Mike Mukasey, who served as Attorney General from 2007 to 2009, says FBI Director James Comey wrongly excused Hillary Clinton during his press-conference by wrongly claiming that any prosecution requires strong evidence that she had the intent to violate classification laws.
Federal Bureau of Investigation Director James Comey opened and closed his statement to the press Tuesday with expressions of gratitude and pride to be associated with the bureau. His description of FBI agents’ work on the Hillary Clinton email investigation showed why he feels that way. Whether the rest of his statement—explaining why he wasn’t recommending prosecution of Mrs. Clinton—should make the feeling mutual is an open question.… It is a felony for anyone entrusted with lawful possession of information relating to national defense to permit it, through “gross negligence,” to be removed from its proper place of custody and disclosed. “Gross negligence” rather than purposeful conduct is enough.Yet Mr. Comey appears to have based his recommendation not to prosecute on the absence of “clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information” ….[But] as an example of the kind of information at stake, he described seven email chains classified at the Top Secret/Special Access Program level. These were the emails that the government had said earlier are so sensitive that they will never be disclosed publicly. Mr. Comey went further, citing “evidence to support a conclusion that any reasonable person in Secretary Clinton’s position . . . should have known that an unclassified system was no place for that conversation.” To be “extremely careless” in the handling of information that sensitive is synonymous with being grossly negligent.
And what of the finding that the investigation did not disclose “clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information”? Even the felony statute requires no such evidence, and no such intent.
The misdemeanor involves simply the knowing removal of classified documents to an unauthorized location. That is the statute to which David Petraeus, the former U.S. Army general and Central Intelligence Agency director, pleaded guilty in 2015. (He had disclosed classified documents to his biographer/mistress, who also had top-secret clearance, returned the information to him and never disclosed it in his biography or elsewhere.)
Mr. Comey mentioned three considerations prosecutors weigh in considering charges: the strength of the evidence, “especially regarding intent”; “the context of a person’s actions”; and “how similar situations have been handled in the past.” Criminal intent of the usual sort, as noted, is not a requirement of either statute.
Mr. Comey didn’t explain why, with evidence clearly fulfilling the requirements of the two statutes involved, no reasonable prosecutor would bring a case—except for the director’s inaccurate assertion that it had never been done before.