The Fatal Flaws in Comey’s Theory of Why Clinton Shouldn’t Be Prosecuted
by ANDREW C. MCCARTHY
July 11, 2016
In a quarter century in law enforcement, I never encountered anyone more confident, or with more reason to be confident, than Jim Comey. The former Bush Justice Department deputy attorney general turned Obama Justice Department director of the Federal Bureau of Investigation has earned bipartisan plaudits for a reason: He is as able as it gets. The nation got to see that this week: first, in his tour de force press conference both damning and clearing Hillary Clinton; then, just 48 hours later, in his deft jousting with a Republican-led House committee rankled by his decision to give a pass to the Democrats' putative presidential nominee.
So well did Director Comey perform that you barely noticed his rationale withering away.
In arguing that Mrs. Clinton should not face felony charges of grossly negligent mishandling of classified information, the director illustrated that Mrs. Clinton is overwhelmingly guilty of grossly negligent mishandling of classified information. It made me wonder how many dozens - scores? hundreds? - of defendants Comey, in his 15 stellar years as a federal prosecutor, had convicted on a bare fraction of the proof he outlined against the former secretary of state.
Comey piled fact upon fact showing intentional misconduct - the setting up of a non-government, non-secure e-mail server system for the conduct of official business, in violation of guidelines Clinton was obliged not only to follow but to enforce; the transmission of classified information (including some of the government's most closely guarded intelligence secrets) - information Clinton had to know was classified at the time it was sent, some of which was even marked classified (notwithstanding her serial denials of that tell-tale fact); the herculean effort to destroy any trace of thousands of government files, notwithstanding over a year's worth of vows that no government-related information had been included in the 32,000 e-mails she attempted to delete rather than surrender to the State Department.
On and on Comey went: shredding one Hillary lie after another; all but guaranteeing that her "extreme carelessness" had resulted in the penetration of her communications by foreign intelligence services; pointedly rebuking Clinton's recklessness in discussing top-secret intelligence via a homebrew system so amateurishly unsecure she'd have been better off using your teenager's Gmail account.
In the end, nevertheless, he let her off the hook. Bursting with pride over the bureau's forensic prowess and investigative energy, he left the listener certain his agents had built the slam-dunk case to end all slam-dunk cases, only to conclude with a thud that the case was too weak to charge. Not only too weak but so wanting, he proclaimed, that no reasonable prosecutor could think otherwise.
Turns out there are a lot of unreasonable prosecutors. Can it be that too many of them are retired and cranky, that from up here in the peanut gallery, the job looks a lot easier than it is?
Maybe . . . but I don't think so.
And it turned out the director's sense of reasonableness was, well, a bit more nuanced than it sounded at the press conference. In his House testimony, Comey posited that the weakness lay not in the FBI's evidence but in Congress's law. The statute criminalizing gross negligence in mishandling classified information was, he maintained, infirm.
It was his theory, however, that needed firming up. My antennae tingled during his opening statement when the director claimed that even the Congress that enacted the 1917 Espionage Act feared the relevant provision might violate "American tradition."
Jim Comey is a really good lawyer. When good lawyers are confident that a law is invalid, they tell you it is unconstitutional. When a legal technician says "unconstitutional," that's a hard conclusion he backs with solid argument. On the other hand, when he says "tradition," he's in the touch-feely penumbra realm - "y'know, this kinda sorta just doesn't seem right . . . "
The director's problem was soon apparent: "American tradition" was not going to cut it. Unless there is a clear constitutional flaw, the Justice Department is in the (well-supported) habit of telling courts that they are required to presume the constitutionality of congressional statutes. Congress expected nothing less from an FBI director who, in effect, was exercising prosecutorial discretion in nixing an indictment of the very guilty-looking Mrs. Clinton. Comey was going to have to explain why the statute was lacking.
He couldn't. Again, that should have been no surprise because - if he had a convincing theory, he would have come out of the box with it. There have been cases brought under this law - most of them in the military system, but those are United States courts, too. The law has never been held unconstitutional. Federal prosecutors, moreover, occasionally use the law in plea negotiations - a no-no if government lawyers think a law is invalid. Comey said some lawmakers were nervous about the statute when it was passed - but they still passed it.
In the end, the best the director could do was contend that Justice Department lawyers worried about it. When pointedly asked how he would amend the statute to shore it up, Comeydeclined to offer a suggestion other than that the committee should contact DOJ.
The theory the director half-heartedly offered - viz, that criminal laws require proof of intent to cause harm or violate a legal duty - was full of holes. Criminal statutes that punish negligence are not the norm, but they are far from unheard of. As Comey had to concede, most states criminalize negligent homicide. Moreover, what courts want to ensure is that Congress thinks through criminal laws. The gross-negligence law at issue is not an isolated provision; it is part of a framework in which Congress carefully crafted a sliding scale for offenses involving mishandling of classified information: the most serious, involving an intent to harm the United States, on top; the least serious, involving gross negligence and failing to report loss or improper transmission, at the bottom.
The law is not unconstitutional . . . though I have little doubt that Justice Department lawyers do worry about it. When Mrs. Clinton is involved, Justice Department lawyers tend to worry - whether it is the attorney general (whom Mrs. Clinton, wink-wink, says she just might retain) meeting with Mrs. Clinton's husband on a tarmac at the key juncture of the investigation; or the government lawyers who thwarted FBI agents when they dared try to ask Mrs. Clinton's top confidante, Cheryl Mills, about the process of deciding which e-mails Mrs. Clinton would deign to surrender to the Justice Department (as opposed to the 32,000 Team Clinton tried to destroy).
In the end, Director Comey was left to claim that, even if the law was constitutional, it still could not be used because . . . well . . . it is not often used. Therefore, the reasoning went, to use it would be to have two sets of rules - one that singled out Mrs. Clinton, another that let everyone else skate. This was a truly remarkable suggestion in connection with the Clintons, who have long cheated the laws and standards that apply to the rubes. More to the point, it was both wrong and objectionable.
Director Comey says the law has been used only once since its enactment, a representation he can make only by omitting the several times it has been used against military personnel. When that picture is clarified, the real double standard emerges: low-ranking soldiers are convicted and sent to the brig for comparatively trivial negligence; the secretary of state is given effective immunity for an offense that was systematic and gargantuan.
Moreover, selective prosecution claims routinely fail in federal court. Statutes are presumed constitutional and if a defendant's conduct fits what Congress has forbidden, prosecution under the statute is presumptively proper. Some statutes are not frequently employed because the criminal conduct is highly unusual - one would expect that it is the rare public official trusted with a high security clearance who is not just negligent but grossly negligent in handling the nation's defense secrets. Statutes, however, do not become unavailable simply because the Justice Department rarely resorts to them. No one could look at Mrs. Clinton's objectively outrageous behavior in this case and believe a criminal statute that perfectly matches what she has done was being applied in bad faith.
Finally, much as I admire Jim Comey, it is simply not his place as FBI director to decline a worthy prosecution over concern about a prospective and dubious selective-prosecution claim. He has made much of the fact that the FBI, consistent with its well-deserved reputation for professionalism, kept the politics at arm's length and treated this case like any other. But does the FBI really do in every case what it did in this case?
The bureau's job is to develop evidence that proves the essential elements of criminal offenses proscribed by Congress - and yes, the agents appear to have done the job very well here. Yet, the FBI is not there to analyze the validity of the statutes. And even more attenuated from the investigator's role is the FBI's assessment of legal claims a defendant might make about the propriety of a prosecution.
That is the Justice Department's job. Director Comey should have let them do it. They have become expert at defending the indefensible.
A version of this piece also appeared on National Review Online.