William Portanova, the lawyer who represented a retired Navy commander who was convicted in 2015 for similar conduct to Hillary Clinton’s mis-handling of classified information, says the law has a perverse incentive to discourage telling the truth.
“It’s a strange quirk in the system that honest people who tell the truth and admit things are not rewarded, and streetwise people who know to remain silent are, in fact, given the benefit of their silence,” Portanova told Breitbart News on Wednesday.
Portanova represented Bryan Nishimura, a retired Navy commander who served in Afghanistan and had downloaded classified information to a personal electronic device.
Last year, Portanova said: “The innocent mishandling of classified data is apparently something the government cares about so long as you’re not a candidate for the presidency.”
On Wendesday, Portanova was more circumspect, saying that Nishimura’s case was different than Clinton’s because his client knew that he had downloaded classified information, whereas it was not clear, at least in the FBI’s view, that Clinton had done so knowingly.
He added that while the law was written to punish “gross negligence,” prosecutors typically do not indict defendants under that standard, preferring to pursue cases where there is clear knowledge or intent.
The result is that people who come forward voluntarily are punished, he said.
“So the good guys do talk because they believe that telling the truth is better for everybody, and other people who choose not to talk can get away with something. It’s an unfortunate quirk of the law.”
Portanova, a former federal prosecutor himself, praised FBI director James Comey for his decision not to recommend that Clinton be prosecuted.
“I’m deeply cynical and suspicious of government at every level, but there are people that I’ve come to trust, and many of them are federal prosecutors and FBI agents. And I consider James Comey to be one of the truly honest public officials I’ve come across, professionally.
“He’s a man of great integrity, he has demonstrated that he’s not afraid to stand up to power, more than once, and as a former federal prosecutor, to me his arguments, while not popular, ultimately made legal sense,” Portanova said.
Though he said that Comey’s press conference “sounded like the closing argument of a prosecution,” Portanova said it left him “satisfied.”
“People have not been getting prosecuted for this for gross negligence, and the only people who got prosecuted were those who admitted they’d done it. It doesn’t mean that knowledge is required for the offense, but … Comey distinguished between what the law says and what the policies have been.”
That might be unfair, including to his client. However, Portanova said, “It really boils down to this: gross incompetence is apparently not a prosecutable offense.”
Joel B. Pollak is Senior Editor-at-Large at Breitbart News. His new book, See No Evil: 19 Hard Truths the Left Can’t Handle, will be published by Regnery on July 25 and is available for pre-order through Amazon. Follow him on Twitter at @joelpollak.