RUTHFULLY YOURS

James Comey’s rationale for not referring Hillary Clinton’s email crimes to the Justice Department rested almost entirely on a single, quite thin, legal and ethical plank, which was that she did not act intentionally when she sent and received classified emails over her home-brew server.   Though his argument for deferring prosecution was mostly specious, it did contain at least a shred of credibility in that as Comey described the situation to the American public and Congress, Hillary had no motive to intentionally put American national security at risk.  However, the recent evidentiary revelation (many would say confirmation) that Hillary established the server with the deliberate intent of shielding her illicit influence-peddling for her family “Foundation” while secretary of state shows that the issue of her motivation could not be seen by any “reasonable” prosecutor as exculpatory.  Comey’s refusal to recommend prosecution, while knowing these facts at the time, proves he was not reasonable, and also that he is incompetent and culpable for not doing so.

At Comey’s July 5 briefing to the nation, he attempted to justify his actions.  His first claim in this regard was that the FBI, having uncovered through laborious effort many work-related emails that Clinton did not turn over to State, “found no evidence that any of the work related emails were deleted in an effort to conceal them.”  Then Comey noted that Hillary’s attorneys were deliberately overbroad in determining which emails were work-related and “relied on header information” and “search terms” rather than reading them, and that when they finished, the lawyers “cleaned their devices in such a way as to preclude complete forensic recovery.”  Despite this, Comey then said he had “reasonable confidence there was no intentional misconduct in connection with that sorting effort.”  Then, before launching into a description of all the ways Hillary and her minions were “extremely careless,” Comey said, “[W]e did not find clear evidence that Secretary Clinton or her colleagues intended to violate the laws governing the handling of classified information[.]”

Comey concluded his statement with several more references to intent, and the lack thereof.  He famously said:

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.

Less famously but just as importantly:

[W]e 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 first of these to statements is a specious rationalization.  The second is a bald-faced lie in support of that rationalization.

Comey essentially claimed that a reasonable prosecutor would not bring this case due to a lack of intent and to the rarity of pursuing an individual under the statute for purely negligent conduct (which he repeatedly accused Hillary of doing).  Comey’s claim is false on both premises.

In the first instance, even assuming for the sake of argument that intent could not be proved, the mere fact that a statute is seldom used is hardly justification for ignoring it when a fact pattern clearly fits it.  It may be that few if any have been prosecuted historically under the “gross negligence” standard of the statute, but it is equally clear that Hillary’s “extremely careless” conduct was also highly unusual – in fact, as the lawyers say, sui generis – fully justifying utilizing a rarely invoked statute for a rarely occurring fact pattern.  Comey’s rejection of this premise was illogical, craven, and corrupt.

But this was really a smoke screen, for Comey knew there was clear proof of intent, by standards that any reasonable – indeed, competent – prosecutor would instantly recognize.  In the first place, as Comey implied in his own statement, intent can be inferred.  Actually, intent is almost always inferred in criminal cases, as absent a confession or an inculpatory statement recorded or made to a witness, there is usually no direct evidence of intent.  Yet thousands of Americans go to prison every year, and some even end up on death row, for crimes of intent proven through inference.

For example, probably most second-degree murder charges are proved through inferential intent.  A working man goes to a bar after a hard day, carrying his handy work knife and intent on some heavy drinking but not on killing anybody.  But during the course of the evening, words are exchanged with some stranger in the bar, and by the end of the evening that stranger is dead, cut in the course of a drunken argument.  The defendant swears he had no intention of killing anybody and is regretful, but he gets routinely convicted of the intentional killing of the stranger anyway, his intent inferred through his possession of the knife, his heavy drinking, his willingness to argue, and finally the slash of his blade, which, though he may say was intended only to wound or frighten, ended up killing.

In Hillary’s case, at the time Comey made his statement, we knew that while there was no admission of intent from Hillary or her cohorts, there was plenty of evidence from which to infer that intent.  There were her purposeful setup of a private home-brew system in direct violation of the regulations of her own secretariat; her and her attorneys’ deletions of email and more falsehoods in that regard; the erasures made in a way to frustrate forensic recovery; and finally, with respect to all these things, Hillary’s repeated mendacity in attempting to explain away her actions.

This was more than enough to infer intent, but Comey knew something else, which he deliberately concealed from the American people and, a few days later, Congress.  Comey knew that many of the deleted (and recovered) emails regarded Hillary’s inappropriate and corrupt relationship with the Clinton Foundation, through which she ran, at the very least, an active and profitable pay-for-access scam with Foundation donors.  Whether criminally actionable in itself or not, these facts, known to Comey at the time, provided conclusive evidence of intent, because they provided clear evidence of motive.

The absence of clear proof of motive to expose American secrets was perhaps the only glue holding Comey’s rationalizations together.  The revelation of Clinton’s motives through the clear and convincing evidence of her deleted emails doesn’t just make an inference of intent provable; it strips from any honest and competent prosecutor or policeman the last thinnest justifications for inaction.  That Comey knew all this at the time he made his July 5 statement, reinforcing his dishonest justifications shortly thereafter before Congress, is not merely unreasonable, but utterly and criminally corrupt.  He can and should be impeached, regardless of the outcome of proceedings in the Senate (which will never convict him).  This would be salutatory if only to vindicate his own agency and demonstrate to the American people, and FBI employees, that he is a dishonest and corrupt fraud who deserves to be shamed.