Comey Should Have Answered to Precedents

Applying different standards of justice to those with privileged political and social backgrounds is precisely the opposite of what the American justice system was designed to accomplish. Bob Dylan in “The Lonesome Death of Hattie Carroll” recounts the slaying of a woman by an aristocrat who subsequently gets a measly 6-month sentence in a corrupt courtroom drama.

At the end Dylan laments, “Oh, but you who philosophize disgrace and criticize all fears / Bury the rag deep in your face / For now’s the time for your tears.” Dylan hopes “that the strings in the books ain’t pulled and persuaded / And that even the nobles get properly handled / Once that the cops have chased after and caught ’em / And that ladder of law has no top and no bottom.”

The key difference in the cases is that neither had the Clinton last name … In Rickie Roller the charged individual was a Marine Corps sergeant and in Arthur Gonzales it was a lowly Air Force staff sergeant.

These words ring true years after Dylan wrote them as James Comey, the current FBI director, pulled “strings” in the “book” of the U.S. Code by recommending against prosecuting privileged Hillary Clinton for her corrupt handling of confidential emails. It was an unusual decision for many reasons, not least of which is the surprising inconsistency of his recommendation, given past precedent in similar investigations.

Overall, Comey showed himself to be nothing more than a political shill, unfamiliar with some basic precedent that goes against his recommendation.

Trying to divert from a plain text reading of the statute in the highly charged presser, Comey first cited unnamed precedents for the decision not to recommend prosecution: “In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.”

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However, that statement is simply wrong, both legally and factually, and there is precedent a reasonable prosecutor could indict someone in Clinton’s shoes using the statute at issue, 793(f) of Title 18 of the Federal Penal Code. The statute criminalizes “gross negligence” in the handling of privileged information. The text 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.”

A recent example of this statute being applied occurred in 2003. FBI Agent James Jay Smith was arrested on charges of gross negligence in the handling of classified documents. Smith was indicted under 793(f) for two alleged violations after he was found to have removed confidential information from its proper place of storage and shared it with another. The charges were eventually dropped, but the key fact is that they were brought.

These members of Congress have let a president who has largely been ineffective on jobs and national security maintain an approval rating around 50, so it shouldn’t be shocking they let Comey leave largely unscathed.

Two other cases argue that a reasonable prosecutor could have indicted Clinton: U.S. v Rickie Roller and U.S. v Arthur Gonzalez. In both cases, those charged with the care of confidential documents were indicted for mishandling due to “gross negligence.” The key difference in the cases is that neither had the Clinton last name and get-out-of-jail-free card: In Rickie Roller the charged individual was a Marine Corps sergeant and in Arthur Gonzales it was a lowly Air Force staff sergeant.

Though the facts in the above cases are different, it seems even more important to hold our highest officials to a more exacting standard and recommend prosecution to discourage future violations. Each man in the latter two cases was not only prosecuted but incarcerated for removing a very small number of documents for a short period of time.

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Clinton’s private servers containing confidential emails were clearly in harm’s way to a much greater degree and there are several indicators they may have been hacked, leading to a clear compromise of national security.

During Comey’s testimony Thursday on Capitol Hill, it also came out that Clinton gave access to classified information to people without clearances. Comey stated, “No doubt that un-cleared people had access to the server. There were others who maintained the server … who were private-sector folks.” Though Republicans questioned Comey, they still failed to get Comey to address the willful granting of access to non-cleared personal or to answer to precedents mentioned above.

These same members of Congress have let a president who has largely been ineffective on jobs and national security maintain an approval rating around 50, so it shouldn’t be shocking they let Comey leave largely unscathed. Instead, it seems that the people will have to rely on their nominee, Donald Trump, to continue to prosecute Hillary Clinton for her ineptitude and corrupt dealings in the court of public opinion. Come November, that is the only court that will matter.