DANIEL VAUGHAN: The time justice wasn’t blind

June 15, 2018

“But my emails,” Hillary Clinton mockingly said about James Comey’s choice to use a private email account for official government business as FBI director — a revelation that came from the thorough FBI Office of Inspector General (IG) report released on Thursday.

Clinton’s “emails” response is meant to undergird her claim that she was unfairly targeted in a “meaningless” FBI investigation during the 2016 election. But the IG report paints a vastly different picture, one where not only was Clinton not unfairly targeted, but she received special treatment from the FBI and DOJ.

Were her name Hillary Smith instead of Hillary Clinton, she’d have faced a far bleaker situation.

Before jumping into the report, I want to emphasize that I’m focusing on a narrow question within the record: whether or not Hilary Clinton violated criminal statutes.

The overall report is 568 pages long and covers many subjects. The place in the report where the debate is most active on Clinton’s guilt is ironically in sections dealing with James Comey’s infamous declination speech.

Comey’s first draft read far differently than his final speech, as the report states on page 187:

There is evidence to support a conclusion that Secretary Clinton, and others, used the private email server in a manner that was grossly negligent with respect to the handling of classified information…

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 such an email conversation. 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.

A few things stand out here with regard to the language used. First, gross negligence in the care of classified records is a specific, prosecutable legal charge that comes with strict penalties.

There are many federal crimes which depend on gross negligence as a critical element.

Second, the law Comey referred to in regard to Clinton is 18 USC 1924, which makes it an offense intentionally mishandle classified intelligence. The report lays out that the FBI believed there was substantial evidence Clinton was guilty of gross negligence, and that there was enough evidence to go after her on a misdemeanor charge of violating 18 USC 1924.

In internal discussions, E.W. Priestap, Assistant Director of Counterintelligence in the FBI, went even further in his talks surrounding Clinton and Comey’s role in the declination speech on page 190 of the report:

I believe it’s equally important for the Director to more fully explain why the FBI can, in good faith, recommend to DOJ that they not charge someone who has committed a crime (as defined by the letter of the law). It’s important the Director explain our recommendation from the FBI perspective and not from the DOJ/prosecutorial perspective. The FBI is recommending that charges not be brought in this instance, not only because “no reasonable prosecutor would bring such a case,” but because the FBI believes it’s the right thing to do…

Notice what he’s saying: Clinton committed a crime as defined by federal statute. And the point of Comey’s statement is to explain why they had no intention of recommending prosecution.

Where this gets even more bewildering is that multiple witnesses — and Comey himself — have stated numerous times that even though they were letting Clinton off the hook, they didn’t want anyone in the FBI or any other government officials to do what Clinton did.

In fact, they wanted those employees to know they risked prosecution if they acted like Clinton, as the Executive Summary on page v states:

Other witnesses told the OIG that Comey included this criticism to avoid creating the appearance that the FBI was “letting [Clinton] off the hook,” as well as to “messag[e]” the decision to the FBI workforce to emphasize that employees would be disciplined for similar conduct and to distinguish the Clinton investigation from the cases of other public figures who had been prosecuted for mishandling violations.

In other words, Comey’s defense was that though “no reasonable prosecutor” would ever bring such a case against Clinton, that same prosecutor would target anyone else.

All of this brings me back to square one: the left believes that the FBI and media mistreated Clinton. That’s a flatly untrue notion purely on legal grounds.

Comey and his subordinates made it abundantly clear they believed there was substantial evidence to convict Clinton of violating a variety of statutes and that she was criminally grossly negligent with classified information.

Their decision to avoid prosecution was based on the notion that intent was required, and no prosecutor would ever make a unique case out of gross negligence. But U.S. attorneys make these arguments all the time.

Combine that with Peter Strzok’s assertion as noted on page 190 that, “we know foreign actors obtained access to some of her emails (including at least one Secret one),” and you get the reason the FBI investigation existed: Clinton’s gross negligence with diplomatic secrets, all to avoid transparency rules, gave foreign spies easy access to classified information.

As chapter six of the report lays out, once the FBI didn’t think they could establish clear criminal intent, they moved on to protect the FBI. They found what Clinton did was “appalling,” as they say on page 166, but didn’t want to attempt prosecution of gross negligence — even though James Comey threatened everyone else in the federal government with precisely that.

Clinton received a lot of things in the 2016 election — but unfair treatment from the press and FBI for her “extreme carelessness” with classified information wasn’t one of them. Keep in mind: if you did what she did, you’d be facing legal jeopardy.

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Daniel Vaughan

Daniel Vaughan is a columnist for the Conservative Institute and lawyer in Nashville, Tennessee. He has degrees from Middle Tennessee State University and Regent University School of Law. His work can be found on the Conservative Institute's website, or you can receive his columns and free weekly newsletter at The Beltway Outsiders. Connect with him on Twitter at @dvaughanCI.