For those who know me it will come as no great surprise that I'm not a fan of Hillary Clinton.
This article is NOT about bashing Clinton. It is about the flagrant disregard for the rule of law as evidenced by the Director of the FBI, James Comey. Today, he made public his findings on the Clinton email scandal.
Many in this country feel, correctly, that today the application of the rule of law is more applicable to some than to others. Just consider a poor, inner city youth who commits a crime, the same crime as comitted by an affluent youth. Who serves jail time and who doesn't? We all know the answer to that one.
But, this specific case raises the bar significantly - Or, lowers the bar, depending on one's point of view. The "little person" is truly dealt with in a manner wholly different than one who is "connected politically".
Forget about your opinions of Hillary Clinton and the email scandal. Forget about my opinions of Hillary Clinton and the email scandal. Let's, instead, only look at Comey's words - nothing more - and investigate further.
Toward the end of this I'll touch on some issues Comey did not address - but still sticking to only his words. These make the "investigation" by his team all the more curious.
Note: For the video of Comey's announcement, Click Here. For just the transcript of his speech, Click Here.
Before continuing, the following should be noted to place my comments in context:
Having spent the vast majority of my working career dealing in the classified world, I feel absolutely certain that others in the same or similar professional line would agree that:
Anyone, and I mean anyone, having done only that which Comey outlined would not only have been fired, but their security clearances would have been rescinded - never again to be reinstated, they would never be allowed to work on sensitive government contracts/areas ever again, and would have been sent to prison. And, that's a fact.
Comey even alluded to the above in his statement: "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." He, of course, left out the potential for criminal charges - which there would be.
My Analysis of Comey's Offering:
He spent about 14 minutes explaining to us how Mrs. Clinton and her colleagues wontedly disregarded and violated the law (assuming one bothers to actually read the law in question). Then, he announced his findings: Not enough evidence to reasonably recommend charges being filed.
His actual words were: "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."
I have no legal background; but, even I know that it is NOT the job of the FBI Director to make a judgement as to whether a, or any, prosecutor would deem to "bring such a case", be that prosecutor "reasonable" or not. This could easily be construed as obstruction of justice on Comey's part - or at least malfeasance in office.
However, the key word in the above is the word "reasonable". Being reasonable is very subjective. For, what might seem reasonable to me may not be viewed as such by you - and, vice versa. That makes neither of us correct or incorrect; it merely means we have a difference of opinion.
Is it a fair application of the law for a police agency, which the FBI is, to recommend anything to a prosecutor based on the feelings of said agency? Should not any recommendation be based on the evidence; that is, the facts of the case? Well, one would certainly hope so. Apparently, not so in this specific case.
Comey started off by offering us this: "The referral focused on whether classified information was transmitted on that personal system."
While certainly pertinent, the classified element of the actions taken by Mrs. Clinton, et. al., are not the only issues that should have been investigated. More on this is a moment.
Comey offered: "...there is evidence that they were extremely careless in their handling of very sensitive, highly classified information."
The first of significant issues in the above statement is the underlined words "extremely careless".
Looking up the word "carless" in a legal dictionary, one finds "negligent" as an offered meaning of the word. "Gross negligence" is defined as a failure to use even the slightest degree of care. I would offer that "failure to use even the slightest..." kind of defines "extremely"; wouldn't you?
Why is the above important? Let's look at 18 U.S. Code § 793, paragraph (f) specifically: "(1) through gross negligence permits the same (i.e., classified information) 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,..". Paragraph (f) ends with: "Shall be fined under this title or imprisoned not more than ten years, or both.". That's why!
Now, we can all quibble over a distinction between "extremely careless" and "gross negligence" all we want. However, it's like bantering about how many angels can dance on the head of a pin. Pointless!
From Comey's own words:
"For example, seven e-mail chains concern matters that were classified at the Top Secret/Special Access Program level when they were sent and received. These chains involved Secretary Clinton both sending e-mails about those matters and receiving e-mails from others about the same matters. There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation."
If that doesn't speak to "gross negligence", I'm not certain what does. Of course this means that the manner in which emails were handled, especially classified ones, points to extremely careless/gross negligence; therefore charges citing 18 U.S. Code § 793 could and should have been recommended as a reasonable course of action. The evidence was and is there!
Further, Comey offered:"Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, ...".
Were a failure of intent a viable defense motion, then nobody, from those accused of running a stop sign to felony murder, would be brought to trail. Try using the "I didn't intend to.." the next time you are stopped for speeding. Intent might play into a sentencing decision; but, not whether one is guilty or not.
Well, of course, there's THIS that Comey could have viewed as precident.
Now, on to some obvious ommissions by Comey.
Throughout his statement he cites many examples of how government information was mishandled. For but one example he stated: "The FBI also discovered several thousand work-related e-mails that were not in the group of 30,000 that were returned by Secretary Clinton to State in 2014."
There are laws on the books that speak to this exact thing - classified or not. Check out these:
44 U.S. Code 3101 On the handling of government information.
18 U.S. Code 1924 On the handling of classified information and/or documents.
18 U.S. Code 2071 On the concealment, removal, or mutilation generally of government/classified information.
Whereas Comey clearly indicated the focus of the investigations was on classified information, his explanations of his investigations talked of violations of the above laws as well. So, why were these other laws not even considered worth investigating? The evidence was and is there!
P.S. An article I wrote prior to Comey's announcement may provide additional insight.