Picking Up James Comey’s Pieces — What He Did, What He Should Have Done & Why
James Comey, Hillary Clinton (source)
by Gaius Publius
It's going to be a while before the jury of informed comment returns a verdict regarding James Comey's pre-emptive declaration of "no prosecution" for Hillary Clinton. But let's see what a first look gets us. I want to start with a couple of points made by Marcy Wheeler, then amplify them from other sources. The questions at issue are:
- Should James Comey have made the call not to prosecute?
- Should Clinton be prosecuted at all?
- If she should be prosecuted, why?
- If she should have been prosecuted, why wasn't she?
Comey Had No Business Making a Prosecutorial Decision
We can start with something we're sure of. From Marcy Wheeler, in a piece called "Does Jim Comey Think Thomas Drake Exhibited Disloyalty to the United States?" we find this initial point (bolding in original):
Before we get into his argument, consider a more basic point: It is not Jim Comey’s job to make prosecutorial decisions. Someone else — whichever US Attorney oversaw the prosecutors on this case, Deputy Attorney General Sally Yates, or Loretta Lynch — makes that decision. ... [H]e has no business making this decision, and even less business making it public in the way he did (the latter of which points former DOJ public affairs director Matthew Miller was bitching about).Alex Emmons, writing at The Intercept, agrees:
FBI Director Comey Preempts Justice Department By Advising No Charges for Hillary ClintonMatthew Miller, a former spokesman for the Justice Department under Eric Holder, also agrees, and is quoted by both Wheeler and Emmons. Emmons account (my emphasis):
FBI Director James Comey took the unprecedented step of publicly preempting a Justice Department prosecution when he declared at a press conference Tuesday that “no reasonable prosecutor” would bring a case against Hillary Clinton for her use of a private email server.
The FBI’s job is to investigate crimes; it is Justice Department prosecutors who are supposed to decide whether or not to move forward. But in a case that had enormous political implications, Comey decided the FBI would act on its own.
“Although the Department of Justice makes final decisions on matters like this, we are expressing to Justice our view that no charges are appropriate in this case,” he said. Prosecutors could technically still file criminal charges, but it would require them to publicly disagree with their own investigators.
Matthew Miller, who was a spokesman for the Department of Justice under Attorney General Eric Holder, called Comey’s press conference an “absolutely unprecedented, appalling, and a flagrant violation of Justice Department regulations.” He told The Intercept: “The thing that’s so damaging about this is that the Department of Justice is supposed to reach conclusions and put them in court filings. There’s a certain amount of due process there.”Which leaves us with a mystery. Why did Comey do this?
Legal experts could not recall another time that the FBI had made its recommendation so publicly.
“It’s not unusual for the FBI to take a strong positions on whether charges should be brought in a case,” said University of Texas law professor Steve Vladeck. “The unusual part is publicizing it.”
It Looks Like Comey Said "No Prosecution" So Loretta Lynch Wouldn't Have To
Wheeler thinks Comey is covering for Attorney General Loretta Lynch, his boss, whose reputation for impartiality was damaged by her recent tarmac meeting with Bill Clinton. Wheeler writes, "By overstepping the proper role of the FBI here, Comey surely gave Lynch cover — now she can back his decision without looking like Bill Clinton convinced her to do so on the tarmac."
Emmons largely agrees:
Given the extraordinary circumstances, Vladeck called it “both unusual and completely unsurprising that Comey went out of his way to make this statement.”You read that right: "unusual and completely unsurprising." For Emmons and Vladeck it appears to be a case of insiders going out of their way, far out of their way in fact, to cover for insiders. Given how unprecedented Comey's speech was, I think we have to accept this hypothesis until others weigh in with more likely alternatives. This seems perfectly plausible to me. I can think of another motives for Comey's actions, but they don't exclude this one.
He added: “It’s certainly preemptive on Comey’s part.”
Attorney General Loretta Lynch was widely criticized for meeting with former President Bill Clinton last week while his wife was still under investigation
Should Clinton Be Prosecuted Despite Loretta Lynch's Refusal to Do So?
So far, we've been able to answer the first question, should Comey have made the call not to prosecute? The answer is clearly no. But that only gets us started. As to the prosecution itself — should she be prosecuted and why? — we're in more complicated territory, which I hope to make clear.
(Note, by the way, that in my heading just above, I'm transferring responsibility for the refusal to prosecute from Comey back to the Justice Department, where it belongs. I suggest in thinking about this that you do the same. Comey notwithstanding, it's Lynch who has the authority, and Lynch who is refusing to prosecute.)
About prosecution, there are many laws that Clinton appears to have broken. In fact, there may develop a minor cottage industry that lists them. Comey himself identified some transgressions during his post-announcement speech (my emphasis below):
[S]even e-mail chains concern matters that were classified at the Top Secret/Special Access Program level when they were sent and received. These chains involved Secretary Clinton both sending e-mails about those matters and receiving e-mails from others about the same matters. There is evidence to support a conclusion that any reasonable person in Secretary Clinton's position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation.Note that this confirms, by the way, the fact that Special Access Program (SAP) information — one of the highest, most sensitive levels of secret the government possesses — was indeed housed on the server. Brian Pagliano, in doing any number of maintenance chores at the Clinton IT home-headquarters, could have read it, as could anyone helping him. Risking SAP information will be a tripwire for many in the intelligence community, who are likely to regard its mishandling as unforgivable. This is one of those areas where we'll know more over time as specialists weigh in. (The political response of the intel community, if any, could also be interesting, in a "drama of retaliation" way. This may not occur, but it's one of the possibilities.)
Next Comey adds:
In addition to this highly sensitive information, we also found information that was properly classified as Secret by the U.S. Intelligence Community at the time it was discussed on e-mail (that is, excluding the later "up-classified" e-mails). None of these e-mails should have been on any kind of unclassified system, but their presence is especially concerning because all of these e-mails were housed on unclassified personal servers not even supported by full-time security staff, like those found at Departments and Agencies of the U.S. Government—or even with a commercial service like Gmail.In other words, despite Ms. Clinton's allegations that nothing she sent or received was "marked classified at the time" — her statements were incorrect. (Note that the extent of this violation is in doubt, however; i.e., the exact number of these "properly classified" emails and their contents was not revealed. Below, as you'll read, Comey admits that the number of these emails is "very small." Wikileaks disagrees.)
Separately, it is important to say something about the marking of classified information. Only a very small number of the e-mails containing classified information bore markings indicating the presence of classified information. But even if information is not marked "classified" in an e-mail, participants who know or should know that the subject matter is classified are still obligated to protect it.The last is important. Some material is "born classified," a phrase you've likely encountered if you've been following this story. If an admiral in World War II, for example, doodles a possible plan of attack against an enemy fleet, that doodle contains classified information, whether marked as such or not. And more, the duty to guard this information goes beyond not divulging it. It must be carefully protected in a non-negligent way.
Hillary Clinton and the Espionage Act
So should Clinton have been prosecuted? The duty to protect important government information is codified, among other places, in the Espionage Act, Title 18 of the criminal code, Sections 792 and following. I earlier wrote about Clinton's vulnerability to this act, specifically Title 18, Section 793, here: "Three Data Points Regarding Clinton's Email Server and the Law". There I made two points: first, that the information covered by the act doesn't require a formal "classified" designation to be relevant; and second, that "intent" (meaning intent to disclose) is not necessary to trigger the law's penalties. "Gross negligence" in handling the information is sufficient to trigger prosecution. Part of this section reads:
(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—To get the gist of this language as it applies to Clinton, just read the part bolded above. Cut down, it says:
Shall be fined under this title or imprisoned not more than ten years, or both.
Whoever, being entrusted with or having lawful possession or control of any document ... relating to the national defense ... or having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen ... shall be fined under this title or imprisoned not more than ten years, or both.
If your consideration is whether Clinton violated the letter of the law, that's pretty straight-forward. Storing the information listed by Comey in his non-indictment indictment of Clinton on her unsecured server (and sent, for a time, by unencrypted transmission) puts Clinton at clear risk of prosecution for violating the Espionage Act. And again, the bar isn't "intent" to risk or violate national security information. The bar is "gross negligence" in its handling, a phrase that's almost a dictionary synonym for what Comey meant when he accused Clinton and her colleagues of being "extremely careless in their handling of very sensitive, highly classified information."
Thus she's very likely vulnerable under the letter of the law. Yet unlike others she will not be tried (a word that means "tested"), much less punished, for violating it. Her lack of prosecution, when others have been vigorously pursued in court for similar acts or less, explains much of what exercises her critics. To understand their frustration and anger, let's look at those who have been prosecuted under the Act for negligence or worse. Then let's look at the critical element that separates their situations from Clinton's. (It's not just her elevated status.)
The Espionage Act Under Obama
It turns out that the Espionage Act has become a popular tool of punishment under the Obama administration, which has broadened its application from use against actual espionage to use against unfriendly leakers and whistle-blowers:
Under the Obama administration, seven Espionage Act prosecutions have been related not to traditional espionage but to either withholding information or communicating with members of the media. Out of a total eleven prosecutions under the Espionage Act against government officials accused of providing classified information to the media, seven have occurred since Obama took office. "Leaks related to national security can put people at risk," the President said at a news conference in 2013. "They can put men and women in uniform that I've sent into the battlefield at risk. I don't think the American people would expect me, as commander in chief, not to be concerned about information that might compromise their missions or might get them killed."As Glenn Greenwald (among many others) has recently noted:
Secrecy is a virtual religion in Washington. Those who violate its dogma have been punished in the harshest and most excessive manner – at least when they possess little political power or influence. As has been widely noted, the Obama administration has prosecuted more leakers under the 1917 Espionage Act than all prior administrations combined. Secrecy in DC is so revered that even the most banal documents are reflexively marked classified, making their disclosure or mishandling a felony. As former CIA and NSA Director Michael Hayden said in 2010, “Everything’s secret. I mean, I got an email saying ‘Merry Christmas.’ It carried a top secret NSA classification marking.”Even when no leakage or other damage was contemplated or occurred, the Espionage Act was applied against violators. Here's what happened to Naval Reserve Engineer Brian Nishimura (link via Greenwald above):
People who leak to media outlets for the selfless purpose of informing the public – Daniel Ellsberg, Tom Drake, Chelsea Manning, Edward Snowden – face decades in prison. Those who leak for more ignoble and self-serving ends – such as enabling hagiography (Leon Panetta, David Petreaus) or ingratiating oneself to one’s mistress (Petraeus) – face career destruction, though they are usually spared if they are sufficiently Important-in-DC. For low-level, powerless Nobodies-in-DC, even the mere mishandling of classified information – without any intent to leak but merely to, say, work from home – has resulted in criminal prosecution, career destruction and the permanent loss of security clearance.
A Naval reservist was sentenced for mishandling classified military materials.How was his case handled? He was obviously prosecuted, as the lead paragraph tells us. Then:
A federal attorney announced Wednesday that Bryan Nishimura of Folsom, California, pleaded guilty to the unauthorized removal and retention of classified materials.
Nishimura, deployed in Afghanistan in 2007 and 2008 as a regional engineer, admitted to downloading classified briefings and digital records onto his personal electronic devices. He carried the materials off base and brought them back to the U.S. when his deployment ended.
An FBI search of Nishimura's home turned up classified materials, but did not reveal evidence he intended to distribute them.
He was sentenced to two years of probation and a $7,500 fine, and was ordered to surrender his security clearance. He is barred from seeking a future security clearance.This is a Navy engineer who took home downloaded briefings and records. We're not told under what act he was prosecuted, but we don't need to be told, just that doing what he did was a crime. The Espionage Act is perfectly suited to that crime, if the prosecutors wished to use it.
Here's a bit from the FBI's description of Nishimura's case:
According to court documents, Nishimura was a Naval reservist deployed in Afghanistan in 2007 and 2008. In his role as a Regional Engineer for the U.S. military in Afghanistan, Nishimura had access to classified briefings and digital records that could only be retained and viewed on authorized government computers. Nishimura, however, caused the materials to be downloaded and stored on his personal, unclassified electronic devices and storage media. ... In the United States, Nishimura continued to maintain the information on unclassified systems in unauthorized locations, and copied the materials onto at least one additional unauthorized and unclassified systemSounds like what Clinton did to a T. Should she be prosecuted? Loretta Lynch, speaking through James Comey, doesn't think so. To understand why not, let's look at three more notorious and more vigorously prosecuted cases: Jeffrey Sterling, Thomas Drake and Chelsea Manning. Those cases not only reveal why Clinton, in the eyes of many, should be prosecuted; they reveal why she wasn't.
Jeffrey Sterling, Thomas Drake and Chelsea Manning
This gets to the heart of the problem related to when and why to prosecute. There's first a question of what should happen and what does happen. Then there's a question of intent, as in, what intent if any is the target of the law, and what intent is the target of prosecutors who apply the law. These are not the same.
Greenwald doesn't think Clinton should be prosecuted, since in isolation her crime, as he sees it, doesn't merit it. What Clinton did was attempt to shield all of her communications to the extent she could, an act that in his mind doesn't deserve jail time, despite the letter of the law. I would add that we're talking about applying the Espionage Act after all, and Clinton in no way committed or intended to commit espionage.
But that kind of sensible thinking isn't what does happen. What does happen is that under Obama, certain people are prosecuted and sentenced very harshly. Greenwald again (bolded emphasis mine):
But this case does not exist in isolation. It exists in a political climate where secrecy is regarded as the highest end, where people have their lives destroyed for the most trivial – or, worse, the most well-intentioned – violations of secrecy laws, even in the absence of any evidence of harm or malignant intent. And these are injustices that Hillary Clinton and most of her stalwart Democratic followers have never once opposed – but rather enthusiastically cheered. In 2011, Army Private Chelsea Manning was charged with multiple felonies and faced decades in prison for leaking documents that she firmly believed the public had the right to see; unlike the documents Clinton recklessly mishandled, none of those was Top Secret. Nonetheless, this is what then-Secretary Clinton said in justifying her prosecution...Clinton's justification for Manning's prosecution is this (emphasis Greenwald's):
"I think that in an age where so much information is flying through cyberspace, we all have to be aware of the fact that some information which is sensitive, which does affect the security of individuals and relationships, deserves to be protected and we will continue to take necessary steps to do so."Seems damning in retrospect, especially the emphasized portion. For Clinton, "necessary steps" to protect "sensitive" information that's "flying through cyberspace" means the following:
In 2010, Chelsea (formerly Bradley) Manning, the United States Army Private First Class accused of the largest leak of state secrets in U.S. history, was charged under Article 134 of the Uniform Code of Military Justice, which incorporates parts of the Espionage Act . At the time, critics worried that the broad language of the Act could make news organizations, and anyone who reported, printed or disseminated information from WikiLeaks, subject to prosecution, although former prosecutors pushed back, citing Supreme Court precedent expanding First Amendment protections. On July 30, 2013, following a judge-only trial by court-martial lasting eight weeks, Army judge Colonel Denise Lind convicted Manning on six counts of violating the Espionage Act, among other infractions.And the punishment was this:
Manning was sentenced in August 2013 to 35 years' imprisonment, with the possibility of parole in the eighth year, and to be dishonorably discharged from the Army.That harsh punishment doesn't count the torture she endured while in pre-trial detention. The fate that befell Chelsea Manning was (and is) draconian. Again, in retrospect Clinton's words at the time are damning.
Let's look at two more cases, starting with Jeffrey Sterling. As you read, see if you can see the thread that ties these three cases together:
Jeffrey Alexander Sterling, a former CIA agent was indicted under the [Espionage] Act in January 2011 for alleged unauthorized disclosure of national defense information to James Risen, a New York Times reporter, in 2003 regarding his book State of War. The indictment described his motive as revenge for the CIA's refusal to allow him to publish his memoirs and its refusal to settle his racial discrimination lawsuit against the Agency. Others have described him as telling Risen about a backfired CIA plot against Iran in the 1990s.But the evidence of wrong-doing was almost non-existent, flimsily circumstantial, and the conviction relied heavily on the jury's reaction to the government's presentation of motive.
The government’s case consisted mostly of records of emails and phone calls between Sterling and Risen that began in 2001 and continued into 2005. The emails were very short, just a line or so, and did not reference any CIA programs. The phone calls were mostly short too, some just a few seconds, and the government did not introduce recordings or transcripts of any of them.Nevertheless, despite this lack of real evidence:
Sterling was represented by two lawyers, Edward MacMahon Jr. and Barry Pollack. In his opening statement, MacMahon pointed to the lack of hard evidence against his client.
“Mr. Trump is a fine lawyer,” MacMahon said. “If he had an email with details of these programs or a phone call, you would have heard it, and you’re not going to hear it in this case .… Mr. Trump told you that [Sterling] spoke to Risen. Did you hear where, when, or anything about what happened? No. That’s because there isn’t any such evidence of it whatsoever .… You don’t see a written communication to Mr. Risen from Mr. Sterling about the program at all, no evidence they even met in person.”
[T]he jury convicted Sterling, based on what the judge, Leonie Brinkema, described at the sentencing as “very powerful circumstantial evidence.” She added, “In a perfect world, you’d only have direct evidence, but many times that’s not the case in a criminal case.” ...We still don't know for sure that Sterling was the person who leaked information to reporter James Risen. Nothing showing that they worked together was presented in court. Nothing. Yet the prosecutor did a good job of painting Sterling as "a traitor" motivated by "anger, bitterness, selfishness," adding, "The defendant struck back at the CIA because he thought he had been treated unfairly. He had sued the agency for discrimination and demanded that they pay him $200,000 to settle his claim. When the agency refused, he struck back with the only weapon he had: secrets, the agency’s secrets."
A few minutes before three in the afternoon, Judge Brinkema said that Sterling would go to prison for three and a half years. This was far below the sentencing guidelines — and was seen as a rebuke of the prosecution’s portrayal of Sterling as a traitor who had to be locked away for a long time. But that wasn’t much comfort for Sterling or his wife, because he would nonetheless be locked away. After the hearing ended, Sterling walked to the front row of seats to console his sobbing wife. You could hear her wails in the courtroom.
His lawyers requested that he be allowed to serve his sentence in his home state of Missouri, so that his wife and other family members could easily visit him. Earlier this week, Sterling reported to the prison that was selected for him. It is in Colorado.
On that basis and almost no evidence, the jury convicted.
Finally, in the case of Thomas Drake, mentioned above by both Wheeler and Greenwald, this happened:
In April 2010, Thomas Andrews Drake, an official with the National Security Agency (NSA), was indicted under for alleged willful retention of national defense information. The case arose from investigations into his communications with Siobhan Gorman of the Baltimore Sun and Diane Roark of the House Intelligence Committee as part of his attempt to blow the whistle on several issues including the NSA's Trailblazer project. Considering the prosecution of Drake, investigative journalist Jane Mayer wrote that "Because reporters often retain unauthorized defense documents, Drake's conviction would establish a legal precedent making it possible to prosecute journalists as spies."What sets Drake, Sterling and Manning apart from Clinton in the way their violations of the Espionage Act are treated? It's not just her elite status.
Why Is Clinton's Case Different?
Clinton may well have been let off because the Justice Department thought prosecution was just the wrong thing to do. Given all the arcane rules of classification, and the fact that Clinton, put plainly, is not a spy, Comey and Lynch may well have decided that prosecution was pointless. Espionage, after all, was never her intent, and getting Hillary Clinton convicted on espionage charges may have looked to them like a very heavy lift. Yet espionage was never the intent of Sterling, Drake or Manning, yet they had the proverbial book thrown at them, and more. (Read the rest of the article on Sterling to see how his prosecution nearly destroyed his life, literally.)
The government's behavior in these four cases isn't clarified when comparing motives, at least not initially. It could be argued that the motives of Sterling, Drake and Manning were entirely beneficial, since whistle-blowers intend to perform a societal good, whereas Clinton's motives were more self-centered, less morally defensible, and possibly illegal — at the very least, she was attempting to move all of her communication beyond the reach of FOIA records requests. (We'll have to wait to see if she may have had other motives, such as shielding the Clinton Foundation from embarrassing scrutiny, or worse. I keep seeing mention of a separate investigation into that.)
Which brings us to the the matter of intent — not the intent contemplated by the law (intent to steal or to otherwise mishandle government secrets), but the intent contemplated by the prosecutors in applying the law. Look again at the Sterling conviction and what the prosecution relied on to get it. The man was painted by his prosecutors as, in effect, evil — a man whose goal was to harm the government, a betrayer, a traitor, motivated by anger, bitterness, selfishness, a man taking revenge. Though most stark in Sterling's prosecution (and in Manning's torture), you see this thread in all three whistle-blower cases.
What separates these cases from Clinton's is the desire of the government to punish "evil deeds," attempts to harm the country as the prosecutors defined harm, then secondarily to use the Espionage Act as a tool of that punishment, wielded in such a heavy way as to frighten others. Note that this initial filter — looking for who has done the kind of harm deserving of punishment, as opposed to looking for who violated the law — precedes the prosecution itself. What doesn't precede the prosecution — certainly not in Clinton's case — is an even-handed application of the law.
Yes, this is selective prosecution, but it's much more than elites protecting elites, though it's that as well. It's also and primarily using the prosecutorial weight of the established state to mercilessly crush the perceived enemies of that state, while protecting its friends from that weight should they also stray under the law's dark umbrella.
In other words, the key to determining who will be prosecuted is indeed intent, but not intent to violate the law. What's being prosecuted is intent to violate the state as the state perceives it.
So we return where we started, to Marcy Wheeler, who calls the real crime of Sterling and Drake "disloyalty" and not a violation of the Espionage Act itself. Wheeler (my emphasis):
I can only imagine Comey came to his improper public prosecutorial opinion via one of two mental tricks. Either he — again, not the prosecutor — decided the only crime at issue was mishandling classified information (elsewhere in his statement he describes having no evidence that thousands of work emails were withheld from DOJ with ill intent, which dismisses another possible crime), and from there he decided either that it’d be a lot harder to prosecute Hillary Clinton (or David Petraeus) than it would be someone DOJ spent years maligning like Sterling or Drake. Or maybe he decided that there are no indications that Hillary is disloyal to the US.This entirely ignores the political dimension, which I'll take up at another time. But it perfectly characterizes, as I see it, the legal one.
Understand, though: with Sterling and Drake, DOJ decided they were disloyal to the US, and then used their alleged mishandling of classified information as proof that they were disloyal to the US (Drake ultimately plead to Exceeding Authorized Use of a Computer).
Ultimately, it involves arbitrary decisions about who is disloyal to the US, and from that a determination that the crime of mishandling classified information occurred.
Too Big to Jail, Too Innocent to Flail, or Both
Should Clinton have been prosecuted at all? It depends on whether you wish to apply the law (many do), to apply what others consider common sense, or to rebalance the scale of unequal prosecution. And if the latter, rebalance in which direction? Should Clinton go to jail, or should Manning, among others, go free? I would personally be fine if Clinton never saw a courtroom and prisoners like Manning were freed. For the overall good of the nation, I would take that trade. Others, I'm sure, would choose differently.
Returning to why Clinton wasn't prosecuted — was it just that Clinton is too important, too protected, to prosecute? "Too big to jail" in other words? Too high to be brought down by something as low as the law? After all, starting with Nixon, the circle of those who can never be punished for their crimes has grown constantly more inclusive. (I almost wrote "for their non-violent crimes," but then I remembered the torturing George W. Bush.) That's certainly a possible explanation, even a likely one, given our recent failure to prosecute even a straight-up thief like former Goldman Sachs chief, ex-governor and Democratic Party fundraiser Jon Corzine.
But we live in a punishing, prosecutorial state as well, one that treats its enemies as harshly as it treats its friends gently, especially its inner circle friends. It's this second aspect, not just who is too big to jail, but who is too high-minded and innocent to torture and flail — too "loyal" to be treated, in other words, like Sterling and Manning — that must be considered before we can understand the unequal application of these laws. Clinton, for all her faults in James Comey's eyes, was no Chelsea Manning.
As Wheeler says in her closing, this is "another way of saying our classification system is largely a way to arbitrarily label people you dislike disloyal." On reflection, it's hard to disagree.