In Buzz Commentary

The FBI's decision not to pursue charges against Hillary Clinton seems contradictory to its director's own statement. (PHOTO: WikiCommons/Gage Skidmore)

The problem with the FBI's remarkable Hillary Clinton email decision

This is remarkable. FBI Director James Comey admits that there was "evidence" of potential violations of the law by Hillary Clinton, but then says he won't refer charges for them against her.

Those aren't my words. Those are the words of Comey. Specifically, he said this week:

"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."

You can read Comey's full statement here.

Comey then twisted himself into a pretzel trying to explain why the FBI was overlooking that "evidence" in its recommendation to the Justice Department, which has the final say.

Here's the thing. It's hard to read Comey's own comments and not believe that, had they really wanted to, the agency could have brought a case against Clinton. It wouldn't have been an easy case, certainly, but based on Comey's own words, it seems that the evidence was there to try, had a determined agency desired to do so. Instead, Hillary Clinton gets a likely pass. To be sure, it would be no small thing to bring a case against the presumptive Democratic nominee for president. However, to many people, letting her slide by does not pass the smell test. And here's why.

Comey said in his public statement that he believed Clinton or her colleagues were "extremely careless" with classified materials. The statutes that Comey says the FBI was looking at involve intent (as many Clinton supporters pointed out, intent could have been hard to establish in this case). However, one statute also merely required that Clinton be "grossly negligent."

Here is what Comey said specifically about being extremely careless:

"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."

And here's what he said about gross negligence:

"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."

How is being extremely careless (Comey's own words) with our nation's secrets NOT gross negligence? Will Comey explain? Can you be extremely careless without being grossly negligent? Don't they basically mean the same thing?

Furthermore, I think it's time Hillary Clinton and Bill Clinton avoid starting sentences with "I did not ... " After all, read what Hillary Clinton said on video before the FBI director announced he wasn't referring charges against her in the controversy over her emails:

"I did not email any classified material to anyone on my email. There is no classified material, so I am certainly well aware of the classification requirements, and did not send classified material."

You can watch her actually saying this on video.

That's not what Comey said investigators found, though. Among many details about classified emails in his statement this week, Comey said:

"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."

However, it's one thing to lie to the American public (not that this is a good thing, of course), but it's quite another thing to lie to investigators (which, unlike the David Petraeus classified materials case, has not been proven). And that is a key difference.

In fact, it's one point that Comey made in his announcement about why the FBI is not referring charges against Clinton. He claimed that there was no cover up, essentially, as was seen in other cases. Although he didn't specifically mention Petraeus by name, the implication is there, since the former CIA director and retired general admitted he lied to the CIA and FBI when asked whether he gave books with classified information to the biographer with whom he was having an affair.

So it appears that FBI Director Comey is saying that he won't charge Clinton with the crime partly because he didn't find the cover up. That's a new one. It does beg the question as to whether or not Clinton did the crime. Comey said that he couldn't find another case with the exact same facts (hasn't stopped prosecutors before) and that Clinton's case was different in a few ways. He said other 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."

But through his own words, the law doesn't require intent. And obstruction would just be an additional charge. Thousands of emails passed through Clinton's servers. And the law doesn't require indications of disloyalty.

As for intent, in his statement Comey also said that a few (but not all) of the classified emails sent and received through the Clinton email servers had markers that designated them as classified materials. So it strikes me that this fact, presented by Comey himself, could have been used to build a case accusing Clinton of intent. Furthermore, as Comey pointed out, Clinton was Secretary of State and surely should have known better. We're supposed to believe the Secretary of State doesn't understand what classified material is or doesn't bother to find out?

It's true that in both the Petraeus and Clinton cases, the laxity with our nation's secrets did not end up causing harm to the nation's intelligence community – at least not that we know of. This is, though, perhaps an argument for mitigation at sentencing or, as was seen in the Petraeus case, the justification for a plea deal to a lower charge (he pleaded guilty to a misdemeanor for mishandling classified materials, and was sentenced to probation and a massive fine).

However, the lack of harm isn't a reason to excuse criminal conduct. The other point here is that both Petraeus and Clinton clearly took actions that could have exposed the nation's intelligence community to harm. Petraeus' biographer didn't publish the secrets he shared. However, in Clinton's case, Comey said the FBI didn't find direct evidence that any hostile party had hacked into Clinton's emails, but he also said the FBI could not rule that out.

That point is worth repeating. The FBI could not rule out whether hostile parties had hacked into Clinton's emails.

Comey works for the administration of the president, and the current one supports Clinton. The ultimate charging decision will be made by the Attorney General, who recently hunkered down with Bill Clinton on a tarmac.

The other shocking point in the Comey statement is that Hillary's lawyers were allowed to do the sorting as to which emails were work-related and should be provided to investigators.

Finally, Comey admits that other people might be treated differently than Hillary was treated, receiving sanctions. He admits this! He said, "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."

It seems clear from the FBI director's own words that the FBI could have recommended charges against Hillary Clinton if the agency had the stomach for it. Thus, it's well within bounds for the rest of us to wonder why they did not.


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