Viewed under the standard of legal interpretation required of any law school class or even jury instruction in America today, FBI director James Comey’s press conference Tuesday recommending no prosecution be undertaken of Hillary Clinton resulting from the large-scale investigation into her emails would make no sense.
Based on Comey’s relation of the facts in the case, Clinton is almost unquestionably guilty of multiple violations of Section 793(f) of the federal penal code, which reads as follows:
Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) 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, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or 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.
As Andrew McCarthy noted at National Review, Congress expressly wrote that statute to exclude the necessity of criminal intent as an element of guilt. If you’ve mishandled classified information or state secrets in a way that would expose them to unwanted eyes or if you know of such mishandling and don’t act to notify the authorities, you’re guilty of violating 18 U.S.C 793(f). Period. It doesn’t matter whether you intend to harm the government by doing so.
And Comey laid out the elements of what Hillary has done in a fashion that exploded any myths she might have made about her conduct.
“From the group of 30,000 e-mails returned to the State Department in 2014, 110 e-mails in 52 e-mail 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; 36 of those chains contained secret information at the time, and eight contained confidential information at the time. That’s the lowest level of classification,” Comey said.
Then he went further.
“Now, let me tell you what we found. Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of the classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information,” Comey said.
“For example, seven e-mail chains concerned matters that were classified at the top secret special access program at the time they were sent and received. Those chains involved Secretary Clinton both sending e-mails about those matters and receiving e-mails about those same matters.”
And more. “There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position or in the position of those with whom she was corresponding about the matters should have known that an unclassified system was no place for that conversation.”
“None of these e-mails should have been on any kind of unclassified system,” he stated. “But their presence is especially concerning because all of the e-mails were housed on unclassified personal servers, not even supported by full-time security staff like those found at agencies and departments of the United States government or even with a commercial e-mail service like Gmail.”
And then it got worse.
“With respect to potential computer intrusion by hostile actors, we did not find direct evidence that Secretary Clinton’s personal e-mail domain in its various configuration since 2009 was hacked successfully. But given the nature of the system and of the actors potentially involved, we assess we would be unlikely to see such direct evidence,” said the FBI director.
“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 domain was both known by a large number of people and readily apparent.”
Then he divulged something that hasn’t been publicly known…
“She also used her personal e-mail extensively while outside of the United States, including sending and receiving work-related e- mails 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.”
In other words, she was sending and receiving e-mails, quite likely including classified information, on an unsecured server while using a wireless connection in Russia or China or some other potentially hostile country.
Consider what happened to David Petraeus for essentially loose pillow talk with his biographer and then digest what Comey said.
But he wasn’t finished…
“To be clear, this is not to suggest that in similar circumstances, a person who gauged this activity would gauge no consequences,” he said. “To the contrary, those individuals are often subject to security or administrative sanctions but that is not what we are deciding now.”
Translation: if she was somebody else, like one of you peasants, she would be fed to the lions for this.
Then Comey said “No reasonable prosecutor” would pursue this case, which is hard to reconcile with the above.
McCarthy said he can’t understand what Comey is saying, and offered up a legal explanation for why this is nonsense. He said the FBI conflated 18 U.S.C. 793(f) with another statute that requires intent, and Comey essentially commingled the two in a way defense lawyers might in order to snow a jury into letting a defendant off on a technicality.
“Judges generally do not allow such sleight-of-hand because innocence on an uncharged crime is irrelevant to the consideration of the crimes that actually have been charged,” he mused.
“It seems to me that this is what the FBI has done today. It has told the public that because Mrs. Clinton did not have intent to harm the United States we should not prosecute her on a felony that does not require proof of intent to harm the United States. Meanwhile, although there may have been profound harm to national security caused by her grossly negligent mishandling of classified information, we’ve decided she shouldn’t be prosecuted for grossly negligent mishandling of classified information.”
How to explain all this? You won’t make sense out of the legal or factual case here. We all know she’s guilty, and what’s more we know why she went to all the trouble to break the law and move classified information through an unsecured server in somebody’s bathroom closet. She did that to mask the corrupt dealings in which she was engaged surrounding the Clinton Foundation and her using it as a clearinghouse for the sale of U.S. policy to the highest bidder. Which, of course, was not discussed in Comey’s press conference despite the fact we know the FBI was looking into it.
No, if you want to understand Comey’s statements you might have to recall those messages the downed pilots at the Hanoi Hilton occasionally would record for the folks back home — and particularly the one Rear Adm. Jeremiah Denton offered up, in which his happy statements about humane treatment by the North Vietnamese were obscured by what looked like unnatural blinking. When Denton’s off-putting tics were matched with Morse code, it was obvious he was spelling out the word “torture” to the American public.
Comey’s statements can be seen as a bit like Denton’s. He laid out a perfectly defensible case for prosecuting Hillary and then gave a cursory, obviously indefensible case for leaving her alone at the end. In doing so, he set the American public ablaze with outrage and signaled to all who would listen that something fundamentally corrupt is going on in the Justice Department.
And Comey telegraphed it as well. His press statement was delivered on the first working day after a week in which DOJ was set afire in public over Attorney General Loretta Lynch’s attempted clandestine meeting with Bill Clinton, and after a weekend in which news reports speculated that Lynch’s current job was waiting for her in a Clinton administration. Not to mention he delivered it on a day Hillary Clinton was to fly with the president on Air Force One to make a joint campaign appearance in Charlotte. Comey then opened his statement by stating that nobody at the Justice Department knew in advance what he would say, which seemed a bit tortured in its own right. Of course they knew; it had already been leaked in the media that DOJ wouldn’t prosecute, right after Lynch had offered up a fraudulent statement that she’d go with whatever recommendation the FBI sent her. That horse had long been gone from the barn.
Comey signaled that while he wasn’t going to deliver an all-out Al Pacino in And Justice For All rant for the cameras, what he was going to do is set Hillary ablaze in the public square. He had no ability to commence a prosecution; Lynch was not going to prosecute regardless of the FBI’s recommendation, and if he broke from the pack all he’d get himself was fired — plus whatever dirt the Obama administration might have had on him would be public by the end of the week, and there is certainly some; this administration doesn’t have employees they don’t have leverage over. But since he did what he was told and fell on the sword by not recommending charges, they don’t really get to complain about the tone or specifics of his statement, do they?
Frankly, Al Pacino’s final scene in And Justice For All would have been much better TV. It would have carried with it more integrity, too, as a truly decent man wouldn’t be able to stomach working in such a despicably corrupt administration, so a nuclear blast coupled with a white-hot resignation would have been most fitting for the supposedly straight-shooting Comey.
But in 2016, that’s not what we get. Government service is service of the government, not the people, and people who don’t know that don’t get government jobs in this day and age. Comey, supposedly an honest man, is a willing captive of the disgustingly corrupt ruling establishment, and the best we could hope for is a Hanoi confession like we received on Tuesday.
If you know Morse code, you might check the playback of his press statement. Let us know if he’s spelling out “T-O-R-T-U-R-E.”
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