The Comey Conundrum
When FBI Director James Comey announced that he would NOT recommend prosecution of former Secretary of State Hillary Clinton for violation of the Espionage Act (Title 18, United States Code, Section 793), he made a decision based upon political considerations, and NOT based upon principles of criminal law or justice.
Subsection (f) of the statute reads:
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—
Shall be fined under this title or imprisoned not more than ten years, or both.
There are five key points to be made in analyzing the Director’s very flawed decision:
(1) Mr. Comey essentially wrote subsection (f) OUT of the applicable statute in the Clinton email investigation.The Director’s explanation that he had worked all his life to “decriminalize negligence” and thereby would not recommend prosecution was nothing short of ridiculous. It should be first noted that Mr. Comey offered no such examples of his “life’s work,” and it is doubtful that there are any. There has always been prosecution of criminal negligence at every level of our legal system, and with good reason. Negligent homicide by reckless driving is one common example that should come readily to mind. Starting a fire in a fireworks stand, resulting in an explosion and death of a customer or employee, would be another. Intent to kill is not required for conviction in either case for obvious reasons. The negligent actions taken are so inherently reckless as to endanger human life, and are therefore included in virtually every state and federal criminal code as punishable offenses. It must also be noted that Mrs. Clinton’s unguarded emails may have similarly resulted in at least one death—that of an Iranian scientist who was executed by Iran as a spy after his name surfaced in one of the emails on Clinton’s unprotected private server.
(2) While he may have exercised prosecutorial ‘discretion’ in some of his prior posts as an Assistant United States Attorney or Deputy Attorney General, Mr. Comey was not a prosecutor at the time of the email scandal investigation. He was and remains the nation’s chief investigator, sworn to uphold the laws of the country as written by Congress, and he was neither sworn nor entitled to re-write those statutes to his own satisfaction. While there are undoubtedly some examples of investigative discretion in our system, most are relegated to petty offenses, such as warning tickets for minor speeding violations. At the offense level where Mrs. Clinton’s offenses are found, such decisions are reserved to a prosecuting authority; they are NOT left to investigators.
(3) When Mr. Comey took the unprecedented step of revealing the conclusions of his investigation prior to submitting those findings to the Department of Justice, and of delivering an excoriation of Mrs. Clinton’s negligence to the public, he characterized her actions as “extremely careless,” words used in trial jury instructions to explain the very meaning of the phrase “gross negligence” used in the statute. He thereby confirmed that his investigation had revealed proof of guilt, but chose to issue a pardon instead (another action he had no authority to take.)
(4) In defending his action, Mr. Comey fell back on a bad habit of his, one for which he has actually been congratulated in the past. While acting as Deputy Attorney General, when he didn’t like a memo he received supporting parts of a terrorist surveillance program, he referred to it dismissively as “fatally flawed,” and said, “No lawyer reading that could reasonably rely on it.” When another seasoned attorney replied that he had relied on the memo, Comey’s response was, “No good lawyer,” a remark which earned him praise from those opposing the program under scrutiny. Similarly, when Comey presented his findings in the Clinton investigation, he preemptively declared that “no reasonable prosecutor” would indict on such evidence, a claim subsequently challenged by those as credentialed as Rudy Giuliani, and Joseph diGenova, former United States Attorneys for, respectively, the Southern District of New York and Washington, D.C. In both instances, Comey put NOTHING on the table to substantively defend his decisions. He resorted instead to insulting, ad hominem attacks on anyone who would dare to disagree with his imperial decisions—decisions that could NOT, after thorough review, be defended in any other fashion.
(5) Some have theorized that this was a conscious decision by Comey to take no action because he believed that the decision to be made—in essence, to disqualify Mrs. Clinton from the presidency—was one properly reserved for the voters. In so deciding (if, in fact, such was his decision), his action was much more in line with the hand-washing of Pontius Pilate than with the wisdom of Solomon. The Constitution’s system of checks and balances inherently recognizes that there are times when voters, being human, will make mistakes, and elect public officers who—also being human—will violate the laws of the nation or the Constitution itself. Here, Comey was not even dealing with an elected official, just one on her way to a nomination. If our system falters or ultimately collapses, those such as Mr. Comey (and, arguably, Chief Justice Roberts in the Obamacare decision) who are charged with providing the checks and balances contemplated by the Constitution—but who could not find the courage to apply them—will have to answer to history.
Subsection (f) of the statute reads:
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—
Shall be fined under this title or imprisoned not more than ten years, or both.
There are five key points to be made in analyzing the Director’s very flawed decision:
(1) Mr. Comey essentially wrote subsection (f) OUT of the applicable statute in the Clinton email investigation.The Director’s explanation that he had worked all his life to “decriminalize negligence” and thereby would not recommend prosecution was nothing short of ridiculous. It should be first noted that Mr. Comey offered no such examples of his “life’s work,” and it is doubtful that there are any. There has always been prosecution of criminal negligence at every level of our legal system, and with good reason. Negligent homicide by reckless driving is one common example that should come readily to mind. Starting a fire in a fireworks stand, resulting in an explosion and death of a customer or employee, would be another. Intent to kill is not required for conviction in either case for obvious reasons. The negligent actions taken are so inherently reckless as to endanger human life, and are therefore included in virtually every state and federal criminal code as punishable offenses. It must also be noted that Mrs. Clinton’s unguarded emails may have similarly resulted in at least one death—that of an Iranian scientist who was executed by Iran as a spy after his name surfaced in one of the emails on Clinton’s unprotected private server.
(2) While he may have exercised prosecutorial ‘discretion’ in some of his prior posts as an Assistant United States Attorney or Deputy Attorney General, Mr. Comey was not a prosecutor at the time of the email scandal investigation. He was and remains the nation’s chief investigator, sworn to uphold the laws of the country as written by Congress, and he was neither sworn nor entitled to re-write those statutes to his own satisfaction. While there are undoubtedly some examples of investigative discretion in our system, most are relegated to petty offenses, such as warning tickets for minor speeding violations. At the offense level where Mrs. Clinton’s offenses are found, such decisions are reserved to a prosecuting authority; they are NOT left to investigators.
(3) When Mr. Comey took the unprecedented step of revealing the conclusions of his investigation prior to submitting those findings to the Department of Justice, and of delivering an excoriation of Mrs. Clinton’s negligence to the public, he characterized her actions as “extremely careless,” words used in trial jury instructions to explain the very meaning of the phrase “gross negligence” used in the statute. He thereby confirmed that his investigation had revealed proof of guilt, but chose to issue a pardon instead (another action he had no authority to take.)
(4) In defending his action, Mr. Comey fell back on a bad habit of his, one for which he has actually been congratulated in the past. While acting as Deputy Attorney General, when he didn’t like a memo he received supporting parts of a terrorist surveillance program, he referred to it dismissively as “fatally flawed,” and said, “No lawyer reading that could reasonably rely on it.” When another seasoned attorney replied that he had relied on the memo, Comey’s response was, “No good lawyer,” a remark which earned him praise from those opposing the program under scrutiny. Similarly, when Comey presented his findings in the Clinton investigation, he preemptively declared that “no reasonable prosecutor” would indict on such evidence, a claim subsequently challenged by those as credentialed as Rudy Giuliani, and Joseph diGenova, former United States Attorneys for, respectively, the Southern District of New York and Washington, D.C. In both instances, Comey put NOTHING on the table to substantively defend his decisions. He resorted instead to insulting, ad hominem attacks on anyone who would dare to disagree with his imperial decisions—decisions that could NOT, after thorough review, be defended in any other fashion.
(5) Some have theorized that this was a conscious decision by Comey to take no action because he believed that the decision to be made—in essence, to disqualify Mrs. Clinton from the presidency—was one properly reserved for the voters. In so deciding (if, in fact, such was his decision), his action was much more in line with the hand-washing of Pontius Pilate than with the wisdom of Solomon. The Constitution’s system of checks and balances inherently recognizes that there are times when voters, being human, will make mistakes, and elect public officers who—also being human—will violate the laws of the nation or the Constitution itself. Here, Comey was not even dealing with an elected official, just one on her way to a nomination. If our system falters or ultimately collapses, those such as Mr. Comey (and, arguably, Chief Justice Roberts in the Obamacare decision) who are charged with providing the checks and balances contemplated by the Constitution—but who could not find the courage to apply them—will have to answer to history.
Published on September 15, 2016 13:33
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