Early draft of Comey doc accused Clinton of 'gross negligence' in handling classified info
There has been a bombshell revelation in the documents supplied by the FBI to Congress that reference the decision of former director James Comey not to prosecute Hillary Clinton for mishandling classified information.
An earlier draft of Comey's statement, which purports to explain why he was not recommending Clinton be put on trial, accused her of "gross negligence" in handling classified info.
But the final draft substituted "gross negligence" for "extremely careless." Why the phrase was changed and who changed it are vital questions to determine if there was political interference in the decision not to prosecute Clinton.
The draft, written weeks before the announcement of no charges, was described by multiple sources who saw the document both before and after it was sent to the Senate Judiciary Committee this past weekend.
"There is evidence to support a conclusion that Secretary Clinton, and others, used the email server in a manner that was grossly negligent with respect to the handling of classified information," reads the statement, one of Comey's earliest drafts from May 2, 2016.
The sources who had seen the early draft, who spoke on condition of anonymity because they were not authorized to speak to the media, said the draft statement was subsequently changed in red-line edits on or around June 10 to conclude that the handling of 110 emails containing classified information that were transmitted by Clinton and her aides over her insecure personal email server was "extremely careless."
The documents turned over to Congress do not indicate who recommended the key wording changes, the sources said.
Many legal experts have explained that the statute requires "gross negligence" in handling classified info – a phrase that was removed in the final draft.
The documents may be silent about who might have influenced the change, but sources told The Hill that it was three high level FBI officials involved in the alteration.
Sources that spoke to The Hill claimed that at least three top FBI officials were involved in changing the language of Comey's statement, including Deputy Director Andrew McCabe, General Counsel James Baker, and chief of staff Jim Rybicki.
Those names should raise eyebrows. McCabe was the former acting director of the FBI after Comey's firing and his wife came under scrutiny for previously undisclosed ties to the Clintons.
Rybicki – as Senators Chuck Grassley, R-Iowa, and Lindsey Graham, R-S.C., called attention to in August – was one of the FBI officials interviewed by the Office of Special Counsel who suggested the investigators in charge of the Clinton case had predetermined what the outcome was going to be.
As for Baker, a confidant of James Comey, he is reportedly the subject of a Department of Justice criminal investigation for allegedly leaking classified national security information to the media.
In short, of the three top FBI officials that had a hand in watering down Comey's statement, one has Clinton ties, one suggested that the fix was in to let Hillary Clinton off the hook, and one is under investigation for criminally leaking information to the media to undermine the Trump administration.
When Comey went public with the final version of his statement, he blasted Hillary Clinton, building a strong case against her. Then, surprising everyone, he declared he would not recommend criminal charges be filed against her.
Comey would subsequently justify his decision by claiming that no "reasonable prosecutor" would bring a case against Clinton. As he told Congress in sworn testimony: "I know the Department of Justice, I know no reasonable prosecutor would bring this case. I know a lot of my former friends are out there saying they would. I wonder where they were in the last 40 years, because I'd like to see the cases they brought on gross negligence. Nobody would, nobody did."
McCabe's wife ran unsuccessfully for the Virginia state Senate while receiving more than $450,000 from a PAC controlled by Clinton crony and current Virginia governor Terry McAuliffe. McCabe failed to disclose this connection on his financial disclosure form.
Does this sound like political interference to you?
Comey has plausible (sort of) deniability because his point wasn't so much that Clinton negligently handled classified info; it's that no Justice Department prosecutor would follow through and prosecute a case like this.
Is that true?
Some legal scholars have argued Comey's analysis of the law was correct, citing a 1941 Supreme Court ruling saying the gross negligence statute was not constitutionally vague as long as prosecutors showed there was "intent or reason to believe that the information to be obtained is to be used to the injury of the United States."
But other scholars noted that prosecutions have been brought since the 1941 case in the military courts where intent wasn't required.
It's clear that Comey, at the urging of his advisers, placed his thumb on the scale to prevent any chance of a prosecution in the Clinton case. He can't claim he wasn't aware of what leaving out "gross negligence" would mean. In fact, he admitted as much in his congressional testimony.
Justice is supposed to be blind. The fact that Clinton was running for president should not have influenced Comey's decision. But it did. And whether it was politics or not, Comey must be held accountable for creating a separate legal standard for Hillary Clinton, who was not prosecuted for crimes that have sent others to jail.