Prosecution 101

 
Comey-FBI-Portrait

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
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  1. Bob W Member
    Bob W
    @WBob

    Ms. Lummis reads the statute that says that the intent required is that the accused intentionally maintained classified material at an unauthorized location.

    Comey responds: “It’s more than that though. You have to prove that and prove criminal intent both by law …and practice. They have reserved that statute, even though it’s just a misdemeanor, for people who clearly knew they were breaking the law, so that’s the challenge, so “should have known, must have known, had to know” does not get you there. You must prove … they knew they were engaged in something that was unlawful.”

    In other words, ignorance of the law is an excuse.  Not for speeding. But for handling top secret material.

    • #31
  2. MarciN Member
    MarciN
    @MarciN

    civil westman: 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!

    This is the beginning, middle, and end of this appalling story.

    The entire line of it-was-for-Clinton’s-convenience argument that Obama and Clinton have foisted upon the public is just plain ridiculous. The Democrats are exactly like a crime family.

    Fantastic post.

    • #32
  3. Brian Watt Inactive
    Brian Watt
    @BrianWatt

    From FoxNews January 8, 2016:

    “…one email thread from June 2011 appears to include Clinton telling her top adviser Jake Sullivan to send secure information through insecure means.

    In response to Clinton’s request for a set of since-redacted talking points, Sullivan writes, “They say they’ve had issues sending secure fax. They’re working on it.” Clinton responds “If they can’t, turn into nonpaper [with] no identifying heading and send nonsecure.”

    The passage indicates that Clinton knew what a classified marking was and that in order to receive it over a non-secure network those markings had to be removed. Comey this morning, stated he was not certain that Clinton was fully aware what a classified marking was. Amazing.

    • #33
  4. Man With the Axe Inactive
    Man With the Axe
    @ManWiththeAxe

    Brian Watt:

    The passage indicates that Clinton knew what a classified marking was and that in order to receive it over a non-secure network those markings had to be removed. Comey this morning, stated he was not certain that Clinton was fully aware what a classified marking was. Amazing.

    She’s just an old lady who gets confused by technology, like everyone’s grandma.

    Let’s make her president of the United States.

    • #34
  5. James Gawron Inactive
    James Gawron
    @JamesGawron

    Bob W:Ms. Lummis reads the statute that says that the intent required is that the accused intentionally maintained classified material at an unauthorized location.

    Comey responds: “It’s more than that though. You have to prove that and prove criminal intent both by law …and practice. They have reserved that statute, even though it’s just a misdemeanor, for people who clearly knew they were breaking the law, so that’s the challenge, so “should have known, must have known, had to know” does not get you there. You must prove … they knew they were engaged in something that was unlawful.”

    In other words, ignorance of the law is an excuse. Not for speeding. But for handling top secret material.

    Bob,

    Comey is absolutely hallucinogenic on intent. I’m no lawyer, yet I don’t think there is a reasonable person in the country that doesn’t think she knew what she was doing and intended to do it.

    Comey is full of it.

    Regards,

    Jim

    • #35
  6. James Gawron Inactive
    James Gawron
    @JamesGawron

    Civ,

    Bill Clinton –

    It depends on what the meaning of the word is is.

    James Comey –

    Did she intend to have the intent to massively break Federal Law?

    https://youtu.be/aVVjxPGDda4

    Far out.

    Regards,

    Jim

    • #36
  7. Lily Bart Inactive
    Lily Bart
    @LilyBart

    I, for one, want to thank Comey for his service to this country. I salute his courage in recognizing that Hillary’s specialness and historicalness  are far more important than the ‘Rule of Law’.  I mean, why are we so hung up on that anyway?

    I think he was very clever in concentrating on that Intent part of the law, because that silly Gross Negligence part would be super problematic for Hillary.

    I sincerely hope that his name is forever attached to this special service he rendered to our country – and that his earned reputation lives well beyond his physical life.  May it be his epitaph:  “James Comey, the man who believed Hillary Clinton was above the Law!”.      Perfect!

    • #37
  8. Penfold Member
    Penfold
    @Penfold

    Any chance Comey hopes it’s decided that he screwed up this whole thing so badly that some other body will need to re-investigate?

    • #38
  9. Brian Watt Inactive
    Brian Watt
    @BrianWatt

    Penfold:Any chance Comey hopes it’s decided that he screwed up this whole thing so badly that some other body will need to re-investigate?

    Ice cube…hell.

    Only if a Republican administration decides to reinvestigate.

    • #39
  10. James Gawron Inactive
    James Gawron
    @JamesGawron

    Civ,

    I missed the name of the rep. that asked the question.

    “There is no precedent for punishing this kind of crime. If Hillary Clinton becomes President what is the guarantee that she wouldn’t do the same thing and not be punished?”

    Comey –

    “I’m not qualified to answer that question.”

    Regards,

    Jim

    • #40
  11. Lily Bart Inactive
    Lily Bart
    @LilyBart

    So, is Comey’s career over, or will the democrats take care of him for his service rendered to the cause?

    • #41
  12. James Gawron Inactive
    James Gawron
    @JamesGawron

    Civ,

    Rep. Mark Walker –

    Lying under oath is a crime is it not?

    Comey –

    Yes.

    Walker –

    What’s the penalty?

    Comey –

    It’s a felony.

    Regards,

    Jim

    • #42
  13. Bob W Member
    Bob W
    @WBob

    James Gawron:

    Bob W:Ms. Lummis reads the statute that says that the intent required is that the accused intentionally maintained classified material at an unauthorized location.

    Comey responds: “It’s more than that though. You have to prove that and prove criminal intent both by law …and practice. They have reserved that statute, even though it’s just a misdemeanor, for people who clearly knew they were breaking the law, so that’s the challenge, so “should have known, must have known, had to know” does not get you there. You must prove … they knew they were engaged in something that was unlawful.”

    In other words, ignorance of the law is an excuse. Not for speeding. But for handling top secret material.

    Bob,

    Comey is absolutely hallucinogenic on intent. I’m no lawyer, yet I don’t think there is a reasonable person in the country that doesn’t think she knew what she was doing and intended to do it.

    Comey is full of it.

    Regards,

    Jim

    A little later Mr. Farentholt brought up the speeding analogy to ask if ignorance of the law is an excuse. (i.e. If I thought the speeding limit was higher than it was, can I use that a defense?)  Comey reiterated that unlike petty crimes, this kind of crime does in fact require knowledge of the action’s wrongness, although not necessarily knowledge of the specific statute.

    • #43
  14. Bob W Member
    Bob W
    @WBob

    Which raises the question, if the govt could prove all the other elements of insider trading, except the defendant said he didn’t know it was illegal, tough luck for the prosecutor?

    • #44
  15. James Gawron Inactive
    James Gawron
    @JamesGawron

    Bob W:Which raises the question, if the govt could prove all the other elements of insider trading, except the defendant said he didn’t know it was illegal, tough luck for the prosecutor?

    Bob,

    I always thought that proof was “beyond a reasonable doubt”. Can you seriously tell me you can reasonably doubt that Hillary knew exactly what she was doing all the way from setting up the server through obstructing justice by lying and destroying evidence?

    Regards,

    Jim

    • #45
  16. Lily Bart Inactive
    Lily Bart
    @LilyBart

    We are moving toward electing a president who is literally Above The Law.    I’ve heard that when a country starts to fall about, it goes fast, but, wow!

    • #46
  17. Brian Watt Inactive
    Brian Watt
    @BrianWatt

    Chaffetz is making Comey look like an incompetent buffoon. Very entertaining.

    • #47
  18. Bob W Member
    Bob W
    @WBob

    James Gawron:

    Bob W:Which raises the question, if the govt could prove all the other elements of insider trading, except the defendant said he didn’t know it was illegal, tough luck for the prosecutor?

    Bob,

    I always thought that proof was “beyond a reasonable doubt”. Can you seriously tell me you can reasonably doubt that Hillary knew exactly what she was doing all the way from setting up the server through obstructing justice by lying and destroying evidence?

    Regards,

    Jim

    There’s no doubt about that. I was just surprised  at Comey’s assertion that ignorance of the law is an excuse.  That seems to go against basic law school 101.  Or, maybe he was saying that she didn’t  know the emails were classified. He seemed to be saying that later in  the hearing when he said the “(c)” marking on the emails may have been something she wouldn’t have understood.

    • #48
  19. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    Bob W: There’s no doubt about that. I was just surprised at Comey’s assertion that ignorance of the law is an excuse. That seems to go against basic law school 101. Or, maybe he was saying that she didn’t know the emails were classified. He seemed to be saying that later in the hearing when he said the “(c)” marking on the emails may have been something she wouldn’t have understood.

    It seems that more questions are being raised (at least for us on the sidelines) than are being answered. No surprise, I suppose.

    • #49
  20. James Gawron Inactive
    James Gawron
    @JamesGawron

    Bob W: He seemed to be saying that later in the hearing when he said the “(c)” marking on the emails may have been something she wouldn’t have understood.

    Bob,

    So Comey then asks us to believe beyond a reasonable doubt that Hillary Clinton, Yale Law School Graduate & Former U.S. Senator, couldn’t have identified a classified email, even after extensive training and specific legal warnings in writing.

    I think beyond a reasonable doubt, Comey is full of it.

    Regards,

    Jim

    • #50
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