Comey speaks: Hillary skates! [further updated]

FBI director James Comey just addressed the nation for 15 minutes, announcing the conclusions of the Bureau’s investigation of Hillary Clinton’s private email server.  Despite lots of critical references to her practices, the FBI is not recommending prosecution by the Justice Department.

It’s all over but the shouting.

Further thoughts:

Comey emphasized the lack of intent in his decision not to recommend prosecution.  But this ignores the actual language of the law regarding gross negligence.  Andrew F. Emerson explained on these pages:

The four most applicable Espionage Act statutes to Clinton’s post resignation detention of government records are 18 U.S.C. §§ 793, 798, 1924, and  2071. These statutes frequently define the mens rea requirement in terms of willfully, intentionally, and knowingly. A comprehensive analysis of all elements of these statues would require a multipage brief. It is critical to note that these various mens rea do not include proving intent to injure the United States. Nevertheless, mens rea requirements are slippery to define. In essence, the term “willfully” can best be defined as an intentional act with knowledge that it violates the law. “Specific intent”, applicable to some of the foregoing statutes, is defined as intending to commit a particular act with knowledge of a consequence to follow or intending a consequence. “Knowingly” refers generally to being aware that the conduct is of such nature as is prohibited by law, or in other contexts, that certain prohibited consequences will be the natural consequence of the action. Section 793(f) even lowers the requisite mens rea to gross negligence, generally defined as a very great negligence, or the absence of slight diligence, or the want of even scant care. It amounts to indifference so far as other persons are concerned.  [emphasis added]

Paul Mirengoff of Powerline comments:

When it came time to meld these two strands and present his decision whether to prosecute, Comey made no reference to the legal standard he had articulated a few minutes earlier. Instead, he pulled a switcheroo, formulating a new legal standard based on the elements he says have been present in past cases where prosecutions have been brought for the mishandling of secret/classified information.

I don’t know whether Comey is correct about past prosecutions. For example, did David Petraeus’ case meet the criteria Comey articulated this morning. Maybe, since he intended that his mistress see the information he showed her. But more than Comey’s say-so should be required before we buy his assertions regarding past practice. [Note: I have modified this paragraph slightly since first posting it]

In any event, Comey simply ignored the statutory standard he laid out. A first year associate at a law firm wouldn’t dare present an analysis like this.

My friend Monica Showalter isn't surprised.  She writes:

In retrospect, maybe Comey's latest act on Hillary Clinton's egregious lawbreaking shouldn't come as a surprise. Turns out Comey was chief of the FBI when it let Lois Lerner skate too. I wrote this editorial here two years ago[.]

Further thoughts, now that I have the official transcript.  Comey states:

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.

As pointed out above and by many commentators, “intent” is not required for the gross negligence.  And by using the words “extremely careless,” he virtually defined gross negligence as would be contained in jury instructions.

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.

This is shocking!  Comey’s job is not to decide what a reasonable prosecutor would do.  That is the prosecutor’s job.  He is openly providing protective cover for Loretta Lynch, sparing her from the backlash that would come her way if the FBI recommended prosecution and he demurred.

The outrage mounts.

FBI director James Comey just addressed the nation for 15 minutes, announcing the conclusions of the Bureau’s investigation of Hillary Clinton’s private email server.  Despite lots of critical references to her practices, the FBI is not recommending prosecution by the Justice Department.

It’s all over but the shouting.

Further thoughts:

Comey emphasized the lack of intent in his decision not to recommend prosecution.  But this ignores the actual language of the law regarding gross negligence.  Andrew F. Emerson explained on these pages:

The four most applicable Espionage Act statutes to Clinton’s post resignation detention of government records are 18 U.S.C. §§ 793, 798, 1924, and  2071. These statutes frequently define the mens rea requirement in terms of willfully, intentionally, and knowingly. A comprehensive analysis of all elements of these statues would require a multipage brief. It is critical to note that these various mens rea do not include proving intent to injure the United States. Nevertheless, mens rea requirements are slippery to define. In essence, the term “willfully” can best be defined as an intentional act with knowledge that it violates the law. “Specific intent”, applicable to some of the foregoing statutes, is defined as intending to commit a particular act with knowledge of a consequence to follow or intending a consequence. “Knowingly” refers generally to being aware that the conduct is of such nature as is prohibited by law, or in other contexts, that certain prohibited consequences will be the natural consequence of the action. Section 793(f) even lowers the requisite mens rea to gross negligence, generally defined as a very great negligence, or the absence of slight diligence, or the want of even scant care. It amounts to indifference so far as other persons are concerned.  [emphasis added]

Paul Mirengoff of Powerline comments:

When it came time to meld these two strands and present his decision whether to prosecute, Comey made no reference to the legal standard he had articulated a few minutes earlier. Instead, he pulled a switcheroo, formulating a new legal standard based on the elements he says have been present in past cases where prosecutions have been brought for the mishandling of secret/classified information.

I don’t know whether Comey is correct about past prosecutions. For example, did David Petraeus’ case meet the criteria Comey articulated this morning. Maybe, since he intended that his mistress see the information he showed her. But more than Comey’s say-so should be required before we buy his assertions regarding past practice. [Note: I have modified this paragraph slightly since first posting it]

In any event, Comey simply ignored the statutory standard he laid out. A first year associate at a law firm wouldn’t dare present an analysis like this.

My friend Monica Showalter isn't surprised.  She writes:

In retrospect, maybe Comey's latest act on Hillary Clinton's egregious lawbreaking shouldn't come as a surprise. Turns out Comey was chief of the FBI when it let Lois Lerner skate too. I wrote this editorial here two years ago[.]

Further thoughts, now that I have the official transcript.  Comey states:

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.

As pointed out above and by many commentators, “intent” is not required for the gross negligence.  And by using the words “extremely careless,” he virtually defined gross negligence as would be contained in jury instructions.

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.

This is shocking!  Comey’s job is not to decide what a reasonable prosecutor would do.  That is the prosecutor’s job.  He is openly providing protective cover for Loretta Lynch, sparing her from the backlash that would come her way if the FBI recommended prosecution and he demurred.

The outrage mounts.