“Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through.” Jonathan Swift
“It is an old saying that the quickest way to ruin a military career is to mishandle money or classified documents. Military defense counsel do well to remember that most old sayings are true.” USALSA REPORT: Trial Defense Service Notes: Practical Aspects of Trying Cases Involving Classified Information, Major Joseph A. Woodruff, Fort Rucker Field Office, U.S. Army Trial Defense Service, U.S. Army Legal Services Agency (June, 1986)
On Tuesday, July 5, 2016 the top police official in the Nation, FBI Director James B. Comey, told the American public the FBI would not recommend criminal indictment of Hillary Rodham Clinton. The complete text of Comey’s statement is available on the FBI’s website.
The Director’s statement is divided into four parts. First, the Director explains the purpose for his “unusual statement.” Second, the Director explains the nature of the investigation. Third, he explains what the FBI found. Last, the Director explains the FBI’s decision.
While seemingly straightforward, James Comey’s lengthy statement shows inconsistencies—due perhaps to his unease with the decision. Was he pressured? One cannot but wonder.
Comey explains the investigation into Clinton’s use of a personal e-mail server to conduct Government business, “during her time as Secretary of State.” The depth and breadth of that investigation shows the enormity of Clinton’s detestable behavior.
This is after all a criminal investigation. Comey makes that fact plain. He points out the investigation proceeded as a referral from the Intelligence Community Inspector General.
“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, or a second statute making it a misdemeanor to knowingly remove classified information from appropriate systems or storage facilities.”
Comey doesn’t cite the federal Statute Hillary Clinton violated. It is this one: 18 U.S.C. § 793. Title 18 of the U.S. Code is titled “Crimes and Criminal Procedure.” 18 U.S.C. § 793 falls within Chapter 37. Chapter 37 is titled, “Espionage and Censorship.” 18 U.S.C. § 793 is titled, “Gathering, transmitting, or losing defense information.” Specifically, 18 U.S.C. § 793(f) and (g) reads, “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 his 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.”
Clinton claims her use of a personal server—actually several personal, private servers—to store or transmit government business simply shows, at worst, poor judgment—something her hangers-on and toadies willingly concede. If so, that alone should preclude her from serving as U.S. President. Clinton also claims her use of a personal server to store and transmit Government business didn’t offend State Department policy. She’s wrong. It does. She says, too, use of a private server to conduct Government business doesn’t rise to the level of a crime. Actually, it does.
Clinton suggests her behavior isn’t illegal because no federal crime pertains to the kind of behavior the F.B.I. investigated. Were that true, the F.B.I. would have no legal basis to investigate Clinton. But Clinton is wrong. Her actions and behavior fall precisely within violation of a specific federal criminal law, namely, 18 U.S.C. § 793(f). That Statute is the peg the FBI hangs its hat on when it commenced its investigation of Clinton’s use of a private server to conduct federal Government business.
Oddly, after reciting both the nature and extent of Clinton’s actions, one expects the Director to recommend indictment of Clinton to the Attorney General, Loretta Lynch. He fails to do so. Understand, this does not mean Clinton didn’t violate 18 U.S.C. § 793(f). The Director of the F.B.I., James Comey, doesn’t say that. He never says that; nor does he intimate that. He does say,
“Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past.”
So, the Director makes manifestly clear that Hillary Clinton did, in fact, commit a crime–a felony. She clearly violated 18 U.S.C. § 793(f). Still, concern and confusion reign over Director Comey’s decision because Comey doesn’t follow through and recommend indictment of Hillary Clinton on the ground of the sheer quantity of damning evidence against Clinton and the serious nature of it which he lays out in exquisite and excruciating detail. But, why did Comey issue a statement to the American People if, after recitation of such damning evidence against Clinton, he forbears, entirely, from recommending indictment? Why, especially, did he issue a statement abruptly following the F.B.I.’s interview of Clinton?
Reporting on that interview, The New York Times stated, “It could take weeks or longer to reach a decision. . . .” It didn’t. See, “F.B.I. Interviews Clinton over Private Email Server.” Amy Chozick, July 2, 2016. So the Times must have been taken aback when Comey responded with a public statement a few days later.
The Director of the F.B.I. says “I think the American people deserve those details in a case of intense public interest.” He also says, “I have not coordinated or reviewed this statement in any way with the Department of Justice or any other part of the government. They do not know what I am about to say.” Is that second assertion true? Perhaps. But, consider: Obama had made plans to campaign with and for Hillary Clinton in North Carolina later that day. They were both on their merry way to North Carolina when Comey delivered his statement to the American public.
Comey asserts no other part of Government knew what he would say. But that assertion doesn’t imply that another part of the federal Government didn’t know Comey would deliver a statement. Clearly, Obama knew that. He must have known that. Many other officials in Government must have known that the Director of the F.B.I. would be making a statement to the public.
More to the point, although Comey asserts he didn’t tell anyone in Government what he would be saying–he hadn’t given anyone in Government the text of his statement–that doesn’t mean Comey didn’t inform Obama, and others, of the F.B.I.’s decision. After all, Obama and Clinton were off, that morning, to be seen together–to campaign together–in North Carolina. Would a sitting President be seen campaigning with a candidate for the highest Office in the Land if that President harbored doubts as to Comey’s decision? Not likely.
Director Comey drafted his decision with care. Each word is measured. We must parse it to understand the motive behind it and the content of it.
F.B.I. Director Comey says, “In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.”
This passage is troubling—no less so because, again, Comey drafted his statement with great care. Comey probably intended for the American public–and must certainly have intended for the legal community–to perceive a gaping hole between what the F.B.I. investigation uncovered on the one hand and, on the other hand, the peculiar reasoning and incongruent decision emanating from that investigation.
For example, the F.B.I. director says no case law exists to support a recommendation to indict Hillary Clinton. But a paucity of case law shouldn’t factor into the Director’s decision. The absence of a fact pattern similar to or the same as those falling into actual cases is legally irrelevant. And, whether prosecutors would be likely to obtain a conviction, that, too, shouldn’t factor into the F.B.I.’s decision since the F.B.I. wouldn’t be prosecuting the case. The Attorney General’s Office would be prosecuting the case. Moreover, would the F.B.I. dare speculate as to the outcome of a case given the stakes? After all, we are talking about the behavior of a person who seeks the highest Office in the Land. Let the Attorney General make the call whether or not to prosecute Clinton. The question is, rather, simply and clearly, whether the facts of the matter under investigation meet the requirements of a federal criminal statute. They do. The facts of the matter under F.B.I. investigation meet the requirements of 18 U.S.C. § 793(f). That is sufficient. That is enough to warrant recommendation of indictment.
Director Comey also stresses the absence of actual knowledge on Clinton’s part when he discusses Clinton’s actions and behavior in this matter. But Hillary Clinton need not have actual knowledge of her wrongdoing. Actual knowledge isn’t required. The mental state of the actor as set forth in 18 U.S.C. § 793(f) is met if the actor “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.” Congress clearly established a lesser standard, apart from the stringent standard of actual knowledge, to support a criminal charge under 18 U.S.C. § 793(f). Intent to commit a wrong under 18 U.S.C. § 793(f)–that is to say, actual knowledge of mishandling of classified Government information under 18 U.S.C. § 793(f), isn’t necessary. A critical element of the Statute is satisfied once “gross negligence” is present. The presence of “gross negligence” on the part of Clinton and others in the State Department exists—in fact, “gross negligence” exists many times over. This is clearly manifest in Director Comey’s recitation of Clinton’s many wrongs in handling classified Government information when delineating them to the American public.
But, oddly, Comey refrains from ever mentioning that Clinton’s mental state does meet the standard of gross negligence even if she didn’t have actual knowledge of wrongdoing. Black’s Law Dictionary (Ninth Edition) defines ‘gross negligence’ as, one, ‘a lack of slight diligence or care,’ or, two, ‘a conscious, voluntary act or omission in reckless disregard of a legal duty and of the consequences to another party. . . .” That standard has been met. Why, then, does Comey rely exclusively on a higher standard of ‘actual knowledge’ to commit a crime under 18 U.S.C. § 793(f) when the mental state of the actor is satisfied through a lesser standard of ‘gross negligence.’
The Director of the F.B.I., James Comey, says this: “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 their handling of very sensitive, highly classified information.” By avoiding use of the expression, ‘gross negligence,’ Comey draws the listener to his outrage over Clinton’s behavior but veers from categorizing that behavior as criminal within the meaning of 18 U.S.C. § 793(f), which would have mandated a recommendation of indictment.
Black’s Law Dictionary (Ninth Edition) also defines the word, ‘careless,’ a word the Director of the F.B.I. does use when categorizing Clinton’s actions and conduct. The legal meaning of the noun form of the adjective, ‘careless,’ namely, ‘carelessness,’ is ‘the fact, condition, or instance of a person’s either not having done what he or she ought to have done, or having done what he or she ought not to have done; heedless inattention.’ Black’s Law Dictionary (Ninth Edition) says the word, ‘carelessness’ can be a synonym for ‘negligence.’
Granted, the mental state necessary to invoke 18 U.S.C. § 793(f) isn’t met through the presence of simple negligence. But, Comey says Clinton or her colleagues “were extremely careless in their handling of very sensitive, highly classified information.” By adding the adverb, ‘extremely,’ to the adjective, ‘careless,’ Director Comey implies that Clinton’s actions and behavior do meet the standard of ‘gross negligence,’ set forth in 18 U.S.C. § 793(f). Comey’s decision not to recommend indictment of Hillary Clinton, under 18 U.S.C. § 793(f), is, ultimately, and essentially, inconsistent with the import and purport of 18 U.S.C. § 793(f), and with Comey’s own clear understanding of the Statute’s meaning and of the Statute’s clear application to Clinton’s conduct.
The expressions, ‘extreme carelessness’ and ‘gross negligence’ are functional equivalents. But, Comey has decided he won’t recommend indictment, and, since the precise expression, ‘extremely careless’ or ‘extreme carelessness,’ does not appear in 18 U.S.C. § 793(f), Comey achieves a modicum of cover–a bare minimum of cover–having used the expression, ‘extreme carelessness,’ in lieu of the expression, ‘gross negligence,’ to explain Clinton’s actions and behavior relating to the use of personal, private, unsecured servers to conduct Government business. Nonetheless, the Director of the FBI makes abundantly clear that he finds Clinton’s actions and behavior detestable–unworthy of one who would be Secretary of State, let alone of one who would be the President of the United States. He boldly castigates Clinton and her colleagues constantly, relentlessly. His caustic words rise well above mere admonishment.
So, again, we must ask: was the Director of the F.B.I. pressured into letting Clinton go? We think so. Director Comey has the weight of the future of this Country on his shoulders. Had he recommended indictment, the Attorney General, Loretta Lynch, would have had to accept the recommendation or recuse herself from acting upon it. Obama would not be able to intervene in Clinton’s behalf without looking more the fool and proclaiming, beyond any doubt, his own disrespect for our Country’s laws and legal process. Hillary Clinton, for her part, would have to cease campaigning, at once.
Comey’s statement bespeaks both the frustration of an honorable man caught in the middle of a blistering episode in our Nation’s history, compelled to render a decision he would rather not, but clearly disgusted over Clinton’s actions and behavior as Secretary of State. He is intent on illustrating that disgust to the American People. F.B.I. Director James Comey sets forth the grounds for recommending indicting Hillary Clinton with scintillating clarity. The arguments he propounds against doing so are, contrariwise, extraordinarily lame. Did Comey specifically intend to demonstrate, to the American People, a disconnect between the strength of the grounds for recommendation of indictment and the weakness for failing to do so? Did he intend for the American People to understand that “his hands were tied?”
Certainly, James Comey’s tacit message to the American People is clear. Hillary Clinton’s actions and behavior as Secretary of State–whether one understands the criminality of them or not–were, at the very least, altogether unworthy of a person holding a Cabinet Level position. Comey is tactfully saying that, for the well-being of the Country, and to show respect for the American People, Clinton should have the decency to withdraw her candidacy. But, “decency” isn’t a component of Hillary Clinton’s character. Hillary’s character is one devoid of decency. It is one devoid of trustworthiness, of sincerity, of integrity. Indeed, had the Director of the F.B.I. recommended indictment and if the Attorney General accepted that recommendation, Clinton likely would, given the choice, continue campaigning. But, she wouldn’t be given that choice. She would have to be carried out, kicking and screaming “from the room.”
So, where does that leave Americans? We have a choice this November. No less than the fate of this Country rests in the balance. The American People must consider the ramifications of electing Hillary Clinton to the highest Office of the Land. Clinton’s character, as U.S. President won’t change. That is clear. That, we know. Clinton’s behavior and actions as Secretary of State present more than an inkling of the erratic behavior and dangerous action should she become President of the United States. Criminal indictment or not, Hillary Rodham Clinton is a public disgrace. She should not be considered worthy of holding any public Office, let alone the highest Office in the Land.
Of course, many individuals who support Hillary Clinton’s candidacy do not give thought to the weight of James Comey’s words. They only look to and address his decision. But, then, these same people couldn’t care less if Clinton were indicted. They would argue that indictment isn’t equivalent to conviction. But, suppose Clinton, once indicted, was convicted of violation of 18 U.S.C. § 793(f). Would that make a difference to them? Probably not.
Those Americans who support Hillary Clinton’s candidacy are blind to Clinton’s multiple character flaws. They are blind to her errant and erratic behavior. They are blind to her lack of emotional stability. They are blind to her lack of competency. Those Americans who support Clinton’s candidacy are altogether blind to her loathsome lust for power and to her singular obsession with self-aggrandizement.
Those Americans who support Clinton’s candidacy cannot envision or, perhaps, they simply refrain from considering the threat Clinton poses to the preservation of our Bill of Rights, the threat posed to the preservation of our Heritage, to our culture, to our History, to the very existence of an independent Sovereign Nation and free Republic.
Obama says that the American People may hold to an “imaginary past” or they may “reach for the future.” For Barack Obama and Hillary Clinton America’s “past” is and was just a dream, a chimera, an illusion. They seek to reconfigure America—to twist it, to reshape it beyond anything our Founders envisioned for it. Obama’s message to the American People comes across as a damning threat, less so a welcome promise of things to come if Clinton does in fact secure the White House.Copyright © 2016 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.