No reasonable person could possibly square what FBI Director James Comey said about Hillary Clinton’s use of a personal e-mail system during her time as Secretary of State with his final recommendation.
On Tuesday, Comey spent 15 minutes meticulously detailing every illegality of Clinton—including her negligent behavior and obstruction of the investigation. And yet, at the end of it all, he offered the absurdly counterintuitive position that no “reasonable prosecutor” would bring charges in such a case.
Well, everything the director said challenged that conclusion. At one point, for example, Comey explained that any “reasonable person should have known this was not an appropriate venue for classified emails.” Only minutes before that, Comey also said that “gross negligence” would suffice for prosecution. So is he accusing the presidential candidate of being too dumb to comprehend what a top secret document is or how an email account works? Because any other explanation makes no sense.
According to the FBI, Clinton sent 110 emails containing clearly marked classified information. Thirty-six of them contained secret information. Eight of those email chains contained “top secret” information. Worse still, “We assess it is possible that hostile actors gained access to Secretary Clinton’s personal e-mail account,” Comey explained.
There are few, if any, scenarios I can conceive of that are more grossly negligent when it comes to classified documents than sending them through an unsecured email account in a place where hostile actors can access them. Perhaps Comey could offer the nation an example of what it takes to be prosecuted. What if Hillary left a folder marked “top secret” in front of the Chinese embassy in Russia? Would that do it? I doubt it.
Here’s another question that worth asking: Do presidential candidates have to admit they intended to commit a crime for the FBI to recommend the Justice Department prosecute? In the case of Clinton, it seems so. The FBI doesn’t believe there was intentional misconduct on the part of Clinton. Why did she ignore FIOA requests and fight Congress every step of the way? Why did Hillary lie or mislead law enforcement and the public if it was just an innocent mistake?
On March 1 of this year, Clinton alleged that she “never sent any classified material — nor received any — marked classified.” This was a lie. Hillary asserted that before becoming secretary she merely wanted only one device “for convenience.” This was also lie. The FBI found that Clinton “used numerous mobile devices”—not to mention servers. Any reasonable person could ascertain she was attempting to evade the public. She archived nothing and hid everything until she was discovered. The FBI unearthed several thousand more work-related emails by finding traces of these in decommissioned servers. Other emails were found in accounts of high-ranking officials at other agencies who also, according to Comey, should have known better. It was widely known that she used a private, unsecure email. How is that not grossly negligent?
Granted, I’m not a lawyer, but 18 U.S. Code 1924 — “Unauthorized removal and retention of classified documents or material” — clearly states that anyone who “knowingly removes” 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.” Perhaps a prosecution would have been tough, but everything Comey laid out in his press conference — until the very end — only substantiated that Hillary had nonchalantly mishandled classified information.
The case also speaks to trust of government. Comey claimed that he put on this unusual press conference because a high-impact case deserves extraordinary transparency. But transparency doesn’t exempt him from criticism or his investigation from political pressure. Comey basically admits as much near the end of his press conference.
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.
Many people have been prosecuted for far less, including John Deutch, Sandy Berger, David Petraeus, and lesser-known names. Comey’s own words tell us Hillary should have met a similar fate. Hillary will campaign with Barack Obama today, creating the perception that the fix was in. Yesterday, a week after her husband had a private meeting with the Attorney General, some Democrats signaled through a New York Times story that Hillary would probably rehire Loretta Lynch. The stench of Clinton corruption is back. She is above the law. And there is no one to stop her.