July 6, 2016. Not many Americans will see more than brief news clips of the statement yesterday by FBI Director James Comey. They should read it all.

            The FBI was investigating whether former Secretary of State Hillary Clinton’s use of a private email server for State Department business violated the Espionage statutes and specifically “whether classified information was transmitted on that personal system.”

            The FBI examined 30,000 emails returned by Clinton to the State Department in 2014. Other emails, which she deemed “not work-related”, were deleted from her server and not turned over. Of those 30,000 about 2,000 were “upclassified” by the agency that “owned” them, that is, they were not necessarily classified when they were sent but were classified during the review.

            However, according to Comey, “110 e-mails in 52 e-mail chains have been determined by the owning agency to contain classified information at the time they were sent or received.” (Italics mine) Of the 52 chains, eight were “top secret,” 36 “secret”           and 8 “confidential.”

            Moreover, thousands of emails deleted and not produced by Clinton as “not work-related” were recovered from her servers or from senders or other recipients and found to be work-related. Three of those were also found to be classified “at the time they were sent.”

            Clinton has repeatedly said that she never sent or received classified information in her emails. As information about the content of some of the emails was leaked over the months, Clinton started to rephrase, stating that she never sent or received information “marked” as classified.  Comey pointed out that some of the emails were actually marked as containing classified information and continued “But even if information is not marked ‘classified’ in an e-mail, participants who know or should know that the subject matter is classified are still obligated to protect it.”

            Comey’s statement continued, “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”

            Examples of this type of information in the emails and reported elsewhere are identification of sources of foreign intelligence and discussions of selection of drone attack targets.

            The FBI also investigated the security on Clinton’s system and Comey reported ”None of these e-mails should have been on any kind of unclassified system, but their presence is especially concerning because all of these e-mails were housed on unclassified personal servers not even supported by full-time security staff, like those found at Departments and Agencies of the U.S. Government—or even with a commercial service like Gmail.”

            The FBI’s conclusion was that it was “possible that hostile actors gained access to Secretary Clinton’s personal e-mail account.” Reviewing the factors listed in Comey’s statement supporting that conclusion, I consider it “likely” rather than “possible.”

            Comey summarized “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.” (Italics added)

            Earlier, Comey had pointed out that one Espionage statute makes it a felony to “to mishandle classified information either intentionally or in a grossly negligent way.” (Italics mine) Another makes it a misdemeanor to “knowingly remove classified information from appropriate systems or storage facilities.”

            The FBI Director is being a bit disingenuous here. “Extreme carelessness” is not a bad definition of “gross negligence.” Indeed Comey went on to concede, “there is evidence of potential violations of the statutes regarding the handling of classified information.”

            Contrary to what one hears from the talking heads on television, Comey was not saying that the criminal charges that could be brought required specific intent rather than gross negligence, although he said there were problems with the “strength of the evidence, especially regarding intent.” He suggested that, in the past, prosecutions under the statute had always been based on a charge of intent, rather than gross negligence.

            Comey overstated that “no reasonable prosecutor would bring such a case.” Certainly many reasonable prosecutors might decide not to bring the case. There would be many practical problems. While an indictment could very likely have been obtained, a conviction would have problematic.

            It is hard to believe that any prosecutor would not consider the fact that the prospective defendant was about to be nominated to be President of the United States. A partisan prosecutor could decide either way on partisan consideration. An objective prosecutor might well decide not to bring a difficult case in those circumstances.

            Comey has performed a great service to the Obama Administration and Mrs. clinton by effectively removing Attorney General Lynch from this difficult prosecutorial decision. He simply got her off the hook from the position in which she placed herself as a result of her private meeting with Bill Clinton last week.

            To this momentous political turning point, Comey brings a considerable reputation for integrity and courage. He garnered this during his service as Deputy Attorney General in the George W. Bush administration when, as acting Attorney General, he backed the White House down on a national security issue and also appointed the Special Prosecutor in the Scooter Libby case. Comey’s repute for probity might stand up better if he had applied his righteousness in a more bipartisan way.

            A large segment of the public would have been unhappy with Comey’s decision, whatever it was. As it stands, Hillary Clinton will claim she has been thoroughly investigated and “exonerated.”

            Clinton’s opponents can point to Comey’s devastating excoriation of her conduct and highlight her repeated lies. Indeed some of Clinton’s advocates are already complaining about Comey’s unprecedented detailed figurative indictment of Clinton without an actual indictment. Before long they will be claiming she should have been indicted so she could defend herself.

            Oddly, Comey’s statement reminds me a bit of situations when I was on the bench and had decided to give a large break to a defendant. To make the other side feel better and as a lesson to the defendant I would give him a verbal thrashing before giving him the Not Guilty or probation. Comey seems to have attempted something of this sort here.

            In the end, the Private Email Server Scandal will join Whitewater, the Rose Law Firm billing records, Travelgate, trashing of her husband’s sexual victims, misuse of pardons, theft of White House furnishings, Benghazi and undue influence at the State Department purchased for contributions to the Clinton Foundation in the junkyard of the Vast Right-Wing Conspiracy.

            There is no adult in the United States who does not already have an opinion about whether Hillary Clinton is a serial liar. This case (or the lack of one) will not affect anyone’s opinion. Many will vote for her in spite of their opinion.

           

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