Comey ill-served the public interest
Comey ill-served the public interest. FBI yearlong investigation of Hillary Clinton’s use of a personal email system during her tenure as secretary of state. Evidence indicated that Clinton and her closest colleagues, according to Comey, “were extremely careless in their handling of very sensitive, highly classified information.” Yet, he concluded, “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.”
It may be correct that, taking into account all factors, a reasonable prosecutor could have concluded that criminal charges should not be brought against Clinton. But, contrary to Comey’s assurances, the FBI’s findings also provide grounds for a reasonable prosecutor, all things considered, to bring charges. By mischaracterizing the law in what is, in his words, “a case of intense public interest,” Comey ill-served the public interest.
The crux of the matter, Comey argued, was that the FBI had not identified in Clinton’s case, as it had in others the government had prosecuted dealing with the mishandling of classified information, “clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice.”
But could no reasonable prosecutor have determined that Clinton’s mishandling of classified information was intentional? Must the mishandling of classified information be intentional to be prosecutable?
Several prominent former prosecutors have weighed in to provide what Comey denied existed: a plausible alternative interpretation of his findings and of the law that would justify a reasonable prosecutor recommending that Attorney General Loretta Lynch indict Hillary Clinton.
In a House hearing on July 7, Rep. Trey Gowdy, himself a former federal prosecutor, elicited from Comey the admission that Clinton made several false public statements: that she had never sent nor received classified information over her private email; that none of the emails she sent or received contained anything marked classified; that she used just one device for emailing; that her lawyers read all emails that went through her private server and were overly inclusive in determining which were work-related; and that she returned all work-related emails to the State Department.
That’s a lot of false public statements. All are self-serving.
Prosecutors use false exculpatory statements as evidence of intent and consciousness of guilt. Combined with her explicit rejection of a government email address, a failure to turn over her emails until, two years out of office, she was compelled by Congress to do so, and the State Department’s finding that it “did not—and would not—approve her exclusive reliance on a personal email account to conduct Department business” because of official restrictions and “security risks,” a reasonable prosecutor, Gowdy maintained, could have found substantial evidence of intent.
But absent a showing of intent, a reasonable prosecutor still would have a respectable case against Clinton, because under the relevant law, intent is not a necessary element of criminal mishandling of classified information. So therefore proving that Comey ill-served the public interest.