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.