The key sentence uttered by FBI Director James Comey today:
…although the Department of Justice makes final decisions on matters like this, we [the FBI] are expressing to [the Justice Department] our view that no charges are appropriate in this case.
That is the only sentence that will be repeated, ad-nauseum, for the rest of Clinton’s life. No charges recommended. As anyone with any sense of ethics and the rule of law in the intelligence community will tell you: it’s the wrong decision. Clinton should be prosecuted by the Justice Department. The evidence is there, it is strong, and this decision is foul with the stench of politics. All you need to prove the case is the FBI’s own words and evidence and you immediately see how she should be prosecuted. You don’t even need all the reports from the last year. All you need to prove this is James Comey’s own words.
What was the FBI investigating Clinton for and what were the specific statutes in play? Comey explains (emphasis mine):
The investigation began as a referral from the Intelligence Community Inspector General in connection with Secretary Clinton’s use of a personal e-mail server during her time as Secretary of State. The referral focused on whether classified information was transmitted on that personal system.
Our investigation looked at whether there is evidence classified information was improperly stored or transmitted on that personal system, in violation of a federal statute making it a felony to mishandle classified information either intentionally or in a grossly negligent way, or a second statute making it a misdemeanor to knowingly remove classified information from appropriate systems or storage facilities.
Consistent with our counterintelligence responsibilities, we have also investigated to determine whether there is evidence of computer intrusion in connection with the personal e-mail server by any foreign power, or other hostile actors.
Those are the parameters Comey said the FBI had while investigating Clinton. These are not random things the FBI was investigating. Specifically, the FBI was investigating Clinton as a suspect in violating Federal Law 18 USC § 1924. That statue makes it a crime to do what Comey lays out above. As long time observers have noted, the issue in this case was never focused on the “intentional” mishandling section of the statute. Gross negligence is the key. I’d agree with Comey there is little evidence of intentional mishandling, however, there is ample evidence of gross negligence. Intent is not a factor in gross negligence. With negligence, you can have the intent to not do something, but by gross negligence you’re still guilty of the same crime. Comey’s own speech says that Clinton checked off ALL the boxes for gross negligence in handling classified information.
For the non-lawyers out there, I’ll explain gross negligence. First a definition:
A person acts with ‘criminal negligence’ with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.
To apply that definition here you would ask the following questions:
- Did Clinton fail to perceive a substantial and unjustifiable risk in harboring her own private server? Those risks being keeping information over unsecured channels.
- Did Clinton’s failure to consider this risk help create the risks to the classified information?
- Was Clinton’s behavior a gross deviation from the standard of care a reasonable person (a person in Clinton’s shoes) would make? In other words: Would another Secretary of State treat information in the same manner as Clinton?
These are very rough paraphrases of the law in this case. Each of the words in that description have case law attached to them explaining various angles. I’m just trying to show what the FBI had to consider when investigating Clinton. When you read Comey’s statement, you’re struck by one thing: He lays out every single factor for gross negligence and how Clinton met those factors. It should be noted, Clinton only had to act with gross negligence in regard to once piece of classified information. We have far more than one piece of information in this case. We have many:
From the group of 30,000 e-mails returned to the State Department, 110 e-mails in 52 e-mail chains have been determined by the owning agency to contain classified information at the time they were sent or received. Eight of those chains contained information that was Top Secret at the time they were sent; 36 chains contained Secret information at the time; and eight contained Confidential information, which is the lowest level of classification. Separate from those, about 2,000 additional e-mails were “up-classified” to make them Confidential; the information in those had not been classified at the time the e-mails were sent.
Think of this paragraph as the broad overview of what Clinton did and the numbers behind them. Note: Clinton lied about each one of these points. She said there was no classified information, it was only personal emails. She said she never sent knowingly classified information. She said the classification system was confusing. She said many other things. Every single one of Clinton’s statements on the email scandal have been nuked by the FBI’s investigation. She lied in every statement. She understood classification, its importance, and failed to follow statutory or agency rules.
Next we move into the sections where Comey is going into the gross negligence standard. Comey never says gross negligence, but this is what he is describing in the statement (emphasis mine):
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.
For example, seven e-mail chains concern matters that were classified at the Top Secret/Special Access Program level when they were sent and received. These chains involved Secretary Clinton both sending e-mails about those matters and receiving e-mails from others about the same matters. There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation. In addition to this highly sensitive information, we also found information that was properly classified as Secret by the U.S. Intelligence Community at the time it was discussed on e-mail (that is, excluding the later “up-classified” e-mails).
None of these e-mails should have been on any kind of unclassified system, but their presence is especially concerning because all of these e-mails were housed on unclassified personal servers not even supported by full-time security staff, like those found at Departments and Agencies of the U.S. Government—or even with a commercial service like Gmail.
Separately, it is important to say something about the marking of classified information. Only a very small number of the e-mails containing classified information bore markings indicating the presence of classified information. But even if information is not marked “classified” in an e-mail, participants who know or should know that the subject matter is classified are still obligated to protect it.
While not the focus of our investigation, we also developed evidence that the security culture of the State Department in general, and with respect to use of unclassified e-mail systems in particular, was generally lacking in the kind of care for classified information found elsewhere in the government.
Comey says in his statement that there is evidence a reasonable person in Clinton’s position SHOULD HAVE KNOWN the unclassified system she had set up was no place to discuss HIGHLY SENSITIVE CLASSIFIED material. Remember the gross negligence standard I described above? The FBI is saying a grand jury could find beyond a reasonable doubt Clinton failed this standard. One factor met.
That isn’t the only standard met here: Comey also says that Clinton and her staff were EXTREMELY CARELESS in handling highly sensitive information. Comey’s wording here implicitly acknowledges a grand jury could decide Clinton’s carelessness in handling classified information was gross negligence. Two factors met.
After Comey notes that the FBI recommends no charges, he makes the following curious statement:
To be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences. To the contrary, those individuals are often subject to security or administrative sanctions. But that is not what we are deciding now.
In other words, if someone else engaged in this behavior below Clinton’s rank, the FBI would likely recommend prosecution. But the FBI is deciding not to do that in this case because… reasons? No actual reason is given. Just a vague sentence saying “no reasonable prosecutor” would bring this case, even though Comey straight up says in his statement multiple factors of gross negligence have been met.
For comparison: A US Navy sailor was prosecuted for taking pictures inside a classified engine room. One of the charges? Holding classified information on an unsecured device. Former General and CIA Director David Petraeus pled guilty to mishandling classified information on notepads. Hillary Clinton kept hundreds of highly classified documents illegally on her multiple servers and devices, lied about that to the media, and would have never admitted to any of this unless a Congressional Panel on Benghazi hadn’t uncovered the server. Comey calls her extremely careless. She gets nothing.
Ask any other intelligence officer what would happen to them if they were “extremely careless.” Their careers would be over. They’d get jail time. They would never be allowed to view classified information again.
Let’s repeat that for those who need help: Comey says a reasonable prosecutor would not bring a case before a grand jury when all the factors for gross negligence have been met. He’s encouraging the Department of Justice to use prosecutorial discretion and not prosecute even though the facts say gross negligence could be found by a grand jury. Comey then lies by saying no case exists showing prosecution in a case like this. Even though DOJ prosecutors have gone after far less and won. Somehow a server full of classified materials is less important than cell phone pictures and notepads.
How bad was Clinton’s extreme carelessness with American intelligence? She endangered American assets, interests, and gave hackers and easy way to get information. Top diplomatic communications are highly sought after in the intelligence community. 1 Everyone wants them. Clinton’s system was not secure and offered those secrets up easily. Indeed, in the espionage community, it’s assumed that Russia, China, and Iran ALL have Clinton’s emails. We know other countries, some even allies, tried hacking her. Some of those emails even contained highly sensitive material indicating what OUR operatives were doing overseas. The “Guccifer” hacker everyone talked about in regards to Clinton and DNC hacks is very likely to be a Russian covert operation. In other words: Clinton endangered US operatives and assets in the field.
The line keeps getting pandered that there is no “Direct Evidence” Clinton’s server was hacked. This is a smoke screen. Comey says the FBI knows the accounts Clinton communicated with were compromised. Comey also adds the following (emphasis mine):
But, given the nature of the system and of the actors potentially involved, we assess that we would be unlikely to see such direct evidence. We do assess that hostile actors gained access to the private commercial e-mail accounts of people with whom Secretary Clinton was in regular contact from her personal account. We also assess that Secretary Clinton’s use of a personal e-mail domain was both known by a large number of people and readily apparent. She also used her personal e-mail extensively while outside the United States, including sending and receiving work-related e-mails in the territory of sophisticated adversaries. Given that combination of factors, we assess it is possible that hostile actors gained access to Secretary Clinton’s personal e-mail account.
Comey is being kind. Foreign actors have Clinton’s email. The direct evidence line is a throw away. The IRS gets attacked by hackers 145 million times a year. There are two types firms in this world: those that have been hacked, and those that don’t know they’ve been hacked. Current Secretary of State John Kerry assumes people are reading his emails. Does anyone seriously think Clinton’s server was more secure than Silicon Valley, the IRS, or the United States government? Comey implies Clinton’s server security was weaker than GMAIL. The Associated Press interviewed NSA operatives who said that there is 100% chance the Russians had Clinton’s email. Clinton’s reassurance that she wasn’t hacked are about as reassuring as Edward Snowden claiming the Russians and Chinese don’t have access to all his hacked data (pro-tip: they do). She claims there’s no evidence her server was hacked, meanwhile, Wikileaks is busy publishing 1,258 emails from Clinton’s server regarding the Iraq War (one former NSA analyst has accused Wikileaks of becoming a front for Russian intelligence). The odds Clinton’s server were not hacked are so remote, it’s a naive fantasy if you believe otherwise. Or a political lie. Clinton’s server was less secure and was hacked by foreign operatives.
And why do all this? As her own emails attest: To avoid requests via the Freedom of Information Act (FOIA). She gave up American security to AVOID FOIA. How paranoid does a person have to be to put American security above her own right wing conspiracy neurosis? President Richard Nixon looks like sober thinking person in comparison Clinton’s paranoia.
We just witnessed a major investigation against an establishment candidate for President end. Where the sitting President, in the midst of the investigation, stepped into the investigation and said nothing was wrong with Clinton’s actions. We witnessed an investigation where Clinton let it leak that she “may” decide to keep Attorney General Loretta Lynch in her job should Clinton win. After that leak, Bill Clinton and Lynch had an “impromptu” meeting on the airpot tarmac and where “nothing happened.” After that meeting: The State Department decided it wanted a 27 month delay of the investigation; Clinton granted a voluntary interview with the FBI; and the FBI said announced today that even though all the evidence shows extreme carelessness on the part of Clinton, that anyone else would be prosecuted for, no charges were appropriate. All neatly wrapped up before the Democratic Convention. Now we can neatly sweep the story under the rug for the general election.
The appalling part of this is that WE ARE NOT SHOCKED. Not by any of these events. Not by the lack of charges. Not by the ignored mountain of evidence. Not the “happy” magical ending before the convention. Not by the FBI rewriting the law to let Clinton off. Not by anything. We expected all of this when the investigation was launched.
Justice and the rule of law died today. She was bound, gagged, and thrown over a bridge with concrete shoes in the name of political expediency. We walk past the dead body just like the pedestrians did in New York of Hugo Alfredo Tale-Yax. A man who saved a woman from a criminal, was stabbed, and then died in a pool of his own blood as people strolled past, taking pictures, looking at but never helping. Justice lies in the streets of America as our politicians urge us to ignore it. All this just one day after we celebrated our independence using the following words:
That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.
The Declaration of Independence, July 4, 1776