Comey Testifies

I watched with considerable interest James Comey’s appearance before the House Oversight and Government Reform Committee today. The reason, of course was his recent recommendation not to prosecute Hillary Clinton for: knowingly and intentionally using a private and unsecure email server to conduct State Department business, putting classified information on it (some of which was classified at the highest level of secrecy), exposing this material to hostile actors, putting national security at risk, refusing to cooperate with the State Department’s Inspector General when his office tried to investigate, destroying thousands of emails after an inquiry was already underway (and deleting them so carefully that even the FBI’s forensic experts were unable to recover them), lying about having handed over all of her work emails, and lying about just about everything else having to do with the affair, including lying under oath. (He had some ‘splainin’ to do.)

Let me say first of all that this is an impressive man. He is obviously of high intelligence. He is poised, and he speaks very plainly. It is easy to understand why so many people hold him in such high esteem.

One of the things that he said today, many times, is that he was not interfered with in any way by anyone. If he is a liar, he is a very good one. My inclination at this point is to believe him.

Having already discussed the points Mr. Comey made in his original statement, I won’t rehash them here, except to focus on his reason for not recommending prosecution. The charge that seems most self-evidently applicable is that of gross negligence under the Espionage Act (specifically, 18 U.S. Code § 793 (f)). Director Comey made it very clear indeed that Mrs. Clinton was negligent in her handling of extremely sensitive material. There can also be no doubt that anyone in her position would know very well that there are strict protocols for handling such information — protocols that she clearly, and willfully, ignored.

So why not recommend filing criminal charges, given the facts and the law? Mr. Comey’s answer was that he could not find a clear precedent for such a prosecution.

In purely logical terms, this would make all prosecution impossible, as the first prosecution under any criminal statute is necessarily without precedent. Mr. Comey instead focused on the fact that he could not find “clear evidence” of criminal intent. This seems odd, as it is abundantly clear that Mrs. Clinton intended to create the conditions that put secure material at risk; she was offered a secure State Department email system to use for her business, and refused to do so, opting instead to use an unsecure server in her basement. Mr. Comey himself said that “any reasonable person in Secretary Clinton’s position” should have known this was wrong, and very badly so; this appears to leave us only the two conclusions that Mrs. Clinton is not a reasonable person, or that she knew it was wrong.

Which seems more likely to you, readers? That Hillary Clinton is not a reasonable person, or that she is a person who would knowingly do something wrong?

Mr. Comey also said that “no reasonable prosecutor” would bring this case, but since his remarks many have come forward to say they most certainly would. (See, for example, this sequence of posts by the noted Federal prosecutor Andrew McCarthy, here, here, http://www.nationalreview.com/corner/437566/director-comeys-concession-states-prosecute-negligent-homicide?target=author&tid=900151, and here.)

Why, then? If we assume (a) that Mr. Comey is a man of expert competence, (b) that he was not bribed or blackmailed by the Clintons or the Obama apparatus, and (c) that Mrs. Clinton was obviously negligent (at the very least) with her handling of sensitive material entrusted to her care, in violation of Federal law, why would he find such a tortured way to avoid dropping the hammer?

I’ve heard a lot of ideas about this, but I think the most plausible one — several people have expressed it — is that he simply did not want the FBI, and in particular James Comey, to be the one to bring about such an enormous political cataclysm, one that would deflect the course of history. Charles Krauthammer said it well, I think:

When Chief Justice John Roberts used a tortured, logic-defying argument to uphold Obamacare, he was subjected to similar accusations of bad faith. My view was that, as guardian of the Supreme Court’s public standing, he thought the issue too momentous — and the implications for the country too large — to hinge on a decision of the court. Especially after Bush v. Gore, Roberts wanted to keep the court from overturning the political branches on so monumental a piece of social legislation.

I would suggest that Comey’s thinking, whether conscious or not, was similar: He did not want the FBI director to end up as the arbiter of the 2016 presidential election. If Clinton were not a presumptive presidential nominee but simply a retired secretary of state, he might well have made a different recommendation.

Prosecuting under current circumstances would have upended and redirected an already year-long presidential-selection process. In my view, Comey didn’t want to be remembered as the man who irreversibly altered the course of American political history.

And with no guarantee that the prosecution would succeed, moreover. Imagine that scenario: You knock out of the race the most likely next president — and she ultimately gets acquitted! Imagine how Comey goes down in history under those circumstances.

I admit I’m giving Comey the benefit of the doubt. But the best way I can reconcile his reputation for integrity with the grating illogic of his Clinton decision is by presuming that he didn’t want to make history.

I don’t endorse his decision. (Nor did I Roberts’s.) But I think I understand it.

Of course, all of this depends on whether you believe Mr. Comey’s repeated assertion that he was not following orders. But if you do, the other options are few — because his recommendation is incomprehensible. (His one other comment about not recommending charges was that he bent over backward to avoid the appearance of “celebrity hunting” — but of course what he did was to give the even more toxic appearance of deference to power. What he is supposed to do, of course, is simply to enforce the law, without regard to any of that.)

One further note: it became clear in today’s testimony that Mrs. Clinton lied under oath to Congress back in October about what was on her server. Mr. Comey more or less agreed that this is so, but said he hadn’t investigated that, because Congress hadn’t asked him to. I imagine that now they will.

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14 Comments

  1. Malcolm,

    … his recommendation is incomprehensible.

    Appealing to Occam’s razor, his recommendation becomes comprehensible — he was simply not telling the House Oversight … Committee “the truth, the whole truth and nothing but the truth”.

    He dissembled his testimony. That’s the only way to make his recommendation comprehensible.

    Posted July 8, 2016 at 1:25 am | Permalink
  2. Kevin Kim says

    “Comey didn’t want to be remembered as the man who irreversibly altered the course of American political history.”

    But if Putin and Xi end up waving HRC’s emails around on camera come October, Comey will be remembered as the man who let a felon—possibly a traitor—go.

    Posted July 8, 2016 at 1:48 am | Permalink
  3. Malcolm says

    Kevin,

    But if Putin and Xi end up waving HRC’s emails around on camera come October…

    Perhaps threatening to wave them around will serve their interests far more effectively.

    Posted July 8, 2016 at 2:00 am | Permalink
  4. Whitewall says

    I couldn’t tell if Comey was relieved to be testifying yesterday or in dread. It seemed there was a lot he wanted to say but needed the proper question first. He was careful to separate campaign lying from official lying by HRC. He all but affirmed that HRC lied under oath to Congress but he was never asked to investigate any of that. The Committee chairman told Comey he would have the official request to do it “within a few hours”. Also, as a result of Comey’s disclosure and HRCs lying, the State Dept. will reopen its investigation into her document handling and her lying about that as well. The State IG will have more to ad to his earlier condemnation of HRC. The IG will be under pressure to keep up the white wash with more white wash so maybe the thing gets tied off with a fall guy somewhere in an office below HRCs. It will depend on the integrity of the IG. People’s integrity seems to melt away when exposed to the Clinton Crime Family.

    Pretty soon I suspect there will be a great deal of leaking from numerous agencies as all this HRC criminality may finally be too much for career people to take.

    Posted July 8, 2016 at 9:28 am | Permalink
  5. J Clivas says

    “alter the course of history”? Heavens, we can’t have that! So what if history’s course is altered?

    Posted July 8, 2016 at 2:11 pm | Permalink
  6. Whitewall says

    J C…it depends on who is allowed to do the altering.

    Posted July 8, 2016 at 2:17 pm | Permalink
  7. Alterations should only be allowed by qualified tailors.

    Posted July 8, 2016 at 2:52 pm | Permalink
  8. Malcolm says

    Obviously, history is just whatever happens. This shouldn’t need spelling out, but the point is that Mr. Comey must have understood that he had extraordinary power in his hands: more than just the power to enforce the law, he held, quite likely, the power to choose whether the Clinton presidential campaign would continue, and by extension singlehandedly to decide who the next president would likely be (and therefore to have a truly outsized influence on which course the future of the United States might follow). That this might seem more power than a man like him would want to wield is understandable.

    The problem, though, is that he wielded it willy-nilly; by declining to prosecute, he very possibly had as much effect on the nation’s future than if he had called for charges.

    Whether he liked it or not, he was the hinge of history on that day. I wish he had chosen to enforce the law.

    Posted July 8, 2016 at 3:06 pm | Permalink
  9. I think that Comey overthought by half his own effect on future history. Had he simply done his job as he was appointed and obliged to do, whatever the consequences may have turned out to be would not have been his (Comey’s) responsibility. The responsibility would belong to the facts of the case as revealed by whatever legal proceedings followed his decision to act responsibly.

    Posted July 8, 2016 at 3:22 pm | Permalink
  10. Jerry says

    Why didn’t he hand it over to the Justice department and have them make the decision?

    Posted July 9, 2016 at 12:06 am | Permalink
  11. Jerry,

    Technically, Justice (the Attorney General) did make the final decision, namely, she accepted his recommendation, which she already announced she would do. Most likely, when the AG announced she would accept his recommendation, she already knew what it would be.

    Posted July 9, 2016 at 1:30 am | Permalink
  12. JK says

    “Couldn’t find a precedent” huh?

    Recent criminal enforcement actions make it clear that the Federal government is serious about enforcing patients’ privacy rights under the Health Insurance Portability and Accountability Act (“HIPAA”). In particular, these recent actions show that even a seemingly innocent peek at medical records can be a HIPAA violation.

    http://www.taftlaw.com/news/publications/detail/457-federal-government-cracks-down-on-hipaa-violations

    ***

    After 14 of its employees were found to have accessed a high-profile patient’s medical records “without a legitimate patient care need,” the nine-hospital Carilion Clinic in Roanoke, Va., is sending a clear message that this behavior will not be tolerated.

    “Appropriate actions have been taken with each employee, up to and including termination,” said Vicki Clevenger, vice president of internal audit & compliance, and chief compliance officer for the health system, in a prepared statement.

    http://www.healthcareitnews.com/news/snooping-employees-sacked-disciplined-after-hipaa-breach

    ***

    Good thing the State Department didn’t have access to anybody’s Obamacare info.

    Posted July 9, 2016 at 5:30 pm | Permalink
  13. Whitewall says

    Looks like Diplomad is on the Dallas terrorist attack…
    http://www.thediplomad.com/2016/07/dallas-massacre-progressives-you-built_8.html

    Posted July 10, 2016 at 9:03 am | Permalink
  14. Robert, thanx for the link. This is the meat and potatoes of that post:

    An atmosphere of lawlessness exists in the country which I have not seen since the 1960s, along with an atmosphere of officially sanctioned stupidity which I have never seen before. The public schools, the universities, the media, the politicians high and low, and the well-oiled armies of NGOs and other activists for the growing legions of aggrieved multiculturalists and their politics of subgroup identity, now operate detached from reality, oblivious to the consequences of their obliviousness. We witness, as noted before, the exaltation of mental illness, leading to the triumph of insanity, including criminal insanity.

    At the highest levels of the political structure, the Clinton Crime Family operate with immunity and gain lavish wealth and power. At the same time, we little people are subject to a mounting “lawyerfication” of our lives: more and more regulations and laws telling us what we can and cannot do; dictating that we must buy ridiculously expensive government-sanctioned health insurance, for example, or face fines; that we must not object to sharing our bathrooms with the mentally disturbed; and that we must disarm for the greater good–the evil ones have guns, so we must not. I guess that last dictate makes sense to types such as AG Lynch, who goes all pecksniffian telling us to confront terrorists with love and compassion, while she, herself, lives secure behind high walls and well-armed agents, and travels in armored vehicles and dedicated aircraft.

    J’accuse the hateful and oblivious Left. We owe them nothing but disgust and scorn.

    Posted July 10, 2016 at 1:19 pm | Permalink

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