RUTHFULLY YOURS

Even absent Hillary Clinton’s latest bleat about how he cost her the election, FBI director James Comey’s testimony on Wednesday at a routine oversight hearing of the Senate Judiciary Committee was certain to be anything but routine. And sure enough, Comey mounted a vigorous defense of his letter of October 28, 2016 — eleven days before Election Day — in which he informed Congress that the Clinton e-mails investigation had been reopened.

Director Comey did nevertheless allow that he was made “mildly nauseous” by the suggestion that his letter affected the vote’s outcome.

Several features of the hearing were especially worth noting. I have dealt with one of them in a separate column — viz., the director’s continuing defense of his assessment that there was insufficient criminal-intent evidence to warrant charging Mrs. Clinton. Now, let’s turn to another: the Democrats’ effort to skew or erase entirely the context of Comey’s October 28 letter.

It would be foolish to deny that the letter may have had some impact on voters. The effect was likely very small: By the time of the letter (as our Jim Geraghty has related), 35 million Americans had already voted; most voters had already made up their minds about the e-mail scandal after many months of coverage and commentary; Comey’s notification did not announce charges or accuse Clinton of additional wrongdoing; and the ultimate determination that the new evidence did not change the FBI’s decision against bringing charges was also announced before Election Day. Still, to say President Trump’s margin of victory was “razor thin” is an understatement. So close was the contest that it is hard to discount anything as a factor possibly material to the outcome.

That said, Democrats would now have you believe that history began on October 28. In reality, the critical context of that day’s letter to Congress was the Comey press conference four months earlier — on July 5 — followed by the director’s extensive congressional testimony in the days that followed. It makes no sense for Democrats to complain about the letter and its departure from protocol but ignore the press conference’s far more extensive departures. To the (debatable) extent that there was a need to notify Congress in late October that the investigation had been reopened, it was precisely because the director, in early July, had made a highly unusual, highly public pronouncement that the investigation was complete and the case too weak to charge.

You may recall the unrestrained Democratic glee over that particular breach of protocol.

Of course, smarter Democrats perceive this incongruity. Thus, rather than ignore the Comey press conference, they bowdlerize it, choosing to remember only the first three-quarters of Comey’s bravura performance. That, you’ll recall, is the part in which the director rebuked Clinton for her inappropriate conduct, her “extreme carelessness” in handling highly classified information, the cavalier culture that prevailed during Clinton’s State Department tenure regarding the need to safeguard intelligence, and so on.

What Democrats choose to forget, and hope you will too, is the closing section of Comey’s remarks. That was when he seized the power of the Justice Department to render legal conclusions about both the prosecutorial merits of the case and the interpretation of the relevant criminal statute. In this conclusion, not only did Comey claim that Clinton’s conduct did not warrant an indictment, he gratuitously added the declaration that no “reasonable prosecutor” could disagree with his assessment.

This was a specious claim, but it commanded a respectful hearing, having come from an official who was not just the nation’s top investigator but had been a highly accomplished, top-ranking prosecutor in his own right. And remember (even if Dems prefer that you forget), Comey’s “lack of criminal intent” theory swept aside not only the classified-information felonies but also Clinton’s willful destruction of tens of thousands of government records — more felonies. By the time the press conference ended — poof! — it was as if someone had taken BleachBit to the thought of filing such charges.

Now that Clinton has lost and Democrats need a scapegoat, they have suddenly developed amnesia over this decisive aspect of the Comey press conference. But it saved Clinton’s candidacy. Now that we know what a lousy campaign she ran from July to November, Democrats understandably don’t regard this as any great favor. Back in July, however, when they were so sure that only Comey — and certainly not Donald Trump — could derail the next Clinton administration, Democrats could not have been more effusive in proclaiming the director’s unwavering integrity and legal acumen.

Now that Clinton has lost and Democrats need a scapegoat.

In his testimony today before the Senate Judiciary Committee (on which I’ll have more to say in an upcoming column), FBI director James Comey has stuck by his claim that declining to bring charges against Hillary Clinton for mishandling classified information was the right call because proof of intent was lacking. This is unsurprising. The director has repeated this analysis many times. It hasn’t gotten better with age, but given his insistence that “no reasonable prosecutor” could possibly disagree with him, I’m not holding my breath waiting for him to reverse himself.

In my column over the weekend, discussing a lengthy New York Times report about the Clinton e-mails investigation, I briefly rehashed why Comey is wrong about this:

This is a convoluted part of the story, stemming from the Justice Department’s effective rewriting of the applicable statute to avoid charging Clinton. As the Times tells it, the Justice Department and the FBI knew that to charge Clinton with a crime, it would not be enough to prove she had been “sloppy or careless”; instead, “they needed evidence showing that she knowingly received classified information or set up her server for that purpose.”

As I have contended before, this claim is specious on multiple levels. Subsection (f) of the pertinent statute (the Espionage Act, codified at Section 793 of Title 18, U.S. Code) makes it a felony to mishandle classified information “through gross negligence” — i.e., proving Clinton was sloppy or careless (or “extremely careless,” to use Comey’s own description) could have been sufficient. But beyond that, Clinton willfully set up a private network for the systematic handling of her State Department-related communications, in violation of federal record-keeping requirements of which she was well aware, and under circumstances in which she (a former senator who served for years on the intelligence Armed Services committee) was a sophisticated longtime consumer of classified information. She was keenly aware that her responsibilities as secretary of state would heavily involve classified information — whether it was “marked” classified or “born classified” because of the subject matter.

It is irrelevant whether Clinton’s purpose was to transmit or store classified information on the private, non-secure server; prosecutors are not required to prove motive. The question is whether she knew classified information would end up on the server, and her set-up made that inevitable.

That is, Clinton could have been prosecuted either for willfully mishandling classified information or for doing so through gross negligence.

As I elaborate in the column, the Times did not address the controlling statute in its 8,000-word article. Instead, the story was that Clinton could not be charged because of the purported Petraeus precedent. We are to believe that the evidence of former CIA director David Petreaus’s criminal intent was far stronger than Clinton’s, yet he was not charged with the felony mishandling of classified information (he was permitted to plead guilty to a misdemeanor); ergo, it would have been an abuse of prosecutorial discretion to charge Clinton with the felony.

I addressed this in the column as well:

This line of reasoning is fatuous — and it’s another instance of the Justice Department adopting Clinton campaign cant. Petreaus shared his classified diaries with a single person, a paramour who actually had a security clearance (albeit not one high enough to view what she was shown). Clinton’s offense was more extensive in duration and seriousness.

Assuming the accuracy of the Times’s account, Comey is quite right that Petraeus should have been indicted on much more serious charges (as I have contended). But the Justice Department’s dereliction in Petraeus’s case was hardly a justification for giving Clinton a pass on a more egregious offense that, unlike Petraeus’s, (a) almost certainly caused the compromise of government secrets to foreign intelligence services and (b) resulted in the destruction of tens of thousands of government records — a separate felony. Clinton’s misconduct should have been prosecuted under the governing law, not excused based on the sweetheart plea deal Petraeus got.

Some good news for readers who enjoy personal freedom and eating pizza: The Trump Administration this week delayed calorie rules that carried criminal penalties for errant pepperonis. Now Congress should rework the idea in legislation.

The Food and Drug Administration announced on Monday that the agency would delay a May 5 enforcement date for a rule that requires restaurants with more than 20 locations to post calorie counts on menu boards, ostensibly to encourage healthy choices and prevent a patchwork of state labeling schemes. The mandate was included in the Affordable Care Act in 2010.

But the resulting regulation has been thrice delayed because it required pizza chains to display per slice ranges for an estimated 34 million topping combinations. Imagine a sign that reads “200-800 calories per slice of one-topping medium pizza” with lists of individual accoutrements that span from 0-400 calories, with each one varying based on whether you add other toppings. Do you feel edified about your food choices?

The displays would be ripped up and replaced for every limited-time special. Franchisees—that is, local business owners, not Mr. Moneybags—would sign affidavits that “reasonable” efforts were made to ensure the accuracy of the placards. That’s an invitation for trial lawyers to drag every last pizza to a lab for verification. The penalties for noncompliance include a year in jail, and who knew that a job at Papa John’s could lead to a life of crime.

A bill in the House would eliminate the fines and hard time, as well as allow pizza places to display information online, where customers can already find it. Health and Human Services Secretary Tom Price, who deserves credit for the stroke of common sense, voted for an earlier version of the legislation. Congress should move on it before next year’s new enforcement date arrives, though the FDA could also revise the rule.

The FDA’s final guidance is riddled with amusing introspections on what constitutes a “combination meal” or how to label pumpkin lattes, but the less funny reality is that the pizza industry has spent years and millions of dollars fighting this insane rule-making. The Trump Administration is right to put those resources back in the productive economy.