What does one do when a hitherto highly respected FBI director declines to connect obvious dots? Ace prosecutor Andy McCarthy, in the linked article, explains how the FBI chief Comey used “intent” as a requirement for statues that do not require deliberate commission of crimes — Hillary Clinton’s “extremely careless” conduct Comey cited thus suffices:
In essence, in order to give Mrs. Clinton a pass, the FBI rewrote the statute, inserting an intent element that Congress did not require. The added intent element, moreover, makes no sense: The point of having a statute that criminalizes gross negligence is to underscore that government officials have a special obligation to safeguard national defense secrets; when they fail to carry out that obligation due to gross negligence, they are guilty of serious wrongdoing. The lack of intent to harm our country is irrelevant. People never intend the bad things that happen due to gross negligence. [Italics mine.]
McCarthy added that contrary to what Comey stated, most “reasonable” prosecutors would have recommended that the Justice Department indict Hillary.
WSJ’s James Taranto summed up in his July 5 “Best of the Web” column the pass Comey gave Hillary, by quoting the FBI chief’s remarks directly:
To be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences. To the contrary, those individuals are often subject to security or administrative sanctions. But that is not what we are deciding now. [Italics mine.]
Taranto translates: “In other words, laws are for little people.”
Former Reagan-era U.S. attorney Rudy Giuliani slammed (6:28) Comey — who worked under Rudy back then — for his call. Rudy noted that the very words — “extremely careless” — Comey used to describe Hillary’s conduct are the same words used in standard legal definitions of gross negligence. Here is one authoritative definition, comparing ordinary to gross negligence, from a prestigious source:
An indifference to, and a blatant violation of, a legal duty with respect to the rights of others.
Gross negligence is a conscious and voluntary disregard of the need to use reasonable care, which is likely to cause foreseeable grave injury or harm to persons, property, or both. It is conduct that is extreme when compared with ordinary Negligence, which is a mere failure to exercise reasonable care. Ordinary negligence and gross negligence differ in degree of inattention, while both differ from willful and wanton conduct, which is conduct that is reasonably considered to cause injury. This distinction is important, since contributory negligence — a lack of care by the plaintiff that combines with the defendant’s conduct to cause the plaintiff’s injury and completely bar his or her action — is not a defense to willful and wanton conduct but is a defense to gross negligence. In addition, a finding of willful and wanton misconduct usually supports a recovery of Punitive Damages, whereas gross negligence does not. [Italics mine.]
[West’s Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.]
The specific provision of federal law that applies to Hillary’s case does not mention “intentional” or “willful” misconduct. Sub-section 18 U.S.C. 793(f), reads in full:
(f) 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. (All emphases mine.)
Thus, Hillary could have theoretically faced ten years for each violation — in her case, numerous — of this provision.
Rudy added that Hillary wouldn’t pass the FBI background check for a security clearance. He noted that prosecutors almost never prove a case via direct evidence, which rarely exists in cases like insider trading or bribery — but instead rely on circumstantial evidence. The prosecution would, Rudy stated, a specific jury charge, that Hillary’s destruction of 34,000 emails permits jurors to infer Hillary’s guilt. He called the closing of the case a “special exception for the Clintons.”
Circumstantial evidence involves connecting dots. As for insider trading, think Hillary’s cattle futures mega-score; re bribery, think the regular mode of business of the Clinton Foundation. My June 2016 TAS article listed Hillary’s cavalcade of scandals. A review of the extensive — hardly exhaustive — list shows how undeserving of FBI leniency she is.
Comey tried to justify his acts at his July 5 press briefing (15:30), in which he stated:
In looking back at our investigations, into the mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts.
All the cases prosecuted involve some combination of clearly intentional or willful mishandling of classified information or vast quantities of information exposed in such a way to support an inference of intentional misconduct or indications of disloyalty to the United States or an obstruction of justice. But we do not see those things here.
EARTH TO COMEY: OF COURSE THERE IS NO PRECEDENT FOR BRINGING A CASE, AS NO ONE EVER DID THIS BEFORE.
The recent State Dept. IG report on Hillary’s email-related misconduct found that no prior secretary of state did anything like Hillary did in setting up a homebrew server that stored and forwarded classified information — including some top secret data.
A-G Michael Mukasey made several cogent points in a WSJ op-ed.. Soldiers have been prosecuted for inadvertently bringing classified information home and putting it in a desk. Mukasey also noted that in David Petraeus’s case he communicated information to his biographer, who had a lesser level of security clearance (JW: higher than Hillary’s confidante Sidney Blumenthal, who had none), but there is no evidence anyone else received it. Judge Mukasey also raised the issue of “graymail” — legal parlance for a defendant’s ability to force public disclosure at trial of government secrets, giving bargaining leverage to the defense to lessen or escape outright punishment for crimes committed. In a July 5 interview (not posted) Mukasey gave the example of intelligence agencies forced to disclose that they discovered foreign hacks into Hillary’s server, which would alert our enemies that we had discovered such intrusions.
Once again, the Clintons escape accountability for horrendous mishandling of classified information — in this case, for violations unprecedented on the part of a cabinet member in any administration since the law Hillary clearly violated was passed in the 1930s. Hillary also violated records retention law; sub-section (a) of which provides:
(a) Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both.
What the law did not do, and this administration will not do, may, however, be done by the voters come November. Else we will find ourselves with a president who takes office having learned anew the lesson that crime, actually, often does pay — in more ways than one.