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Prosecution 101
Pictured: FBI Director James Comey. Not Pictured: Someone with prosecutorial discretion.
As to the case in point, FBI Director James Comey is not a prosecutor: He is an investigator and, as such, does not have prosecutorial discretion to exercise. His responsibility is to merely report facts found. It is the job of the attorney general — conveniently missing in action — to apply the law to those facts and to decide whether to present them to a grand jury or to file charges directly (i.e. file an “information”). Notwithstanding this, prosecutors and investigators both do have clout in suggesting administrative penalties to other officials, whether or not a prosecution takes place. After recitation of Hillary Clinton’s “carelessness,” for example, a “reasonable prosecutor” would almost certainly have suggested that her security clearance be lifted. Even if they don’t “get you” criminally, it is in the nature of prosecutors to still want the satisfaction of a “gotcha” of some kind or another.
Most prosecutors want to obtain convictions, to the exclusion of most every other consideration. They particularly want to convict notorious, infamous, or powerful individuals, which award the most “points,” in terms of name recognition and prestige. While it is most gratifying to convict on the most serious charges imaginable, that’s not always possible, let alone easy. To the extent a prosecutor retains a vestige of idealism, he wants to get bad actors. How, then, do they determine who the bad actors are?
Think back for a moment to Al Capone. The list of his felonies was very long, yet he went to jail for income tax evasion; much easier to prove than heading a crime empire. Capone’s legion bad acts were common public knowledge, but the prosecutor simply had to find a convenient — and easy-to-prove –charge to stick him with and send him to prison.
In light of this principle, how might an impartial prosecutor have viewed Hillary Clinton? He would know that the reason she did not use government email in the first place was to avoid the strictures of the Federal Records Act and the Freedom of Information Act. He would be acutely aware of the months of public misdirection and many outright lies Clinton told. He would be aware of the nature of the Clinton Foundation and the repeated “donations” made by parties with business before the Department of State. Beyond appearing improper, many of these may yet turn out to have been quid pro quos. In short, there was ample basis on which to conclude she had a guilty state of mind. The presence of that state of mind is often the main determinant of whether or not the subject of an investigation becomes a defendant of formal criminal allegations; i.e., whether or not one is charged with a crime.
The very fact that Comey de-emphasized Clinton’s essential motive — to conduct her official duties in secret, without documentation — casts grave doubt on his impartiality. In a very real sense, he participated in misdirection by focusing only on acts which could be dismissed as “careless.” Further suspicion is evinced from President Obama’s April interview with Chris Wallace, where the president states unequivocally that Clinton did not damage national security, with special emphasis on the words “intent” and “careless” (wink, wink).
As with Al Capone, every sentient person knows Clinton wanted, above all, to hide her paper trail, and this betrays her guilty state of mind or mens rea. That was the reason for the private servers in the first place. There was nothing negligent about their creation and use: It was intentional and it was done for the guilty purpose of failing to maintain required public records. Keeping such records is an essential element of honest government and this is precisely the type of corrupt motive prosecutors use in deciding to prosecute; it betrays a most corrupt purpose in a politician, especially one who presumes to leadership. Even if Comey thought it might be difficult to obtain a conviction on those charges related to record keeping and accountability, he ought at least to have spoken to its toxic effect on leadership and governance. He could certainly have made out all the elements of a case for the lesser charge of gross negligence as to classified documents. He did it right there on camera!
If Comey wanted to “get” Clinton, he had all he needed. Where he deviated from usual practice — beyond acting as the prosecutor in the first place (and it defies credulity that he did not communicate this to his superiors, the president and the attorney general) — was in not loudly and clearly stating her guilty intent to hide her work and not using that as his own motivation to prosecute on some charge which he could make stick.
What Clinton was actually guilty of — in addition to not properly maintaining classified material — was corruption of the essential process of government accountability through maintenance of, and open access to, records. She did that with malice aforethought , the highest standard of intent. She deleted thousands of emails, with intent, at her own discretion. That itself is obstruction of justice and prima facia, felonious.
Comey knew all this and why he chose to not pursue, much less even mention it, I can’t pretend to know. What I do know is that he did not act in any way consonant with the “reasonable prosecutor” he conjured up. He had some other agenda than equality before the law. To that principle, he has done fatal damage.
Published in Law
Excellent. This needs to go main feed and be pinned to the main page for handy reference for anyone who gets involved in these discussions.
Civ,
This is thoughtful and well reasoned. Yesterday we were too much in shock to take this kind of calm accurate look at Comey. He will be testifying before Congress tomorrow. Should be very interesting.
Regards,
Jim
I wondered about this—thank you for addressing it, Civil!
I wholeheartedly concur main feed status.
Agreed. This is a point that needs to be read and discussed more widely.
Any thoughts on her attorneys facing repercussions for their acts in cleaning their systems to the point of preventing forensic recovery? This was obviously a willful act intended to thwart investigation into the emails and appears on its face to be obstruction.
So, is the mere act of doing government business on private servers itself a crime?
Very well reasoned and explained. Thanks.
I’m looking forward (not really) to seeing how the liberals spin her actions as perfectly normal and above board.
The issue with any mens rea such as “intent” is it begs the question of “intent to do what?”
There will be a connection between the “what” and the particular offense at hand.
One of the tricks of the left is to create strawmen. One particular group of examples is to say the accused did not have one of the elements of a crime different from the crime she is actually accused of.
The “intent” that Comey said is not present appears to be for a much more serious crime such as Espionage or Treason. Giving Hillary the benefit of the doubt, one can fairly think she did not have the intent that enemies of the United States would intercept and be aided by the information she sent or received. Comey flagged this irrelevant strawman by highlighting an asserted lack of evidence of foreign government penetration of her server(s). But this “intent” and this “what” is not relevant to half a dozen statutes she could be prosecuted under.
Yes. Main feed, please. CW, did you ask that this not go to the main feed?
It’s been on the main feed for a while.
In a private business heavily regulated by, and fearful of, government interference and sanction of its day to day operations, such acts would be prohibited by clearly defined policies up to and including employee termination, because they put the organization at risk. The question of criminality would be superfluous to the issue, unless through the fallout from something like breach of contract because an employee did not follow the rules he had agreed to.
The selfsame government that meddles with and terrorizes its citizens who are only trying to do their jobs, apparently cannot clearly define, either in policy or in law, what is and is not permissible for its employees to do, and so there are, apparently, no penalties for non-compliance, perhaps because no one even knows what would constitute it.
Some might call this incompetence, but I do not think it is.
Judging by results, it’s a remarkably successful long-term strategy for avoiding responsibility, accountability, and penalty.
They do it because they can.
I don’t know if it’s criminal or just a violation of policy. In DoD we are trained (read bludgeoned extensively) on the proper use of IT. The short explanation is no private devices/accounts, never ever ever ever ever use the wrong classification of system to use or transmit classified material. Ignorance is never an excuse on this.
Every single person who received an email from her containing classified material is also culpable for not immediately reporting the spillage and having the system quarantined and scrubbed of the classified material. Classified and unclassified systems do not interface, so she was not sending things from her home brew server to the SIPRNET. They were receiving these emails from her on the unclassified system.
All the intent necessary for everything that happened can be found in the act of setting up the server. All the rest is details. She knew what would flow from that intentional act.
There is so much criminality here that Comey had to stretch to find a reason, and a bad one, not to recommend prosecution. Namely, that he couldn’t find a previous prosecution on similar facts. Well, this would be the first one. What’s wrong with that?
I think I agree with Andrew Klavan that Comey knew that Loretta Lynch would deep six this, so he opted to do the most harm he could to Clinton by laying out the facts for the public.
Well-written and persuasive, civil westman: thank you.
Yes this is sleight of hand for sure. This deliberate and obvious misdirection constitutes its own malfeasance, as you imply.
And not mentioning this AND the seriousness of this aspect shows us a great deal about Comey. This is not someone who can be trusted with this level of responsibility. He’s clearly a stooge.
But he could still have recommended prosecution (unless Lynch allowing him to speak was contingent on him recommending no prosecution).
Well done, civil!! To clarify a couple of things, I believe Comey has been a prosecutor in the past, but that’s not his role now. Also, he used the words “extreme carelessness”; according to Rudy Giuliani, those are precise synonyms for “gross negligence.” And finally, I keep hearing that it is not necessary to prove intent. One does not intentionally try to break the law! If Comey was a principled man once, I expect that at some point he will realize deep regret over his own gross negligence in his recommendation. I hope he does.
In rereading my OP, I realize that there was a relatively easy alternative route to a conviction for something: conspiracy. It is obvious and readily provable that Clinton conspired with many others of her staff and hirelings to evade the Federal Records Act and Freedom of Information Act. This constitutes a fraud on the US.
The elements of conspiracy are intent (which can be inferred from actions), an agreement to violate federal law or defraud the US (this can also be inferred, but plenty of evidence here), and an act in furtherance of the agreement (setting up the server).
This reinforces my main point. By describing only the narrow issue of how classified materials were handled, Comey (and the MSM whose investigative journalism would have long ago buried a Republican for the same acts) directed attention away from the actual importance of what she did and why she did it. The stage was then set, by him, to dismiss her evil as mere carelessness.
Any thoughtful person who cares about decent governance, knows how corrosive it is to hide one’s official records and acts. It is more egregious to do so through an elaborate conspiracy. I am tempted to assert Comey aided and abetted the conspiracy after the fact by his skillful misdirection. This was not really about mishandling of classified documents. This whole affair was a fraud on the federal record keeping laws to avoid ordinary public accountability. It is very dangerous for this to go unpunished.
It’s almost certain that the fix was in, and probably something like what you describe. Otherwise, it’s not likely that the events of the weekend (Bill on Loretta’s plane, Hillary offering her the job, Obama going with Hillary to NC to campaign, and especially Loretta promising to abide by the FBI recommendation) would have all transpired as they did.
At first my understanding was yes, but maybe not. Look at H.R.1233 “Presidential and Federal Records Act Amendments of 2014”. Specifically section 10.
And here it does spell out some exceptions for copying or forwarding based on “an official electronic messaging account”
So, my understanding is that the use of the private server without saving the emails on an official server account is against regulation.
However, not following this section of H.R.1233 may not be a crime. Maybe someone else could help me out here. It says that
What this means I do not know but I could not see a criminal aspect to this. So maybe this really isn’t a crime from that alone, it could be that the only potential response was administrative action.
Source
http://www.congress.gov/bill/113th-congress/house-bill/1233/text
http://www.law.cornell.edu/uscode/text/5/part-III/subpart-F/chapter-75
Civ,
I just watched Trey Gowdy use his 5 minutes with Comey to totally eviscerate the claim that Comey couldn’t prove intent. I hope we can get a transcript of that testimony.
Regards,
Jim
But you have to look at pre-2014 law.
Civ,
I just watched Jim Jordan walk through the relentless pattern of obstruction of justice culminating in Clinton’s lawyers scrubbing off the final emails that they had refused to surrender and were proven to have work related material. Comey just floated along through it. Jordan repeatedly asking about the word Comey had used “the context of someone’s actions”. Comey stuck to his absurdity. Would like to see the transcript of this.
Regards,
Jim
I’m watching the hearings this morning as well…the first exchange with Chaffetz had me already screaming at my TV.
Help me understand. James Comey testifies to Jason Chaffetz directly that the FBI did not consider or take into evidence Hillary Clinton’s previous testimony to Congress under oath that clearly indicates that she lied to the FBI. Comey stated that the FBI would need permission to access that congressional testimony. What?! It’s a matter of public record accessible to all. It was not testimony given in a closed door session. Since when does the FBI not consider what a target of an investigation says in the public arena prior to being deposed/questioned by the FBI?
Civ,
I just watched Ron DeSantis meticulously question Comey about the nature of obtaining a security clearance and how it could be that Clinton did not know that setting up the server and sending classified communications over it was not illegal. Incredibly Comey just kept floating along and didn’t think this showed any knowledge of illegality or intent. Ron had been very professional until the very end when a “Good Grief” slipped out of his mouth in disgust. We should see the transcript of this.
Regards,
Jim
The issue is confused by the different ways that intentionality is dealt with in the law. Normally you have to intentionally commit the illegal act for it to be prosecutable. This doesn’t mean you have to know it was illegal, only that the illegal act you committed was done intentionally. (I.e. Ignorance of the law is no excuse). But in some cases you don’t even need to show that kind of intentionality. mens rea isn’t required. Speeding is an example. You can’t tell the judge “I didn’t mean to speed.” Why is that? Because speeding endangers other people, and you are responsible for the speed of your vehicle. In other words, it’s illegal even if it was caused by negligence.
I’m watching the hearing right now. A Dem, Mr.Clay, asked ” Did secretary Clinton intentionally violate federal law?” Comey: “We did not develop clear evidence of that.”
It sounds like he’s saying she didn’t know it was illegal when she did it and/or it was done negligently. My understanding is that neither of those is a defense.
Hillary could have muddied the waters if she’d used a .gov domain to conduct some of her business. I don’t think she did (does anyone know for sure?), which would seem to indicate that a reasonable prosecutor would view conspiracy to commit fraud as an airtight case.
Civ,
I just watched Cynthia Lummis mention to Comey that Clinton was a lawyer, former Senator, had been trained, was required to sign a form stating the law. Comey just kept mindlessly saying how difficult it was to prove intent. We should see the transcript of this one.
I’m beginning to wonder whether Comey is actually human? Only some sort of cyborg could just waltz through this and stay on his mindless message.
Regards,
Jim
When Hillary Clinton directly instructs her subordinates to remove classified markings on an email so that it can be sent over a non-secure network that shows clear intent to violate secrecy laws, that she was knowledgable of for years – as a US senator and Secretary of State. This action moves the matter well beyond gross negligence. At this hour, no one has questioned Comey on this particular violation.