James Comey’s press conference was highly irregular (to say the least). The FBI is almost never in a position to reveal the findings of an investigation, especially one that results in a recommendation not to prosecute. What Comey was saying, loud and clear, is that this was prosecutorial discretion.
No “Reasonable Prosecutor”
That appears to be the standard that Comey’s team applied to the decision to recommend not bringing charges against Hillary Clinton. Let’s be clear: That is not a legal standard. It is a rationale for prosecutorial discretion. Comey concluded that all previous cases for which charges have been filed involved one of the following:
1) “clearly intentional and willful mishandling of classified information”
2) “vast quantities of materials exposed in such a way as to support an inference of intentional misconduct”
3) “indications of disloyalty to the United States”
4) “efforts to obstruct justice”
Defendants who find themselves under investigation for mishandling classified information might be surprised to learn that the FBI and DOJ have these standards. They aren’t in the U.S. Code, or promulgated as a Federal Regulation. They aren’t even informal guidelines published on the DOJ website.
But, Comey is right. If the FBI is confident that Secretary Clinton did not obstruct justice when her lawyers deleted work-related emails that may have contained classified information, and if they are confident that the very fact that she set up and maintained an unauthorized server where she kept all of her work-related e-mails did not show “intentional and willful mishandling”, then she should not be prosecuted.
I’m not breathing a sigh of relief, but I think it means that Hillary Clinton has set aside my doubts about whether she should be the party’s nominee, and I’m enormously grateful to receive this news well before November.
Be Happy, But Don’t Celebrate
However, the bullet that was just dodged missed by a razor-thin margin. Just how thin? As Comey made clear in his press conference, “there is evidence of potential violations of the statutes regarding the handling of classified information”. Not only that, his press conference appears to have been designed to offer a point-by-point summary of facts that would appear to support a violation of either 18 U.S.C. Section 1924 or 18 U.S.C. Section 793(f). To summarize, element by element:
18 U.S.C. Section 1924
“possessed of documents or materials containing classified information”
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.
In other words, yes, Secretary Clinton had classified information on her private server that was classified at the time it was sent and received, including 8 e-mail chains that contained Top Secret classified information.
“knowingly removes such documents or materials”
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.
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None of these e-mails should have been on any kind of unclassified system…
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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.
“Knowingly” in criminal law means consciously or with knowledge or complete understanding of the facts or circumstances. From Comey’s statements, he makes clear that the subject matter of some emails, despite the existence of any markings, was such that any reasonable person in Secretary Clinton’s position would have known that it should never be placed on an unclassified system.
“with the intent to retain such documents or materials at an unauthorized location”
Secretary Clinton used several different servers and administrators of those servers during her four years at the State Department, and used numerous mobile devices to view and send e-mail on that personal domain. As new servers and equipment were employed, older servers were taken out of service, stored, and decommissioned in various ways.
Secretary Clinton established and maintained multiple unauthorized servers and mobile devices where she stored her emails. None of those devices or servers were authorized by the State Department. She clearly intended to store all of her work-related emails on these devices, and, as stated above, this included emails that any reasonable person in Secretary Clinton’s position would know to be classified.
18 U.S.C. Section 793
“Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense”
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.
By definition, Top Secret classified information relates to the national defense. From 18 CFR 3a.11(a)(1):
Top Secret. Top Secret refers to national security information or material which requires the highest degree of protection. The test for assigning Top Secret classification is whether its unauthorized disclosure could reasonably be expected to cause exceptionally grave damage to the national security. Examples of exceptionally grave damage include armed hostilities against the United States or its allies; disruption of foreign relations vitally affecting the national security; the compromise of vital national defense plans or complex cryptologic and communications intelligence systems; the revelation of sensitive intelligence operations; and the disclosure of scientific or technological developments vital to national security. This classification is to be used with the utmost restraint.
“through gross negligence permits the same to be removed from its proper place of custody”
[S]even 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 criminal law, gross negligence is the conscious or voluntary failure to exercise reasonable care. In other words, something beyond mere negligence, which is the failure to exercise reasonable care. From his statement, it’s unclear whether Comey believes that Hillary’s actions rose to the level of “gross negligence”. Typically, a prosecutor would piece together facts or statements that appeared to show the defendant acting recklessly, such as, for example, ignoring clear warnings from other State Department officials. She certainly received warnings about the server’s security, but perhaps she never received warnings about the possibility that she was mishandling classified information.
“or to be lost, stolen, abstracted, or destroyed”
It is also likely that there are other work-related e-mails that they did not produce to State and that we did not find elsewhere, and that are now gone because they deleted all e-mails they did not return to State, and the lawyers cleaned their devices in such a way as to preclude complete forensic recovery.
...
With respect to the thousands of e-mails we found that were not among those produced to State, agencies have concluded that three of those were classified at the time they were sent or received, one at the Secret level and two at the Confidential level.
Secretary Clinton’s lawyers, including Cheryl Mills, searched Hillary’s emails using a header and keyword search process that apparently missed quite a few work-related e-mails. The FBI found out that this was the case because other State Department employees had those emails in their own accounts, and the FBI could cross-reference them with the 30,000 that Secretary Clinton did turn over. Of those emails that were work-related, but not turned over to the State Department, three were classified at the time they were received or sent.
Since the FBI has at least three emails from those it recovered that were destroyed by Secretary Clinton’s lawyers, were her lawyers grossly negligent in their destruction of these records? Probably not, and she should be sure to write a very kind Christmas card to her lawyers.
I include the above statutory elements and Comey’s statements not to claim that he was wrong, but to show that this was, in fact, not a “nothingburger”. Hillary’s actions provide ample evidence of statutory violations, but, thankfully, not enough to warrant an indictment based on how the DOJ decided to prosecute past cases.
Her Case Is Different!
You will be hearing a lot about Bryan H. Nishimura. Why? Because he ended up on the wrong side of prosecutorial discretion in July 2015.
In 2007 and 2008, Naval Reservist Nishimura was deployed to Afghanistan as a regional engineer. During that period, Nishimura had access to classified briefings and digital records that could only be retained and viewed on authorized government computers. Nishimura describes himself as a “pack rat”. He frequently used a personal handheld device to store information that he obtained while he served in the Navy.
While serving in Afghanistan, Nishimura stored classified material on his personal, unauthorized device. He took the material off-base while he was actively serving in Afghanistan, and he also took the material home with him when his deployment ended. According to the U.S. Department of Justice:
Nishimura continued to maintain the information on unclassified systems in unauthorized locations, and copied the materials onto at least one additional unauthorized and unclassified system.
In non-prosecutor-ese, he kept the classified information on his hand-held device after his deployment and transferred that information to his home computer.
On July 24, 2015, Nishimura pled guilty to a Class A misdemeanor violation of 18 U.S.C. Section 1924 (Unauthorized Removal And Retention of Classified Documents and Material). The FBI did not conduct an extensive investigation lasting several years in order to charge Nishimura. The government was alerted to his violations when he approached Navy personnel in 2012 and admitted that he had inappropriately handled classified material. After making his initial admission to the Navy, he later admitted to subsequently destroying classified material that he was keeping at his home.
The FBI searched Nishimura’s home and found additional hard copies and digital copies of classified material. According to the DOJ, “The investigation did not reveal evidence that Nishimura intended to distribute classified information to unauthorized personnel.” He was simply storing classified material in an unauthorized location and on an unclassified system.
The Judge sentenced Nishimura to two years probation and ordered him to pay a $7,500 fine. He cannot hold a security clearance for the rest of his career.
Comey is absolutely right. There is a clear difference between Secretary Clinton’s situation and Nishimura’s. After Nishimura admitted to the Navy that he had inappropriately handled classified information, he tried to dispose of some of that material by throwing it in a nearby lake. Obviously, that’s a pretty big fucking deal to prosecutors. It shows what Comey describes as “clearly intentional and willful mishandling of classified information”.
Hillary Clinton never provided the DOJ with any evidence to support the conclusion that she acted willfully or intentionally. Of course, this also means that Hillary appears to have told the FBI the truth, rather than the misrepresentations she kept using for public consumption.
My Personal Takeaway
I have friends and relatives serving in the U.S. military. I’ve taught students who are serving their country in the U.S. intelligence services and at DOD. I am disgusted that the US AG just revealed that our Secretary of State “carelessly” handled classified information. However, as a Democrat interested in winning the presidency, I am immensely relieved that our nominee will not be under indictment.
However, I am done with the Clinton campaign. Hillary or her surrogates told lie after lie after lie about the e-mail investigation throughout the Democratic primary campaign. Sometimes, lies were told to correct a lie. I find it extremely distasteful that Hillary conducted her campaign while lying and avoiding the email issue. It leaves a very bitter taste in my mouth that will not be forgotten. Frankly, she should apologize for the lies, not just her poor judgment. It leaves her more vulnerable, but it would at least appear to recognize just how serious this issue is to many voters.
But, she is still the only acceptable choice. We must elect Hillary in November. And now I can stop harping on those damn emails.
