2016 when Comey announced that he was not going to recommend the filing of criminal charges against Hillary Clinton over her use of a private, unsecured email server. Comey said there was insufficient evidence to show Clinton had malicious intent.
Perhaps we should not take him at his word and re-look some of the facts.
I listened to Comey’s presentation live on the radio and have since read the entire presentation a couple times. His conclusions and recommendations absolutely fly in the face of the very simple verbiage in the law and in his findings.
Comey, 5 July, 2016: “Good morning. I’m here to give you an update on the FBI’s investigation of Secretary Clinton’s use of a personal email system during her time as Secretary of State.”
Comment: It was not an investigation “update”; he shut it down.
Comey: “The investigation began as a referral from the Intelligence Community Inspector General in connection with Secretary Clinton’s use of a personal e-mail server during her time as Secretary of State. The referral focused on whether classified information was transmitted on that personal system.
Comey: “Our investigation looked at whether there is evidence classified information was improperly stored or transmitted on that personal system, in violation of a federal statute making it a felony to mishandle classified information either intentionally or in a grossly negligent way.”
Comment: The mission statement was perfect. This is a good time to take a look at the simple law the FBI was investigating:
18 U.S.C. 793(f) “Whoever, being entrusted with or having lawful possession or control of any document…… relating to the national defense,through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost,stolen, abstracted, or destroyed, …. and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer…… shall be fined under this title or imprisoned not more than ten years, or both.
Comment: The law is clear as a bell. I spent years of my service with classified documents in my possession. When one gets a security clearance, be it low level or Top Secret, you must meet with a documents expert who clearly defines what you can and cannot do. While they are with you, you must also read a document that again clearly tells you what you must do to secure the documents at all times. Then they require you to sign the document, in their presence, stating that you understand it all and they keep the document. Hillary would have signed just such a document like the rest of us were required to do. It is designed to scare the hell out of you and it does just that. Bottom line, screw up and you go to jail. People do screw up and they do go to jail.
Comey: “Secretary Clinton used several different servers and administrators of those servers during her four years at the State Department,and used numerous mobile devices to view and send e-mail on that personal domain.”
Comment: Another nail in the coffin; indisputable piece of evidence. And none of these pieces of equipment were secure.
Comey: “From the group of 30,000 emails …. 110 emails in 52 email chains have been determined by the owning agency to contain classified information at the time they were sent or received. Eight of those chains contained information that was Top Secret at the time they were sent.”
Comment: There it is,there is the damaging information that routinely sends mere mortals to jail. Period. But it gets worse. Later in his statement Comey said:
“Seven e-mail chains concern matters that were classified at the Top Secret/Special Access Program level when they were sent and received. These chains involved Secretary Clinton both sending e-mails about those matters and receiving e-mails from others about the same matters.”
Comment: I am sure you all recognize that any document with a Top Secret classification will contain information that is sensitive to the extent that it can most certainly negatively impact national security if it falls into the wrong hands. But, some of you may not be familiar with “Special Access Program” information. Let’s say,for example, that the CIA has an informant who is very highly placed in the Iranian government and is also very close to Iran’s leader, Hassan Rouhani. This would be an example of a Special Access Program. There may be only a few (perhaps as low as 4 or 5) who would have access to that case. Special Access Programs have special requirements. You are “read in” by member of that particular program. Discussions are held only in a Sensitive Compartmented Information Facility (SCIF) where sensitive information can be viewed and discussed to preclude spying, surveillance or interception. It is never transmitted by any means that is subject to interception. When special access information is compromised, people can die. Hillary would definitely be knowledgeable about all of the requirements and restrictions associated with Special Access Programs. There is no greater crime associated with US Code 793(f) than this violation. “Gross negligence” doesn’t even begin to define what has happened.
Comey:“There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation. In addition to this highly sensitive information, we also found information that was properly classified as Secret by the U.S. Intelligence Community at the time it was discussed on email.”
Comment: OK, it is beginning to look like a cut-and-dried case.
Comey: “Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in the handling of very sensitive, highly classified information.”
Comment: As we will learn later, this is the point where Comey begins to retreat from the hard, irrefutable evidence. First, understand there is no requirement in the US Code 793(f) that any prosecutor has to even deal with intent; just being“gross negligent” is enough to convict. Also, we see here that Comey has made a distinction between “gross negligence” and his new chosen words “extremely careless”. On this subject, I recall listening to a law professor comment on the distinction the day following Comey’s presentation. The professor’s position was that anything can be defined and if he asked his first-semester law students to define “gross negligence” and they responded with “extremely careless”, they would get an “A” on the quiz.
Comey: “Only a very small number of the emails containing classified information bore markings indicating the presence of classified information. But even if information is not marked “classified” in an email, participants who know or should know that the subject matter is classified are still obligated to protect it.”
Comment: Comey is absolutely correct. But, during the FBI investigation, you will recall whenever Hillary was asked about emailing classified material, she would say, “I never sent or received any emails that were marked classified.” That is not a valid defense.
Comey: “While not the focus of our investigation, we do assess that hostile actors gained access to the private commercial e-mail accounts of people with whom Secretary Clinton was in regular contact from her personal account. We also assess that Secretary Clinton’s use of a personal email domain was both known by a large number of people and readily apparent. She also used her personal email extensively while outside the United States, including sending and receiving work-related emails in the territory of sophisticated adversaries. Given that combination of factors, we assess it is possible that hostile actors gained access to Secretary Clinton’s personal e-mail account.”
Comment: This is about as far beyond “gross negligence” as one could possibly get. Maybe, we should call it extremely-gross-negligence-and-stupidity. During a House Judiciary Committee meeting, Rep. Louie Gohmert, R-Texas, said the inspector general of the intelligence community found that most of the emails on Clinton’s server were sent to a “foreign entity”. Also, the Daily Caller News Foundation reported that a Chinese state-owned firm located in the Washington, D.C., area had access to Clinton’s emails in real time courtesy of a code embedded in the New York-based server which then made copies of the emails, some of which contained classified information.
Comey: “Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgement is that no reasonable prosecutor would bring such a case.”
Comment: Absolutely false. The following day, 6 July, law professors and prosecutors across the country were being interviewed and the consensus was that this would be a slam-dunk conviction for a first-year law student.
Comey: “Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent.”
Comment: Again, THE CODE DOES NOT REQUIRE THE PROSECUTORS TO EVEN CONSIDER INTENT. The reason is, if someone clearly “intends” to put highly classified information in the wind,they fall into an entirely different category of offenders; they are conducting treasonous actions. US Code 793(f) is about negligence.
Comey: “Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past. We cannot find a case that would support bringing criminal charges on these facts.”
Comment: That is pure,unadulterated BS. For example, a recent case in the news was about a sailor, Kristian Saucier, who took some pictures while serving on a US nuclear submarine to show his family what his job was. The FBI investigated, a grand just indicted, he was found guilty and went to jail.
Comey: “I know there will be intense public debate in the wake of this recommendation, as there was throughout this investigation. What I Can assure the American people is that this investigation was done competently, honestly, and independently. No outside influence of any kind was brought to bear.”
Comment: RE Comey’s “competence”. Well known former federal prosecutor Andy McCarthy has gone so far as to say that replacing the words “gross negligence” with “intent” rewrites the stature to serve political ends.”
RE “no outside influence,” Comey’s boss, Attorney General Loretta Lynch,instructed Comey to refer to the entirety of the FBI actions as an “inquiry”rather than an investigation.
RE“competence”. Witnesses were allowed to have co-conspirators attend their meetings with the FBI investigators. No records were kept of the discussions. Co-conspirators were given immunity but were not interrogated against the primary target, Hillary. Hillary was not interviewed until the last minute and she was allowed to defend herself by having a poor memory.
RE“competence”. The FBI Director decided that “extreme carelessness” was a better description of the actions of the co-conspirators and it was not equivalent to gross negligence so there could be no prosecution.
Oh, by the way, recall that the AG, Loretta Lynch, met on the tarmac in Phoenix, June 28th, 2016, to have a supposed-to-be-secret meeting on Bill Clinton’s private airplane while the Hillary investigation was in its final days. Judicial Watch said, “Lynch’s decision to breach the well-defined ethical standards of the Department of Justice and the American legal profession is an outrageous abuse of the public’s trust. Her conduct and statements undermine confidence in her ability to objectively investigate and prosecute possible violations of law associated with President Clinton and Secretary Clinton.” Clearly, there should have been media outrage and Obama should have fired her.
My conclusions: Comey was wrong on the law. He chose to ignore blatant, damaging,irrefutable evidence against Hillary, no matter how potentially damaging her actions were.
The “I’ in FBI strands for investigation yet Comey set himself up as investigator, prosecutor, judge and jury.
Clearly, Comey should have recommended that the DOJ, at the very least, convene a grand jury to decide whether the case had merit to indict.
Without a grand jury finding to indict, there would be no warrants. There would be no subpoenas. There would be no compelling testimony of any sort.
In spite of his contradictions and pathetic investigation, Comey knew he was covered; Obama had his back; his boss, Loretta Lynch, had his back; the mainstream media had his back.
The fact that President Trump eventually fired Comey should not be an issue. The issue is, why didn’t Obama fire him in July, 2016 for dereliction of duty. But of course, that could not happen as Obama was campaigning for Hillary referring to her as, “the most qualified presidential candidate in history.”
Best courses of action going forward: 1) the new Attorney General takes the FBI investigation findings, as is without Comey’s conclusions and recommendations, and gives them to a grand jury for action. 2) Then, perhaps appoint a Special Council to look into the possible politicization and outright dishonesty in the upper echelons of the Justice Department and FBI during the 2016-2017 time frame.
Marv Covault