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.