Case studies for Comey: Part II(b)
[Part I can be found here, and Part II(a) is here.]
In addition to the Petraeus case (which I discussed in Part IIa), another well-known case that’s relevant to Hillary Clinton’s emails is that of Sandy Berger, described here.
It’s never been all that clear why Berger removed classified documents (the original and some copies of a single report) from the National Archives reading room and lied to authorities about it (he says it was to prepare for testimony he was about to give). But like Petraeus, Berger was threatened with jail and ended up pleading guilty to a lesser charge. The Berger case seems to have involved a decision to prosecute in a situation that seems to have featured less serious offenses than Hillary’s rather than more.
Politico offers this summary of some of the relevant cases:
Former FBI agent J.J. Smith was charged with five felonies, including grossly negligent mishandling of classified information for allowing an FBI informant to obtain highly sensitive bureau information. Smith was having an affair with the informant, Katrina Leung, who was also working for Chinese intelligence. Leung wound up with several FBI documents including a “Secret” memo on Chinese fugitives and an unclassified FBI phone directory…
In a plea deal, Smith pleaded guilty to a single felony count of lying to investigators. He was sentenced to three months house arrest, three years probation and a $10,000 fine…
There are also a handful of cases involving lower-level employees or contractors where prosecutors have pursued criminal charges or jail time despite the lack of a clear public link to espionage, leaking or some other malfeasance.
A Boeing engineer who took home what prosecutors called “an adult giraffe”’s-worth of sensitive information on missile defense programs, Abraham Lesnik, pled guilty in 2008 to a felony charge of unauthorized retention of classified data.
Lesnik’s travel and ties to Israel appear to have been a factor, but prosecutors said they had no evidence he planned to misuse the roughly 2000 classified documents, including about 400 marked top secret found on a thumb drive, laptop and other devices at his California home and in a storage locker…
The toughest punishment handed down in recent memory for mishandling classified information went to former National Security Agency analyst Kenneth Ford Jr., who was sentenced in 2006 to six years in prison for taking to his home two boxes of classified documents and other records from NSA headquarters in Maryland. He was also convicted of lying on a job application form.
Here’s another article about Kenneth Ford. If you read it you will see that not only was his offense far less serious than Clinton’s, but he may also have been set up by a girlfriend.
Then there’s the Nishimura case, in which a Naval officer was charged for offenses which also seem less than Hillary’s and have no intent element. What’s more, this case was the result of an FBI investigation:
Just last year, former Naval Reserve Commander Bryan Nishimura was charged with misdemeanor mishandling of classified information he acquired during his service in Afghanistan. He admitted that he often moved classified data, including satellite imagery, to unclassified systems and brought it back to the U.S. when he returned.
After coming under investigation, Nishimura threw some of the storage media in a Folsom, Calif. lake. He was sentenced to two years probation and a $7,500 fine.
Giuliani said the way Clinton disposed of many of her emails could similarly buttress a prosecution.
You can find more information on the Nishimura case here.
The argument is presented in this article that the big distinction between Hillary and Nishimura is that in Nishimura’s plea bargain he admitted he “knew that he was only authorized to view such CLASSIFIED data in digital format on authorized government computers, and was not permitted to remove CLASSIFIED data from such authorized government computers.” But as with Petraeus, one can assume that this admission in the plea deal occurred because authorities were threatening to go ahead with a prosecution. “Legal experts quoted in a Wall Street Journal article noted that Clinton’s case cannot be compared to the cases of Petraeus, Deutch, or Nishimura” because she “denied knowing that any of the information at issue was secret or classified.” So does the main distinction between Hillary’s case and theirs boil down to “she didn’t know” or “she denied knowing”? But of course she knew or should have known; it’s bizarre to think she actually didn’t know merely because she said she didn’t know, and then to use that as a reason not to prosecute her.
In addition, as I’ve written before, there is simply no “similar situation” or “similar circumstance” (Comey’s phrases) to Clinton’s case. None of these previous cases involves a person in an extremely high position setting up an entire system to evade the law, a system which lasted for years, and then lying about it. What Hillary did was no accident, and no episode (like Sandy Berger’s, for example)—it was a seamless pattern purposely designed to circumvent the rules, and then much of the possible evidence was destroyed by Clinton’s lawyers. The fact that many people were involved in the wrongdoing does not absolve her, it merely raises the question of their possible complicity as well.
Hillary Clinton had a big job with big responsibilities, and she committed to what appears at the very least to have been a large, long-term, and potentially risky course of action. The unasked question (at least by the FBI) is: why did she do it? To evade FOIA laws, for example? What was her intent in designing the entire system? The FBI appears remarkably uncurious. But a lot of people smell a rat, and they don’t like it that such a person is probably going to be the next president of the United States.
Logically, and reasonably, all the intent rests on the decision to set up the unsecured server in the first place. To believe that she didn’t know there was classified or confidential material passing through that server, one has to believe that she never expected to get such material in an e-mail in the first place. Exactly how dense do you have to be to believe she could actually believe that being the Secretary of State? Of course, there is evidence that she literally told people to e-mail her classified material, but I guess it can’t be proven she actually wrote those directions.
I think all the evidence shows Comey was carrying water for Clinton. The events of the last two weeks show this- the Clinton-Lynch meeting is publicly revealed, Lynch panics and then says she will accept the recommendation of the FBI and “experienced prosecutors” leaving the implication that she is “unsure” of what that recommendation even is, then Comey steps up to microphone four days later and literally gives that recommendation while almost surely lying about how no one knew what he was going to say.
This was all coordinated from the start between Lynch and Comey. Comey had no choice but to release some of the incriminating evidence against Clinton since most of it had already leaked, and more would be leaked if they closed up the case without such a revelation. This is less damaging to Clinton than it would have been otherwise, and it serves both Lynch’s and Comey purposes by deflecting criticism of both.
Many hold the theory that Comey knew he couldn’t get the DOJ to indict, so he went over their heads by making he public statement laying out the open and shut case they actually had against Clinton, however, for this theory to be true, Comey would have left off the recommendation and left it to the AG to make- that he made it just days after Lynch claimed she would accept it tell me all I need to know.
1) Comey was appointed by Obama.
2) Comey was counsel in the Senate Whitewater investigation, and in the later investigation of the Holder-Bill Clinton pardons, esp. Marc Rich, multiply-convicted billionaire financial felon who fled the country and lived on his yacht for 10 years as a fugitive. His full pardon followed on the heels of a $600K contribution by his former wife, to the DNC, I believe.
In both cases, as Neo has pointed out, Comey found lots of wrongdoing but recommended no action or charges.
Bottom line: Comey is a Democrat first and foremost.
Obama appointed him to a ten year term in 2013. It is to be hoped (I don’t know of any relevant statute) that President Trump will can his ass.
The corruption at the highest levels of Federal government is at the very edge of causing the death of the American Republic. Is that OK with the anti-Trumpsters?
It is to be hoped (I don’t know of any relevant statute) that President Trump will can his ass.
The Last President that pissed off the FBI’s bureaucrats, was Nixon, and look what the FBI did to him.
Trump will be lucky if he gets to DC with his head still attached to his shoulders, in this day and age.
I hear the argument that Comey avoided throwing the nation into a chaotic situation by letting Clinton off the hook and, thereby, not interfering with the election. Hogwash. Had he gone ahead with the case, she probably would have fought tooth and nail to stay in the race. However, if she was forced out, Biden would have stepped in to replace her. As little as I like him, I cannot help but believe that he has far more credibility than Hillary (or Donald). This excuse for his inaction won’t pass muster.
Comey is a Democrat first and foremost.
Comey donated money to both the McCain and Romney presidential campaigns, but said at the hearing that he is no longer a registered Republican. I think that means he’s a NeverTrumper, not a Democrat.
“…In addition, as I’ve written before, there is simply no ‘similar situation’ or ‘similar circumstance’ (Comey’s phrases) to Clinton’s case…”
True. Hillary Clinton’s “situation” was that she was one of the highest executive branch officials in the country and therefore a prime espionage target. And she would have been reading or getting intel briefings on how we try exploit her counterparts’ communications and information systems (thanks, Snowden). And the “circumstance” was that she wholesale appropriated official documents, including thousands of classified documents, and mishandled them in exactly the same way we would love to exploit if it were some other country’s foreign minister.
I can think of no situation or circumstance that egregious. This is really unprecedented criminality on a vast scale. So I’m sure the FBI has never investigated anything remotely similar.
Andy McCarthy writes very persuasively that military prosecutions and military court rulings show Comey is simply lying (my word, not McCarthy’s, but I lack his professional regard for his former colleague) when he says the standard is that you have to be able to prove intent because, he says, it would be unconstitutional to prosecute mere gross negligence. And then after moving the goalposts once from the gross negligence standard, he moved them again and testified you had to prove criminal intent to harm the United States or avoid performing a legal duty.
The FBI doesn’t investigate cases, and the DoJ doesn’t prosecute cases, that remain entirely in the military justice system. But the cases often involve the same statutes, and militay courts have to follow SCOTUS precedents. In fact, if a defendant pursues all his appeals, after the case is reviewed by a service specific Criminal Court of Appeals, the US Court of Appeals for the Armed Forces, the next step is an appeal to the SCOTUS. So it isn’t as if the military justice system is entirely separate. And it isn’t as if the military justice system has some sort of special dispensation to uphold laws that violate the Constitution. But then, it’s often the same laws being enforced particularly when it involves mishandling of classified.
http://www.nationalreview.com/corner/437595/military-prosecutions-show-gross-negligence-prosecution-would-not-unfairly-single-out
But there’s one recent case that’s even more apt for comparison.
https://www.fbi.gov/newhaven/press-releases/2015/u.s.-service-member-charged-with-illegal-retention-of-photos-taken-inside-nuclear-sub-obstructing-justice
The FBI did investigate this case (along with NCIS). Comey’s FBI, and clearly they recommended prosecution. The guy took some pictures inside classified control and engineering spaces on his cell phone. And they didn’t charge him with the section of 18 U.S.C. 793 where they have to prove any sort of criminal intent. They have never hinted that this guy had criminal intent. In fact, unlike Comey who gave a lengthy dissertation on how necessary it is to prove intent, the investigators and prosecutors have when asked refused to discuss the matter of what if anything Saucier’s intent might have been. And why should they? It’s not an element of the crime that, pace Comey, “good prosecutors” charge people with all the time. As long as your name isn’t Clinton.
I think in his case, unlike Clinton’s, that it’s impossible that they could prove any sort of criminal intent because it’s possible to sanitize those very spaces and give tours to civilians with no security clearance, or take pictures. In fact the Navy publishes unclassified official photos of those same spaces all they time. It’s far more believable that a Machinist Mate wouldn’t know if what he’s looking at is classified. It’s unbelievable that someone like Clinton, who was designated by job title as an original classification authority, would fail to recognize classified material since knowing classified material when you see it and how it should be marked is the effin’ job description. So he’s just charged because he retained the information, it was classified, and he was not authorized to do so. Which, Comey says he believes is unconstitutional. If your name is Clinton.
Oh, and the obstruction charge? He tried to destroy the evidence when he found out he was under investigation. That’s how he got caught; he threw a perfectly good cell phone in a garbage dumpster and someone scavenged it. But this is no different from Hillary Clinton trying and failing to slick her hard drive.
If you’re an E-6 in the armed forces you will face felony charges for doing far less than what Clinton did. That’s what Comey’s FBI will recommend, and that’s what Obama’s DoJ will prosecute you for.
Ann, there is little difference in the election outcome of being either neverTrumper or Democrat.
Comey is on the Dark Side.
His tortured logic (see Powerline) is proof. He is pro-Clinton and pro-Comey, not pro-America or pro-law.
What I don’t understand is why Comey was as forthcoming as he was with the truth about what Clinton did when he is little but a a partisan hack. And I have no doubt that he is a partisan hack and little more.
I think Charles Krauthammer’s take has some merit to it:
Dennis,
Plausible deniability. Trying to shore up his claim of impartiality, the appearance of which is, if not of critical importance, at least politically advantageous.
Ann,
Krauthammer’s speculative explanation doesn’t hold up, when both the gravity of Hillary’s crimes and the possibility of such a criminal/traitor becoming President are considered.
It is neither Comey’s responsibility nor his place to make such a determination. It is his duty and obligation to follow the law, wherever it leads and to whomever it exposes. He betrayed his oath of office and, has enabled Hillary’s escape from consequence. And may if fact be more responsible than any other individual for enabling another traitor to steer America ever closer to the ‘iceberg’ that lies ahead.
Krauthammer’s not trying to absolve Comey of any responsibility for what he did. Rather, as he said, he’s trying to “reconcile [Comey’s] reputation for integrity with the grating illogic of his Clinton decision”.
The Sandy Berger affair was so much more complicated and suspect than the press painted it. Just unbelievable—except, sadly, I no longer believe that there is a limit to the media’s partisanship.
I read an in-depth article about the case after his plea, but I can’t find it now on the google. Berger made 4 visits to the archives, and the archivists/security personnel noticed hinky behavior on his part from the beginning. He was stretching the rules, and taking multiple bathroom breaks, and was then seen stuffing documents into his clothing. It was not possible to know what he might have taken because he was looking at folders with multiple, un-numbered and un-catalogued individual documents. AFTER he was seen doing all this and stealing papers, they set up a sting and were able to catch him red-pantsed on his 4th visit. We’ll never know what he took before they were able to catch him in the act with previously identified papers. But the story and spin went out that “all” he did was to take a few harmless pages, most of which were just multiple copies of other documents already known.
All of this is well and good, but Edward Kennedy was guilty of something between negligent homocide and manslaughter. He then went on to serve 35 glorious years in the US Senate.
Expecting anything else of this case is rather foolish. Dem politicians get away with everything unless the voters notice and cause them to lose. That’s where the internet comes in.
I guess this article is helpful from that perspective. Though I doubt anyone uninformed reads this blog.
Ann @ July 9th, 2016 at 7:46 pm,
But by trying to “reconcile [Comey’s] reputation for integrity with the grating illogic of his Clinton decision” all Krauthammer succeeds in doing is demonstrating he had no integrity to begin with.
Integrity would demand that he follow the facts, not make ridiculous rewrites of a law on the books, not make ridiculous claims about “gross negligence” laws being unconstitutional (state laws about “gross negligence” still have to comply with the Constitution, and and they do) and more importantly he should be concerned about the damage Clinton did to the security of the United States. And this wouldn’t just involve the classified emails. If you read the statute particularly paragraph (f) there’s not a word in there about classified information. And then let the chips fall where they may.
But what was Comey concerned about, according to Krauthammer? Politics. His legacy.
“…He did not want the FBI director to end up as the arbiter of the 2016 presidential election. If Clinton were not a presumptive presidential nominee but simply a retired secretary of state, he might well have made a different recommendation.
…You knock out of the race the most likely next president – and she ultimately gets acquitted! Imagine how Comey goes down in history under those circumstances.”
These are not the concerns of a man with integrity. These are the concerns of a man who sticks his finger in the air to find out which way the wind is blowing, and then bend with the prevailing breeze. Krauthammer’s attempted explanation, while not perhaps a defense, still demonstrates that Comey’s recommendation is indefensible.
And Clinton should have also been charged with anticipatory obstruction of justice, BTW.
https://www.law.cornell.edu/uscode/text/18/1519
“Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.”
Clinton knew Congress was investigating Benghazi before she left office. She definitely concealed her records by keeping them on a secret server. And she definitely destroyed documents when she deleted what she claims were personal emails, and then wiped her server, knowing that Congress had requested all Benghazi related emails. But then, we know she hadn’t handed over work related emails.
And it’s important to know that it wasn’t just the ongoing Congressional investigation she needed to contemplate. If she destroyed documents to impede any future investigation it’s a crime to conceal, destroy, etc., any records. Such as, say, this FBI investigation.
When government officials, elected or appointed, fail to conduct their actions in accordance with the oath of office; there are no ameliorating circumstances such as “didn’t want to make history”. Comey made history by his actions. He laid out the case for indictment and then invented a irrational reason to not recommend indictment, that will be his historical footnote. Same goes for Roberts turning a penalty to refuse to engage in commerce into a tax.
Pretzal logic of Hollow Men is no logic at all.
https://www.justice.gov/opa/pr/us-servicemember-admits-illegally-retaining-photos-taken-inside-nuclear-submarine-and
The DoJ and FBI are bad jokes. They’re insulting us to our faces.
“Saucier had a secret clearance and knew that the photos depicted classified material and that he was not authorized to take them. He retained these photos and failed to deliver them to any officer or employee of the United States entitled to receive it.”
Was anything marked classified? That’s Clinton’s excuse.
Clinton had a higher level clearance; TS/SCI. Also the Secretary of State is an original classification authority. Which means it was her responsibility to recognize classified information when it isn’t marked. And she knew she was not authorized to put classified information on her private, unsecure unclassified email system. Yet she retained this information and failed to deliver them to any officer or employee of the United States entitled to receive it.
Also, the email server is itself a crime.
“Kel McClanahan, another national security lawyer, said the FBI had not pursued an important line of inquiry: whether Clinton violated the law merely by setting up private servers and diverting government records. Someone who “conceals, removes, mutilates, obliterates or destroys” government records can face a fine and up to three years in prison. The Justice Department has sent defendants to prison for such a crime, McClanahan said.
“The thrust of this law is to prevent people from depriving the government of the use it gets from public records, and that is exactly what happened here,” McClanahan said.
Read more here: http://www.mcclatchydc.com/news/nation-world/national/article88042162.html#storylink=cpy”
https://www.law.cornell.edu/uscode/text/18/2071
“18 U.S. Code § 2071 – Concealment, removal, or mutilation generally
(a) Whoever willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys, or attempts to do so, or, with intent to do so takes and carries away any record, proceeding, map, book, paper, document, or other thing, filed or deposited with any clerk or officer of any court of the United States, or in any public office, or with any judicial or public officer of the United States, shall be fined under this title or imprisoned not more than three years, or both.
(b) Whoever, having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States. As used in this subsection, the term “office” does not include the office held by any person as a retired officer of the Armed Forces of the United States.”
Speaking of Krauthammer’s conjecture, here’s law prof. Richard Epstein on Comey’s motivations. (Does Prof. E. need an introduction to anyone here? Probably not. A Big Noise in Libertarian Legal circles, but not thank god one of those Beltway types. I’m a huge fan, despite that I disagree with him very, very often!)
About 15 minutes.
http://www.hoover.org/research/libertarian-hillary-clinton-and-fbi
Neo asks:
I agree with those who think she was selling information. She was using her server as a drop-box where “hackers” could snag it in exchange for contributions to the Clinton Foundation.
Sometimes, you might think of the effort you have put into getting this post together, and wonder whether it is worth the time.
It is. I’m one of the many who link back to these kind of posts, hoping to spread the word.
Was not Comey in charge of the Berger investigation?
Right you are, Stan. See: Comey has long history of cases ending favorable to Clintons. At the time, Comey was an assistant DA at the DOJ and worked on the Berger case. The incest gets even worse, though. Sandy Berger, Loretta Lynch and Cheryl Mills were were all partners in the Washington law firm Hogan & Hartson “which prepared tax returns for the Clintons and did patent work for a software firm that [later] played a role in the private email server Hillary Clinton used when she was secretary of state.”
I agree with those who think she was selling information.
Of course she was, how else was she going to finance another Presidential bid. She lost the first one, because Hussein had better Chicago machine tricks. This time, she was prepared. And Democrats love to work together, like a House of Evil. Their house is not divided. Kerry, CLinton, and Hussein were all in it, after all.
Back when Ferguson was exploding, I told people who were saying “Just Obey the police and you’ll be okay”, that the Rule of Law didn’t exist. It’s good to see that eventually people have caught up to my pov on this matter, even if they needed the Left to boot them in the head with HRC’s antics.