FBI director recommends no criminal charges in Clinton email probe
The author is a former First Assistant U.S. attorney:
As a former federal prosecutor, I disagree with FBI Director James Comey’s assertion that “no reasonable prosecutor” would bring felony charges against Hillary Clinton for mishandling “classified information either intentionally or in a grossly negligent way.” To the contrary, any reasonable prosecutor would indict. “Only facts matter,” as Comey said.
As Secretary of State, Clinton used several personal, unclassified email servers, none supported by full-time security staff. Her email was less secure than Gmail. Among Clinton’s emails, 110 contained information classified at the time sent and received; eight contained Top Secret information. Three emails not produced by Clinton were also classified at the time sent and received. Another 2,000 emails were later determined to contain classified information.
Clinton was “extremely careless,” according to Comey, making it “possible that hostile actors gained access to” classified information.
“There is evidence of potential violations of the statutes regarding the handling of classified information,” Comey said, but he astonishingly opined that no “reasonable prosecutor” would bring charges. There Comey is clearly wrong. I know an army of reasonable prosecutors who would have done just that, if they had been allowed.
Comey listed several factors against prosecution, saying all other cases prosecuted had one or more of the following. A five-minute Google search shows otherwise:
▪ “Clearly intentional and willful mishandling of classified information.” This is not the legal standard for guilt, but Clinton intended to create a series of unsecure servers; she intended to conduct government business on them; she intended to keep classified emails on unsecure servers; she was “extremely careless in handling very sensitive, highly classified information”; and she “should have known that an unclassified system was no place for” these emails.
▪ “Vast quantities of materials exposed in such a way as to support an inference of intentional misconduct.” More than 100 emails classified at the time sent and received, and another 2,000 later determined to contain classified information, sounds “vast.” Comey said that it is quite possible all of them were “exposed” to our nation’s worst enemies.
▪ “Indications of disloyalty to the United States.” Clinton placed her compulsion for privacy and personal convenience above the security interests of the country. Reasonable people can decide whether that shows disloyalty to the United States.
▪ “Efforts to obstruct justice.” Establishment of personal servers so as to keep government records inaccessible is an obstruction of justice. Clinton fought tooth and nail against producing any of the emails. She failed to produce thousands of emails and permanently deleted what she did not produce. Clinton’s evolving statements to investigators, Congress and the American people obstructed justice. On Thursday, Comey testified that Clinton’s claims about her email, some made under oath, were “not true.”
Comey got out of his lane in telling the world no prosecution should, or would, be brought. FBI agents investigate and present facts to prosecutors. Prosecutors decide whether to bring charges. This decision wasn’t up to Comey. Attorney General Lynch accepted Comey’s recommendation in less than a day. No “reasonable prosecutor” would do that.