extremely careless

Former Attorney General Mukasey claims Comey is in a no-win situation due to his earlier failure to pursue a vigorous Clinton email investigation.

Michael Mukasey (Credit: The Associated Press)

Michael Mukasey (Credit: The Associated Press)

Michael Mukasey, the US attorney general from 2007 to 2009, writes an editorial in the Wall Street Journal with the title: “The FBI Director’s Dishonorable Choice.”

He suggests that FBI Director James Comey’s recent highly controversial reopening of the FBI’s Clinton email investigation shortly before the 2016 US presidential election is due to earlier mistakes Comey made in the investigation.

“Recall that Mr. Comey’s authority extends only to supervising the gathering of facts to be presented to Justice Department lawyers for their confidential determination of whether those facts justify a federal prosecution. Nonetheless, in July [2016] he announced that ‘no reasonable prosecutor’ would seek to charge her with a crime, although Mrs. Clinton had classified information on a private non-secure server—at least a misdemeanor under one statute; and although she was ‘extremely careless’ in her handling of classified information such that it was exposed to hacking by hostile foreign nations—a felony under another statute; and apparently had caused the destruction of emails—a felony under two other statutes.”

He continues, “Those decisions were not his to make, nor were the reasons he offered for making them at all tenable: that prosecutions for anything but mishandling large amounts of classified information, accompanied by false statements to investigators, were unprecedented; and that criminal prosecutions for gross negligence were constitutionally suspect.”

He also points to immunity deals made with key suspects that even included destroying their computers after limited searches, and a failure to get to the bottom of computer technician Paul Combetta’s destruction of Clinton’s emails in March 2015, supposedly done entirely on his own for no clear motive. “Why would an FBI director, who at one time was an able and aggressive prosecutor, agree to such terms or accept such a fantastic story?”

He also claims that emails between President Obama and Clinton on her private server suggested that “if Mrs. Clinton was at criminal risk for communicating on her non-secure system, so was [Obama].” The FBI needs the cooperation of a grand jury, and only the legal authority of a grand jury would give the FBI subpoena power to conduct a real investigation. If Attorney General Loretta Lynch refused to allow a grand jury, Comey “could have gone public with his request, and threatened to resign if it was not followed. … Instead, Mr. Comey acceded to the apparent wish of President Obama that no charges be brought.”

That lack of courage put Comey in his no-win situation when more evidence happened to come to light shortly before Election Day. (The Wall Street Journal, 10/30/2016)

Paul Ryan’s attempt to block Clinton from getting intelligence briefings is denied.

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James Clapper (Credit: J. Scott Applewhite / The Associated Press)

A request from Speaker of the House Paul Ryan (R) to prevent Clinton from receiving intelligence briefings after the late July 2016 Democratic National Convention is denied.

Just a few days after Ryan made the request, Director of National Intelligence James Clapper tells Ryan in a letter  that he “does not intend to withhold briefings from any officially nominated, eligible candidate. … Nominees for president and vice president receive these briefings by virtue of their status as candidates, and do not require separate security clearances before the briefings. Briefings for the candidates will be provided on an even-handed non-partisan basis.”

The briefings given both major party candidates are intended to prepare them with the information they’ll need to run the country if they win the general election.

Ryan made the request after FBI Director James Comey said that Clinton and her aides had been “extremely careless” handling highly classified intelligence. Ryan wrote in the request, “There is no legal requirement for you to provide Secretary Clinton with classified information, and it would send the wrong signal to all those charged with safeguarding our nation’s secrets if you choose to provide her access to this information despite the FBI’s findings.” (CNN, 7/11/2016)

Clinton denies that she was “extremely careless” and says there’s no reason to believe that hackers got hold of her emails.

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Clinton appears with MSNBC’s Lester Holt on July 8, 2016. (Credit: MSNBC)

When asked to respond to FBI Director James Comey’s July 5, 2016, comment that she had been “extremely careless” with highly classified material, Clinton says, “Well, I think the director clarified that comment to some extent, pointing out that some of what had been thought to be classified apparently was not.”

Comey also said that “it is possible that hostile actors gained access to Secretary Clinton’s personal email account.” But Clinton responds, “I think he was speculating. But if you go by the evidence, there is no evidence that the system was breached or hacked successfully.  And I think that what’s important here is to follow the evidence.” (The New York Times, 7/8/2016)

Comey says he didn’t recommend Clinton be charged because he couldn’t prove intent, despite the gross negligence law.

In Congressional testimony, FBI Director James Comey essentially argues that Clinton was guilty of gross negligence, which doesn’t require proof of intent, but he was only willing to indict her on intent-related charges, and there wasn’t enough evidence for that. He says: “Certainly, she should have known not to send classified information. As I said, that’s the definition of negligent. I think she was extremely careless. I think she was negligent. That, I could establish. What we can’t establish is that she acted with the necessary criminal intent.” (CNN, 7/7/2016)

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Representative William Hurd (Credit: Alchetron)

Representative William Hurd (R) asks, “What does it take for someone to misuse classified information and get in trouble for it?”

Comey answers, “It takes mishandling it and criminal intent.” He admits that Clinton mishandled the information by having it on a private server, but he doesn’t see evidence of criminal intent. (CNN, 7/7/2016)

He further comments, “There’s not evidence beyond a reasonable doubt that she knew she was receiving classified information or that she intended to retain it on her server. There’s evidence of that, but when I said there’s not clear evidence of intent, that’s what I meant. I could not, even if the Department of Justice would bring that case, I could not prove beyond a reasonable doubt those two elements.” (CNN, 7/7/2016)

At another point in the hearing, he argues, “The question of whether [what she did] amounts to gross negligence frankly is really not at the center of this because when I look at the history of the prosecutions and see, it’s been one case brought on a gross negligence theory.” (CNN, 7/7/2016)

The law criminalizing gross negligence in national security lapses was enacted in 1917. Comey says, “I know from 30 years there’s no way anybody at the Department of Justice is bringing a case against John Doe or Hillary Clinton for the second time in 100 years based on those facts.”

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James Smith (Credit: CNN)

The FBI later confirms to Politico that James Smith is the one case Comey is referring to. Smith, a longtime FBI agent, was arrested in 2003 and charged with gross negligence. However, he later pleaded guilty in return for having the charges reduced to one count of making false statements. (Politico, 7/7/2016)

But Comey’s claim that gross negligence has only been used once in recent decades is true only if one looks at cases brought by the Justice Department. Cases have also been brought in the military justice system.

Additionally, Politico points out, “Comey’s universe was also limited to cases actually brought, as opposed to threatened. The gross negligence charge is often on the table when prosecutors persuade defendants to plead guilty to the lesser misdemeanor offense of mishandling classified information.” (Politico, 7/7/2016)

Later in the hearing, Representative Blake Farenthold (R) says, “So Congress when they enacted that statute said ‘gross negligence.’ That doesn’t say ‘intent.’ So what are we going to have to enact to get you guys to prosecute something based on negligence or gross negligence? Are we going to have to add, ‘and oh by the way, we don’t mean — we really do mean you don’t have to have intent there?'”

Comey replies, “That’s a conversation for you all to have with the Department of Justice. But it would have to be something more than the statute enacted in 1917. Because for 99 years, they’ve been very worried about its constitutionality.” (CNN, 7/7/2016)

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Representative Tim Walberg (Credit: Twitter)

Representative Tim Walberg (R) asks him, “Do you believe that the — that since the Department of Justice hasn’t used the statute Congress passed, it’s invalid?”

Comey responds, “No. I think they are worried that it is invalid, that it will be challenged on Constitutional grounds, which is why they’ve used it extraordinarily sparingly in the decades.” (CNN, 7/7/2016)

During the hearing, it is pointed out several times that felony crime based on negligence and not intent are common at both the state and federal level, for intance manslaughter instead of murder, and their consitutionality has never been successfully challenged. At one point, Comey admits other negligence cases have been sustained in the federal system: “They’re mostly, as you talked about earlier, in the environmental and Food and Drug Administration [FDA] area.” (CNN, 7/7/2016)

But he is adamant about not indicting any cases without being able to prove intent. At one point, he even suggests he is philosophically opposed to any laws based on negligence when he mentions, “When I was in the private sector, I did a lot of work with the Chamber of Commerce to stop the criminalization of negligence in the United States.” (CNN, 7/7/2016)

FBI Director answers questions before a Congressional committee, further criticizing Clinton but also defending his decision not to indict her.

James Comey testifies to the House Oversight Committee on July 7, 2016. (Credit: Andrew Harrer / Bloomberg News)

James Comey is questioned before Congress on July 7, 2016. (Credit: Andrew Harrer / Bloomberg News)

On July 5, 2016, FBI Director James Comey gave a fifteen-minute public speech, in which he criticized Clinton’s handling of classified information but announced he would not recommend that she be indicted for any crime. He did not take any questions from reporters afterwards. But only two days later, he appears at a Congressional hearing to further explain and defend his comments.

Comey was invited by Representative Jason Chaffetz (R), who is chair of the House Oversight and Government Reform Committee, to speak in front of the committee. Comey takes questions for four and a half hours.

Not surprisingly, Republicans use the hearing to look for more evidence to attack Clinton with, while Democrats attempt to defend Clinton’s behavior.

The New York Times notes that Comey defended himself “against an onslaught of Republican criticism for ending the investigation into Hillary Clinton’s emails, but he also provided new details that could prove damaging to her just weeks before she is to be named the Democrats’ presidential nominee.”

He “acknowledged under questioning that a number of key assertions that Mrs. Clinton made for months in defending her email system were contradicted by the FBI’s investigation.” However, he also defends his decision not to seek any indictment. (The New York Times, 7/7/2016)

Comey repeats some of the main points he made in his July 5, 2016 speech: “I think she was extremely careless. I think she was negligent — that I could establish. What we can’t establish is that she acted with the necessary criminal intent.” (CNN, 7/7/2016)

Clinton won’t face punishment if she wins the presidency, but some of her former aides could.

Since Clinton is the presumptive Democratic nominee for president, she is unlikely to face any punishment for her email practices, despite FBI Director James Comey calling her “extremely careless” with highly classified information. Once she officially becomes the Democratic presidential nominee, she will automatically get security briefings. If she wins the presidency in the November 2016 election, she won’t have to apply for a security clearance.

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William Cowden (Credit: public domain)

National security lawyer Gregory Greiner says that if a typical low-level government employee did what Clinton did, “he would have lost his clearance and lost his job.” William Cowden,  a former Justice Department lawyer, similar says, “If she were currently a federal employee, she would be sanctioned.” But Clinton isn’t currently employed in the government, and the FBI chose not to take away Clinton’s security clearance during their investigation into her email practices, even though that is routine in similar cases.

Mark Zaid, a Washington lawyer who specializes in national security employment law, says he is particularly interested to see whether Clinton’s former aides will get security clearances if she wins the presidency. “Having seen the hundreds of people I’ve represented over a 20-plus year career who have lost their clearances for doing far less” than Clinton and her top aides, “I’m going to be really, really bothered and troubled” if they come out unscathed in the security clearance process.

The Washington Post notes that “losing a security clearance often is the equivalent of being fired. In some agencies, all jobs or most of the good ones, require a security clearance. Many of the individual contractors who work for those agencies also must have a security clearance. If you lose it, you could lose the ability to work in your field.” (The Washington Post, 7/7/2016)

“Extremely careless” is said to be the “money quote” of FBI Director Comey’s speech, and could affect the presidential election.

A Washington Post news analysis comments, “Of the more than 2,000 words FBI Director James Comey said in his unusually detailed statement [on July 5, 2016] that all but cleared Hillary Clinton of criminal indictment over the long-running probe into her email, two in particular got the most attention. ‘Extremely careless,’ Comey’s phrase to describe Clinton and her colleagues’ handling of classified information, has been called the statement’s ‘money quote,’ perhaps the biggest headline of the statement other than its absence of recommended charges, and the one nearly certain to any minute now be put on repeat in ads for presumptive [Republican] nominee Donald Trump.”

The Post also notes that in national polls, Clinton rates very poorly on honesty and trustworthiness, butt high on competence. However, the “extremely careless” quote could be used by Trump to criticize Clinton on one of her greatest perceived strengths.

Furthermore, it’s possible that “Comey’s comment will simply bounce off Clinton’s long-cultivated armor of competence.” But it’s also possible that the phrase could leave a permanent mark on her reputation. “Coming from a law enforcement official who has served both political parties and not shied away from conflict with either, it bears plenty of weight.” (The Washington Post, 7/6/2016)

Although Clinton’s aides won’t be indicted, they may lose their security clearances.

Bill Savarino (Credit: public domain)

Bill Savarino (Credit: public domain)

The New York Times reports that although the FBI has decided not to recommend the indictment of Clinton or her former aides, the FBI’s Clinton investigation has “cast a cloud of doubt over the political futures of a number of her top advisers, including some expected to hold high-level jobs in her administration if she is elected president.”

On July 5, 2016, FBI Director James Comey said that although there was no clear evidence that Clinton or her aides intended to violate national security laws, “there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.” He also noted that people in similar situations “are often subject to security or administrative sanctions.”

The Times suggests this could affect the security clearances of “several dozen State Department advisers who, records show, facilitated Mrs. Clinton’s unorthodox email arrangement or used it to send her classified documents.” Those facing the most scrutiny are her former top advisers Cheryl Mills, Huma Abedin, and Jake Sullivan, who continue to work closely with Clinton.

The State Department has restarted an internal investigation into Clinton’s email usage, and that could lead to some security clearances being revoked. Speaker of the House Paul Ryan (R) has said that, based on the conclusions of the FBI’s investigation, Clinton should be denied the classified briefings normally given the major presidential nominees.

Bill Savarino, a lawyer specializing in security clearances, says, “I’ve never seen anything quite like this. You’ve got a situation here where the woman who would be in charge of setting national security policy as president has been deemed by the FBI unsuitable to safeguard and handle classified information.” He adds that if any of Clinton’s former top aides involved in the controversy were to ask him for help seeking a future security clearance, “I’d tell them that you’ve got a fight on your hands.'”

Sean M. Bigley, another lawyer specializing in security clearances, says his law firm has routinely defended clients who have lost their security clearances because of violations that were “much less egregious” than those described by Comey. “The folks who were involved with this, even on a peripheral basis, at least are going to be facing administrative action, or should be, based on the historical cases we’ve dealt with.” He says the threshold for administrative punishment is much lower than for criminal prosecution. (The New York Times, 7/6/2016)

A former FBI assistant director believes Comey could have indicted Clinton for gross negligence, but introduced an intent element that doesn’t apply.

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Ron Hosko (Credit: CNN)

Former FBI Assistant Director Ron Hosko, who worked under FBI Director James Comey, comments on Comey’s decision not to recommend Clinton’s indictment. He believes Comey has “impeccable morality and ethics,” and says, “For an indictment you need probable cause, but prosecutors and investigators are looking for far more. You’re looking down the road at a substantial likelihood of success at trial that’s beyond a reasonable doubt.”

However, Hosko also believes the elements for an indictment were clearly met based on the wording of the federal “gross negligence” statute to which Comey referred in his July 5, 2016 public speech. He notes that Comey stated, “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.”

Hosko highlights Comey’s use of the phrase “extremely careless.” “To me, that has the same DNA as gross negligence that the statute requires. Those are identical twins.” He says that Comey seemed to introduce an element of intent that is not in that statute. (CNBC, 7/6/2016)

The White House says it had no advance notice of the FBI’s decision about Clinton.

President Barack Obama talks with FBI Director James Comey during Comey's installation as FBI director, Monday, Oct. 28,2013, at FBI Headquarters in Washington. (Credit: Charles Dharapak / The Associated Press)

President Barack Obama talks with FBI Director James Comey during his installation as FBI director, Oct. 28,2013. (Credit: Charles Dharapak / The Associated Press)

White House Press Secretary Josh Earnest says, “I can first confirm what [FBI] Director [James] Comey said with regard to the White House, which is that no one from the White House received advance notice of his comments. In fact, no one from the White House received advance notice that he was planning to make comments today.”

Earnest refuses to comment on Comey’s assessment that Clinton and her aides were “extremely careless” in their handling of sensitive classified material, or Comey’s recommendation that he nonetheless would not recommend she be indicted. (Politico, 7/5/2016)