No Reasonable Prosecutor

One of the strangest days in American politics ended with this:

Republican Donald Trump is accusing Hillary Clinton of bribing Attorney General Loretta Lynch following a report that said Clinton would consider keeping Lynch if she’s elected president.

“It’s a bribe!” Trump declared at a rally in Raleigh, North Carolina, Tuesday, hours after the FBI said it wouldn’t recommend charges against Clinton over her use of a private email server while she was secretary of state.

Trump was referring to a story in The New York Times that quoted “Democrats close to” Clinton saying she may decide to rehire Lynch.

Trump says Lynch may have believed that, if she let Clinton off the hook, she’d have four more years on the job.

“It’s a disgrace,” said Trump. “It’s a disgrace!”

Okay, it wasn’t really a bribe – no money changed hands – but there was an agreement of sorts – “Let me off the hook and you can keep your job.” Of course there’s no proof of this, but it seems obvious to Donald Trump. There’s no other possible explanation, except Attorney General Loretta Lynch wasn’t the one who just let Hillary Clinton off the hook:

FBI Director James B. Comey said Tuesday that his agency will not recommend criminal charges against Hillary Clinton for her use of a private email server as secretary of state but called Clinton and her staff “extremely careless” in handling classified material.

The announcement was stunning both for the level of detail Comey provided about an investigation that he ultimately believes should conclude without charges, and for the fact that the FBI director publicized his guidance before federal prosecutors had reached a final determination.

As he was about to proclaim that the presumptive Democratic presidential nominee should not be charged, Comey said officials at the Justice Department “do not know what I am about to say.” But he said he felt the American people deserved to know the details of an investigation that had dogged her campaign.

“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,” Comey said. He said that while the ultimate decision would be left up to Justice Department prosecutors, the FBI was expressing its view “that no charges are appropriate in this case.”

Attorney General Loretta Lynch was blindsided here. Comey didn’t give her a heads-up. That’s not a nice thing to do to your boss, but these are strange times. On the other hand, Comey wasn’t exactly nice to Hillary Clinton either:

The decision effectively means that Clinton will not have to fear criminal liability as her campaign moves forward, though Comey leveled sharp criticism at her past email practices and called into question many of her defenses.

The FBI director said those who acted as Clinton and her staffers did were “often subject to security or administrative sanctions,” though in comparing her case with similar investigations in the past, the bureau did not find any of the aggravating factors that typically lead to criminal charges.

“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,” he said, speaking at FBI headquarters.

That’s a slam, but maybe it wasn’t:

Comey also broadly criticized the handling of classified information on unclassified email systems at the State Department, saying investigators found evidence that the “security culture” there was “generally lacking in the kind of care for classified information” displayed at other government agencies.

State Department spokesman John Kirby said, “We don’t share that assessment.” But he added that the department is “always looking for ways to improve.”

So, it may be that Hillary was doing what everyone always does at State, which isn’t an excuse, but explains a lot, and that would do:

Hillary for America campaign spokesman Brian Fallon said in a statement: “We are pleased that the career officials handling this case have determined that no further action by the Department is appropriate. As the Secretary has long said, it was a mistake to use her personal email and she would not do it again. We are glad that this matter is now resolved.”

That remains to be seen, but there will be no indictment, and Comey explained why in his statement:

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. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past.

In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: 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. We do not see those things here.

The law was clear. Without 1) clearly intentional and willful mishandling of classified information, or 2) vast quantities of materials exposed in such a way as to support an inference of intentional misconduct, or 3) vast quantities of materials exposed in such a way as to support an inference of intentional misconduct, or 4) indications of disloyalty to the United States, or 5) efforts to obstruct justice, no reasonable prosecutor would bring charges. What would be the point? The FBI had none of that. Comey seemed disgusted by what Hillary had done, but, in the law, disgust doesn’t really matter. The statutes matter.

Greg Sargent, however, reviews what does seem a bit disgusting:

1) Of the emails Clinton turned over to the State department, “110 e-mails in 52 e-mail chains have been determined” to “contain classified information at the time they were sent or received,” and eight of these “contained information that was Top Secret at the time they were sent.”

2) Clinton and her colleagues at the State Department were “extremely careless in their handling of very sensitive, highly classified information.” Seven of the email chains were classified as highly sensitive, and they “should have known that an unclassified system was no place” for them.

3) While only a “very small number” of the emails that contained classified info bore “markings indicating the presence of classified information,” nonetheless, “participants who know or should know that the subject matter is classified are still obligated to protect it.”

Yet Comey declared that he would not be recommending that the Department of Justice bring criminal charges.

What? Sargent looked into that:

According to experts I spoke with today, the crux of the decision appears to turn on the question of whether there is evidence that the conduct outlined above rises to the level of “mishandling classified information either intentionally or in a grossly negligent way.” That’s the phrase Comey used to describe what constitutes a felony violation of relevant statute.

The most obvious of Comey’s conclusions was that there was no evidence of intent to mishandle the information. But how is it possible that Comey determined that the above conduct also does not constitute “gross negligence,” even if it was not intentional?

Elizabeth Goitein, the co-director of the Brennan Center’s Liberty and National Security Project, makes a key distinction, noting that investigators likely concluded that there was not sufficient evidence to get a conviction for gross negligence, aside from whatever they personally believed as to whether any such gross negligence did occur.

“Comey didn’t think the evidence would support a criminal prosecution,” Goitein tells me. “That’s what prosecutors base their decisions on – what the evidence shows, not what they personally think happened.”

This might explain why Comey carefully claimed in his statement that there is “evidence of potential violations of the statutes,” while also claiming that in spite of this, “no reasonable prosecutor” would bring this case.

And there’s this:

Comey also took care to note in his statement that unlike in Clinton’s case, previous cases prosecuted involved either intentional mishandling of classified info; levels of disclosure that allowed for an inference of willful mishandling; signs of disloyalty to the U.S.; or some combination of those.

“Hillary Clinton was never likely to be indicted, because no one has ever been prosecuted before in a situation similar to hers,” Matthew Miller, a former spokesman for the Justice Department, tells me. “There’s never been a case where someone has been prosecuted where either gross negligence or willful intent weren’t completely obvious.”

And that implies the curious case of former General David Petraeus and Donald Trump’s immediate tweet – “The system is rigged. General Petraeus got in trouble for far less. Very, very unfair! As usual, bad judgment!”

Sargent:

But as Michelle Lee has explained, Clinton’s case really is not like that of Petraeus. As part of his plea agreement, Petraeus admitted to mishandling information that he had known was highly classified, that he lied to the FBI during its investigation, and admitted to doing that, too. Petraeus acknowledged that these things were “knowing and deliberate.”

Meanwhile, as Josh Gerstein recently detailed for Politico, a number of other previous prosecutions in cases like these really did contain some of elements that Comey today said are not present in the case of Clinton.

Steven Aftergood, an expert on government secrecy, tells me that the question of whether a “threshold for culpable negligence” has been cleared is “a judgment that is made in part by prosecutors based on previous cases.”

In short, nothing seemed out of line here, and Ian Millhiser at ThinkProgress adds this:

It’s an announcement that will surprise no one who is familiar with the underlying law and ordinary Justice Department practices in a case such as this one.

Nevertheless, in part because calls for a Clinton indictment were amplified by Republicans at the highest levels, and in part because of what Josh Marshall described as the media-industrial complex’s quest for “wingnut page views,” the idea that Clinton may face criminal charges has lingered for months. Here’s what you need to know about why such charges were never a realistic possibility.

Clinton, like her two most recent predecessors Colin Powell and Condoleezza Rice, maintained at least two email accounts: one specifically set up to receive classified information and the other for other communications. Clinton’s non-classified email was hosted on a private server (as opposed to Powell’s non-classified email address, which was an AOL account), while the classified email could only be accessed if Clinton complied with a byzantine array of security rules.

Millhiser is pointing to a general culture of frustration, and more:

Setting aside the bare language of the law, there’s also a very important practical reason why officials in Clinton’s position are not typically indicted. The security applied to classified email systems is simply absurd. For this reason, a former CIA general counsel told the Washington Post’s David Ignatius, “‘it’s common’ that people end up using unclassified systems to transmit classified information.” “‘It’s inevitable, because the classified systems are often cumbersome and lots of people have access to the classified e-mails or cables.’ People who need quick guidance about a sensitive matter often pick up the phone or send a message on an open system. They shouldn’t, but they do.”

Indicting Clinton would require the Justice Department to apply a legal standard that would endanger countless officials throughout the government, and that would make it impossible for many government offices to function effectively.

Comey, then, may also have been being practical about this stuff, but either way, Josh Marshall saw the inevitable:

What is most notable about this news from a political and news perspective is that this outcome was entirely predictable, indeed almost inevitable, based on the facts that were publicly known about the case.

Let me say that again. There was always the chance that there were dramatically different or new facts the FBI had that had never been made public or intimated in any way. Possible but extremely unlikely. Given what we knew, criminal charges weren’t even in the realm of reasonable consideration. You could find this out with just a little bit of reporting, speaking to former federal prosecutors, legal experts, really anyone knowledgeable about the relevant law and past practice.

To use just one oft-cited example: what happened here was not remotely comparable to what got David Petraeus charged with a crime under any theory of either case. Complete nonsense.

Marshall notes that you could also find people who would say that it’s possible there could be charges against Clinton or people working for her, but that had nothing to do with the facts and the law:

There are certainly many Republicans who knew this all along but whipped the story up for political benefit. That’s politics. They’ll now keep the drum banging about a cover up or a compromised investigation. Again, that’s politics. But tens of millions of ordinary Republican voters were actually convinced not only that Clinton should be charged with something (that is a subjective judgment) but that it was likely or even certain to happen. You can say just the same for hundreds of thousands or millions of Sanders dead-enders who’ve been having yahoos writing in certain publications that will remain unmentioned that Clinton was absolutely, totally, no-question-about-it about to be indicted at any moment.

Of course, this has also been a source of middling or intense anxiety for many Hillary supporters – the wildcard of a catastrophic political bombshell upending campaign work, hopes and so much more. I cannot count the number of fair weather or diehard Clinton supporters who asked me over the last year, “How can you be so certain there aren’t going to be charges?” or “What do you know that everyone else doesn’t?” Again, I only knew what was clear if you talked to people with relevant knowledge – as opposed to TV pundits or reporters who need both dazzling headlines and the need for faux balance.

All this now creates profound questions, which are basically ridiculous questions. How could this have happened? How could she not have been charged?

Comey disappointed them all, but he had to:

There are some people – including a DOJ spokesman under Holder – criticizing Comey for holding this press conference at all. But I don’t think I agree with that. Something that has caused such public clamor and controversy was worth addressing publicly and in some detail. As for Comey calling Clinton and her associates “extremely careless,” I think that’s justified. The nonsense about this being an epic crime has mainly overwhelmed the simple facts of what happened, which show Clinton in a very poor light. Not a disqualifying light, but just really bad judgment on a few fronts.

All this said, this was 99.9% predictable and 100% obvious. It’s a mammoth press failure that for various reasons this reality was concealed from the public.

Comey fixed that, and Kevin Drum adds this:

Even conservatives expected this and have been preparing the ground all weekend to insist that the whole thing was rigged and Hillary really is guilty regardless of what the FBI says. Good luck with that, folks.

Bottom line: Hillary Clinton screwed up. She’s admitted this repeatedly. Other investigators have come to the same conclusion. If you want to criticize her for this, that’s fine. She deserves it. But there was no criminal intent and essentially no chance that a jury would have convicted her. We’ve known this for months now. Now we know it officially.

Can we let this go now? The Washington Post’s Chris Cillizza thinks not:

While Comey exonerated Clinton, legally speaking, he provided huge amounts of fodder that could badly hamstring her in the court of public opinion. …

It’s hard to read Comey’s statement as anything other than a wholesale rebuke of the story Clinton and her campaign team has been telling ever since the existence of her private email server came to light in spring 2015. She did send and receive classified emails. The setup did leave her – and the classified information on the server – subject to a possible foreign hack. She and her team did delete emails as personal that contained professional information.

Those are facts, facts delivered by the Justice Department of a Democratic administration. And those facts run absolutely counter to the narrative put forth by the Clinton operation: that this whole thing was a Republican witch-hunt pushed by a bored and adversarial media.

That’s the real damage here:

Clinton did avoid indictment, a ruling that would have effectively ended her campaign or left it so badly weakened that there would have been a major move within Democratic circles to replace her as the nominee.

That said, campaigns aren’t governed by the ultimate legality of what Clinton did or didn’t do. So, while dodging an indictment is a good thing – she isn’t under criminal investigation and remains a candidate – it’s a far different thing from being cleared (or even close to it) in the court of public opinion.

For a candidate already badly struggling on questions of whether she is honest and trustworthy enough to hold the office to which she aspires, Comey’s comments are devastating. Watching them, I could close my eyes and imagine them spliced into a bevy of 30-second ads – all of which end with the FBI director rebuking Clinton as “extremely careless.”

The best thing Clinton may have going for her at this point is that Republicans are two weeks away from formally picking Donald Trump as their party’s presidential nominee. Trump has shown a unique ability to hog the national spotlight and make comments that make people wonder whether he is fit to be president.

That he did, in another tweet – “FBI director said Crooked Hillary compromised our national security. No charges. Wow!”

Cillizza:

“Wow!” is not exactly the most presidential of responses.

Still, all things considered, this is a very bad day for the Clinton campaign. It’s not the worst outcome (indictment), but it badly disrupts her attempts to move beyond the email server story as she seeks to unite the party in advance of the Democratic convention later this month. And it suggests the email issue will haunt her all the way through Election Day…

Of course it will, but Dana Milbank has a story to tell:

Jim Comey knows how to spin a yarn.

Nine years ago, I sat in a Senate hearing room and watched Comey, the former No. 2 official in George W. Bush’s Justice Department, tell a tale worthy of Tom Clancy about how White House counsel Alberto Gonzales and Chief of Staff Andy Card staged a late-night ambush of Attorney General John Ashcroft, who lay in intensive care at George Washington Hospital.

Tipped off that the White House officials were trying to get Ashcroft to sign off on an eavesdropping plan that Comey had ruled legally indefensible, Comey raced to the hospital with his security detail, lights flashing, then ran to Ashcroft’s bedside.

“The door opened and in walked Mr. Gonzales, carrying an envelope, and Mr. Card,” Comey told the spellbound senators. They were prepared to manipulate the incapacitated attorney general into signing off on the eavesdropping.

But Ashcroft “lifted his head off the pillow and in very strong terms expressed his view of the matter” – that Comey was right, he testified. “And as he lay back down, he said, ‘But that doesn’t matter, because I’m not the attorney general. There is the attorney general.’ And he pointed to me.” Gonzales and Card walked away without acknowledging Comey.

The episode elevated Comey to legal hero, a picture of rectitude who followed the rule of law above party politics and personal risk. The performance likely won him the job as FBI director in the Obama administration, even though he was a top Republican appointee.

On Tuesday morning, Comey performed a sequel, summoning the press to FBI headquarters and delivering his long-awaited decision on Hillary Clinton’s emails. It was nearly as gripping as his tale of hospital-bed contretemps. Six-foot-eight-inches tall and in a no-nonsense business suit with blue shirt and yellow tie, he began promptly at 11:01 a.m., then delivered, over the next 13 minutes, a powerful rebuke of Clinton’s conduct…

And then he said there would be no charges filed:

Much will, and has, been said about what my colleague Chris Cillizza described as Comey’s “devastating” description of Clinton’s antics. Conversely, many were saying before Comey even announced his decision that the investigation was rigged to exonerate Clinton.

But the bottom line is that a man whose reputation for integrity is as unimpeachable as it gets here in the city of Satan has said unequivocally that Clinton shouldn’t be prosecuted. And she won’t be, given that Justice Department prosecutors have no reason to overrule the FBI.

Trump and the Republicans will have to deal with what really happened here:

Comey’s opposition to prosecution is what counts, not his words. He took pains to defend the FBI’s integrity, reporting on the “thousands of hours” and the technical sleuthing of the investigation. “Only facts matter,” he said, “and the FBI found them here in an entirely apolitical and professional way.”

No reasonable person can disagree with Jim Comey.

And Comey is, after all, one of them, even if a man of impeccable integrity, unlike their presumptive nominee this year. What does happen if you, without proof or the possibility of proof, accuse the sitting attorney general of accepting a bribe in a matter that now won’t even come before her? We’ll see what happens in Cleveland.

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About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
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4 Responses to No Reasonable Prosecutor

  1. A couple of thoughts about e-mails generally are in my today’s blog post, if you wish….

  2. Rick says:

    Damn, I’d really hoped that the eventual announcement of the findings of the FBI, more or less exonerating Hillary Clinton on her handling of her emails, would pretty much shut down the Republican noise machine. Silly me. But I soon realized before James Comey had finished his presentation that this beast of a story just grew more legs.

    First of all, as far as I can tell, even the legal part ain’t really over, at least not until Attorney General Loretta Lynch announces whether she will indeed follow the FBI’s recommendations, which there frankly seems to be plenty of incentive for her to not do, simply to demonstrate that there was no bribery involved or foolishness having to do with that meeting with Bill Clinton at the airport.

    And secondly, FBI Director Comey seemed to make sure he left enough hanging to keep this thing going for awhile. For one thing, the Republicans will certainly want to ask him questions about how he could have come to his obviously preposterous conclusions, given the case he laid out (and as I write this, it is now known he’ll be talking to the House Oversight Committee on Thursday)

    But also, while it may be understandable that he might call the press together to announce that he won’t be recommending any indictments, I’m not sure why he would find it necessary to throw into the mix his personal opinions, having nothing to do with the law — saying “there is evidence that they [Hillary and her staff] were extremely careless in their handling of very sensitive, highly classified information” (although, in fact, probably no more careless than Colin Powell and Condoleezza Rice were before her) — which seemed to serve no purpose other than to give the Trump campaign juicy soundbites for their attack ads.

    Why would he do that? Maybe because Comey, as a Bush Appointee, is a presumed Republican himself, and no friend of Hillary? Although maybe not. Who knows.

    In fact, did he even have to make his recommendations public at all? Maybe it might have been better if he hadn’t, except that I suspect that Lynch, even if she didn’t know ahead of time what he was going to say, may have suggested he do it, in hopes it might defuse some of the political chatter if it happened out in the open.

    Still, one thing I’ve not really been able to figure out is what led Hillary to handle her emails the way she did, and I think I may have figured that out by following Ian Millhiser’s link in his ThinkProgress piece, to Newsweek Kurt Eichenwald’s February 8th article, “The Shocking Truth: Colin Powell’s Emails Don’t Matter”, in which he points out that, for anyone to insure they never ever transmit or receive classified information by email, they’d have to walk around in a portable “Sensitive Compartmented Information Facility” …

    … or what is known in intelligence circles as a SCIF.

    Most senior officials who deal with classified information have a SCIF in their offices and their homes.These are not just extra offices with a special lock. Each SCIF is constructed following complex rules imposed by the intelligence and defense communities.

    Restrictions imposed on the builders are designed to ensure that no unauthorized personnel can get into the room, and the SCIF cannot be accessed by hacking or electronic eavesdropping. A group called the technical surveillance countermeasures team (TSCM) investigates the area or activity to check that all communications are protected from outside surveillance and cannot be intercepted.

    Most permanent SCIFs have physical and technical security, called TEMPEST. The facility is guarded and in operation 24 hours a day, seven days a week; any official on the SCIF staff must have the highest security clearance. There is supposed to be sufficient personnel continuously present to observe the primary, secondary and emergency exit doors of the SCIF. Each SCIF must apply fundamental red-black separation to prevent the inadvertent transmission of classified data over telephone lines, power lines or signal lines.

    Basically, it’s a room. Sometimes it’s a tent. But you can’t be sitting at your desk in your office and communicate sensitive information, and still make absolutely sure you keep it safe.

    And by the way, as you may have heard, much of what information is, at some point, made classified, isn’t secret, or at least shouldn’t be kept secret. Much of what eventually becomes “classified” is made so by the FOIA (Freedom of Information Act) staff, just acting in an abundance of caution in keeping some innocuous Associated Press article from being released to the public.

    People outraged by the (false) belief that [Secretaries of State Colin] Powell and [Condoleezza] Rice’s aides broke the law are creating a fantasy world where every official email, no matter its content, must go through a SCIF just in case the FOIA staff eventually determines, sometime in the future and applying different standards, that the information in the email should not be released to the public under a FOIA request out of classification concerns.

    Given the cumbersome procedures of using a SCIF, that would mean the secretary of state would have to spend a lot of time sitting inside a locked box and sending emails not yet designated as containing secret information, solely to avoid the partisan gnashing of teeth that could potentially occur if someday the FOIA staff were to retroactively decide they should not be released to the public out of classification concerns.

    And in Powell and Rice’s case, there’s also this:

    Plus, both Powell and Rice had the authority, granted by President George W. Bush through executive order, to classify and declassify any document created by the State Department. So if either of them had received an email from another agency containing information that had not gone through a SCIF, he or she could have independently declared that it did not need to be secret and sent it along to anyone they chose.

    In other words, had Obama only granted this same power to Hillary, she could have just unilaterally declassified all that stuff on the spot, and avoided all the partisan tooth-gnashing that’s been happening ever since.

    So, given how difficult it was to do the job without publicly disclosing that the AP had published a news article mentioning that we have a drone program, there seems to be good justification for doing what Powell, Rice and Clinton all did, and I’m not sure I wouldn’t have been tempted to do the same — and maybe even at the risk of voters taking umbrage at my doing it, and deciding then to elect Donald Trump president instead of me.

    Yikes! This is the world turned upside down!

    Rick

  3. Thanks. Nothing you said I didn’t know, at least generally. You just say it better than I. Life will go on, till the next outrage. The Republicans (my opinion) have created their own monster, and it will be interesting to see what transpires in the next few months.

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