In Thursday’s “emergency” congressional oversight hearings, FBI Director James B. Comey was questioned about his Tuesday, June 5, Statement reporting the Bureau’s conclusions from its long-pending investigation of Hillary Clinton’s “Use of a Personal E-Mail System.” Trey Gowdy, (R- SC), a former federal prosecutor, walked Comey through the lies that Clinton told his Benghazi Committee in October, which evoked an on-the-record sworn FBI endorsement of several counts of a potential criminal indictment. One wonders if the FBI will investigate whether Clinton intentionally lied to Congress at the same speed and level of competence that even non-lawyers on the oversight committee were able to effectively criticize about the FBI’s first limited investigation of the subject.
After virtually framing the indictment of Clinton for lying to Congress, Gowdy then delivered a Socratic lesson to Comey on the subject of how such ”false exculpatory statements” by Clinton, along with Clinton’s pervasive and “complex scheme that was designed for the very purpose of concealing the public record” could have been used to prove her requisite criminal intent for the secret server case.
Gowdy completed his attack on Comey’s central evasion for not indicting Clinton by instructing him that intent is rarely proven by direct evidence, as Comey’s Statement seemed to suggest. “You have to do it with circumstantial evidence,” he said, such as that which Gowdy had outlined in less than five minutes for Comey, but which somehow the FBI was incapable to piece together over many months.This initial examination of Comey by Gowdy and other Republican committee members supports the suggestion that Comey’s formal statement denying Clinton’s criminal intent, quoted below, constitutes one of a series of “coincidental shams and deceptions deeply rooted in a corrupt political system.” This sham includes the extended delay and timing of what appears to have been a superficial and artificially limited investigation, the unethical ex parte meeting between Comey’s boss and Bill Clinton at the Phoenix airport, Obama’s endorsement and North Carolina campaign stop with Clinton timed to deflect attention from the FBI’s criticism of her lies and “extreme carelessness,” and then the very nature of the Statement itself, both the PR exercise of its being made public and the FBI’s straying beyond its proper duties and expertise.
Technical Fix of a Political Problem
The FBI does not prosecute, does not evaluate or fire prosecutors. It investigates. It is not its job to tell prosecutors how to do theirs, but rather to provide the investigation needed for prosecutors to make legal decisions based on reliable and thorough facts. Jason Chaffetz (R- UT) called out (3:34) how unprecedented it was for Comey to go public with such a statement, and then also to do so about more than just the facts but also to pre-judge the legal questions involved in a possible prosecution. A formal FBI opinion that what was otherwise a crime should not be prosecuted because of insufficient intent, was not only based on a failure to marshall available evidence, as Gowdy instructed, and a misinterpretation of well-settled law, as discussed below. It could also have prejudiced any future prosecution the DoJ might decide to undertake.
As one former DoJ official judged, Comey’s performance was “a gross abuse of his own power,” in part because he “substituted his judgment for that of prosecutors.” As J. Edgar Hoover decreed the rule: “We are a fact gathering organization only. We don’t clear anybody.” Sixty years later Comey has now added his own corollary, “except a Clinton.”
This unprecedented FBI polemic violated the general rule that one does not ever speak publicly about pending litigation because it can distort due process. It was dramatically improper. It is one reason why Comey should be fired. His errors in statement the law provide others.
This impropriety of the investigator acting as prosecutor, judge and jury arose out of the context where Comey’s boss had said she would abdicate to the FBI her duties to make the legal and political decision on the Clinton case, rather than simply recuse herself for her ethical lapse in holding an ex parte meeting with a target of the investigation. By making the legal decision himself rather than properly leaving it to DoJ lawyers, Comey clearly did a political favor not only for Loretta Lynch but also for Barack Obama, who has a flair for prejudging pending cases. They otherwise would have had to take political responsibility for an unpopular and controversial partisan political decision to effectively pardon one’s endorsed successor with the agreement of the other’s possible future employer. These are two reasons Lynch should be fired.
Comey’s highly improper recitation of facts sufficient to indict, while denying Clinton the opportunity to controvert those facts in Court for his own reasons, was undoubtedly the price Comey had to pay to prevent mutiny from professionals inside his Bureau. They take institutional responsibility solely for delivering the facts, but not for Comey’s personal venture into presidential politics nor for his idiosyncratic conclusions of law.
Evidence of Intent: Looking in all the wrong places
Comey was able to make a political decision appear to be a technical decision, based on his peculiar views of the evidence necessary to prove intent. But as Gowdy has just begun to instruct Comey, this technical decision about intent failed to take proper account of the inferences to be drawn from the evidence that does show Clinton’s intent to break the law. For example, Clinton clearly intended to give classified information to her lawyers who did not have security clearances, as well as allowing her uncleared tech support to have access. Comey had no good answer for these facts.
Among the many lapses of judgment that Comey defended he did not think it germane to an assessment of her intent that Clinton refused to be interviewed by the DoS inspector general. Comey’s refusal to comment on the existence of a Clinton Foundation investigation suggests that, contrary to speculation, it was not part of the secret server investigation. But that would overlook a potential motive for Clinton’s prioritizing the secrecy of her private affairs over the nation’s secrets that would have been far more nefarious than the motives that Comey does approve for prosecution, such as whistleblowing.
After reciting facts that have long been known to the public, and that contradicted lies told by Clinton, the FBI’s operative finding delivered by Comey was that “we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information.” In the oversight hearing Comey did not demonstrate a full grasp of facts, such as who paid for Clinton’s server. So his formula that he did not “find clear evidence” was less than convincing that he would have found it had he looked.
Comey’s finding was not that Clinton’s conduct did not violate the law, but that whoops, sorry, didn’t mean to, won’t do it again, and Voila! No intent; no crime. As Gowdy’s questioning suggested, if the term “clear” as used by Comey to describe the quality of evidence of intent that he was looking for actually means “direct,” that never happens in the real world. The evidence of intent is always inferential, circumstantial, and indirect, not “clear” in a possible colloquial use of that term that Comey seemed to intend. The only time that intent evidence would be “clear” and direct is if there were a confession by a criminal.
Since “clear evidence” is not a legal term, the country is left to guess what Comey’s subjective meaning for the term is. The impression left by Comey, which Gowdy forcefully challenged, was that indirect and inferential evidence was not considered by Comey to be “clear” evidence, and therefore Clinton could only be indicted if she confessed. Since Comey was apparently not looking for it, the inferential and circumstantial kind of evidence that Gowdy recited, and which is commonly sufficient to convict of the intent element of all ordinary crimes, was not found under Comey’s leadership.
Comey’s “Reasonable Prosecutor”
Comey’s ambiguous finding about intent was offered to support his “judgment … that no reasonable prosecutor would bring … a case” for Clinton’s “potential violations of the statutes regarding the handling of classified information.” This judgment went beyond Comey’s position as FBI director to give/ The FBI does not prosecute. It investigates. Comey goes even further beyond the scope of his authority in explaining: “Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past. 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.”
Again, Comey probably did not “see those things” because he did not look. Clinton’s server involved “vast quantities of materials exposed in such a way as to support an inference of intentional misconduct.” It was not just a mistaken channeling of a couple emails through her separate personal email. It was systemic and vast, and therefore almost certain to expose national secrets. She deliberately commingled personal and public, permitting her to later delete public communications under the unverifiable, and apparently inaccurate, excuse that she only deleted personal.
A fiduciary who commingles financial assets is guilty of crime. Clinton commingled real assets, national secrets owned by the public, with her private information, and put them both in her private storage.
What would be enough intent for a “reasonable prosecutor” to pursue a conviction for this violation is again left to Comey’s own subjective standard. An objective standard would be met by restraining the FBI Director within the proper scope of his duties, appointing a professional unbiased special prosecutor to assess the legal implications of the facts the FBI produced, a prosecutor free of political ties and conflicted interests, with directions to present the case to a grand jury for possible indictment. That is the constitutional process to achieve objectivity in prosecutions of this political kind of matter.
Before anyone searching for such an independent prosecutor takes Director Comey’s word about his standard for reasonable prosecutors they might want to check first with his FBI Sacramento office about whether they would agree with the Director that Assistant United States Attorney Jean M. Hobler was unreasonable when she successfully prosecuted the case of a reservist for “removing and retaining” on his private computer classified material acquired when he was serving as a Naval Engineer in Afghanistan. The FBI investigated the case as a violation of 18 U.S.C. §1924, and published a press release lacking any suggestion that the FBI considered AUSA Hobler to be a “reasonable prosecutor” for winning this case.
Though not nearly as significant as Clinton’s similar crime, this case was virtually identical as far as the element of intent goes. Not a problem. In fact the investigation of the Sacramento case found no motive “to distribute classified information to unauthorized personnel,” which is not quite true of the Clinton case. Comey said the case could be distinguished when it was raised at the hearing, but he did not do so. Congress needs to ask the Director to put together a dossier of similar cases that the FBI has investigated, and that he might have thought could be distinguished. Since in his Statement Comey said “we cannot find a case that would support bringing criminal charges on these facts,” we need to know if his definition of these facts include only relevant facts. Congress needs to ask Comey for all the legal memoranda distinguishing such cases as the Nishimura case, so people can determine whether these cases really are different in principle from Clinton’s case after they have a “complete accounting of the facts” which Comey claimed they do not now have.
Many commentators, including Gowdy, Chaffetz and other oversight committee members concluded that Comey is operating within the framework of a two-tiered system of justice in giving this justification of insufficient intent. The elite political class has one kind of law and everyone else another. While police are murdering blacks on the streets with impunity, the political elite is placed above the law.
Confusing motive with intent
Comey has not only misled the public by his demand for evidence that Clinton’s violation of the law was “clearly intentional and willful” according to some subjective evidentiary standard of his own. More importantly, in his discussion of precedents, he deliberately confuses these terms with the separate concept of motive.
As justices Alito and Thomas said in another context, Comey’s quoted statement about controlling DoJ precedent “confuses two fundamentally distinct concepts: intent and motive…. [O]ur cases have recognized that a lawful motive (such as necessity, duress, or self-defense) is consistent with the mens rea necessary to satisfy a requirement of intent.” Rosemond v. United States (2014). Any motive whatever can be used as evidence of intent but rarely can be used to disprove intent for purposes of determining guilt. According to the Supreme Court: “Motives are most relevant when the trial judge sets the defendant’s sentence …” Wisconsin v. Mitchell, 508 U.S. 476, 485 (1993) (hate crime). Motive might affect punishment, but ordinarily not guilt, except as evidence of intent.
This highly limited role of motive in all ordinary criminal prosecutions is violated by Comey’s reference to the kind of “intent” that was defined by DoJ precedent as “disloyalty to the United States; or efforts to obstruct justice.” These clearly concern motives for a crime and not intent to commit the underlying crime of mishandling the nation’s secrets and other information whether for reasons of disloyalty, obstruction or any other motive. These “fundamentally distinct concepts” of motive and intent are jumbled up here on Comey’s list of precedents together with his discussion of “intentional mishandling” or “intentional misconduct,” instead of focussing on the actual element of intent necessary to prove a crime.
In this context each of these formulations appear to share a concern more about the motive of the accused to accomplish some specific purpose by means of violating the law, rather than looking to the intent simply to violate a law. Intent is an element of a criminal offense, but motive – with very rare and particular exceptions – is not. Comey has let Clinton off because he did not find evidence of a motive sufficiently evil by his subjective standards, even though under the relevant statutes motive is not even an element of the crime that needs be proven at all. It is not necessary to unpack Clinton’s motives in order to convict her of the crime,
There is evidence, of course, that Clinton did reveal her motive by saying to a confidant, “I don’t want any risk of the personal being accessible.” This is evidence of her intent to make her own rules rather than to follow the DoS rules for her communications, in or to provide her greater assurance of privacy. Her publicly expressed motive for having a secret server and risking that the nation’s secrets entrusted to her may be “accessible” to foreign countries and hackers, along with “the personal,” was her own convenience.
Clinton said she wanted to use only one communications device, which is a somewhat less suspicious motive than an unprecedented obsession with secrecy which suggests questions about whether she might be hiding from the public (although not from hackers) information as important to her as the nation’s secrets. But that motive was shown by Comey’s sworn response to one of Gowdy’s questions to be a lie, because the FBI found she actually had used more than one device. Comey’s sworn testimony contradicted Clinton’s convenience argument that she wanted to have the personal and the public communications all on one device. Lying about her motives is yet further evidence of intent, as the former prosecutor Gowdy pointed out to Comey. One lacking any intent to break a law would not need to invent motives for breaking the law, in order to disguise other more nefarious motives.
Comey’s use of the term “willfully” in his “precedent” argument quoted above, as if it required some proof of motive, or specific intent, is outdated. The Supreme Court long ago rejected the idea that, without more, the term “’willfully’ … requires proof of any motive other than an intentional violation of a known legal duty. United States v. Pomponio, 429 U.S. 10, 11-12, (1976).
It is not necessary to parse Supreme Court decisions to understand the fundamental difference between motive and intent that Comey confused, since the distinction is embedded deeply in criminal law. A popular 19th-century legal handbook, for example, stated quite clearly that “motive with which an act was done is immaterial in deciding the question of criminality. A crime can be committed with a good motive …” “Motive may … sometimes be shown in evidence, but it is merely as evidence of intent. Motive must not be confounded with intent.” May’s Criminal Law (Beale, ed., 2d Ed.: 1893) 18.
Comey, in violation of these black-letter law principles, precisely did “confound [motive] with intent.” In saying that Clinton lacked sufficient criminal intent, what he was actually saying was that she did not have the kind of motive that he himself found sufficiently offensive to prosecute her violation of the law. His argument, discussed further below, was that the unprecedented nature of the professed motives for a Secretary of State to commit the crime of systematically mishandling the nation’s secrets about foreign affairs entrusted to her was an excuse for exonerating the crime. It was not Congress that created such a hierarchy of motives in the relevant statute, but rather the Executive Branch, on delegation to the FBI, which rewrote the law to insert a motive element of the crime in order to achieve its political ends.
Intent is Presumed
Even more important than Comey’s deliberate confusion of intent with motive – a clear and fundamental violation of law – is his view of the quantum of evidence needed for its proof. Intent, once properly disentangled from motive, is nowhere near as difficult to prove as Comey wants us to believe. Again, it has been long established that, “one [who] does an unlawful act … is by the law presumed to have intended to do it, and to have intended its ordinary and natural consequences.” Id.19. When Clinton arranged to have her public business conducted on a private email server in her basement without the permission and against the rules of the State Department, and therefore in violation of a number of federal laws – that act alone was sufficient to prove the intent element of the crime, as it would be for any mentally competent, sane, adult. The burden is on Clinton, not Comey, to prove by persuasive evidence that she peculiarly lacked the capacity to have the same intent any reasonable person would have in taking the actions she did. He said “I don’t think our investigation established she was particularly sophisticated with respect to classified information.” Even if the kind of ignorance (unsophistication) in dealing with the nation’s secrets that apparently persuaded Comey about Clinton’s motive were even believed by a jury, normally ignorance of laws concerning such matters is not a defense.
There are some obvious exceptions to this rule that motive is irrelevant to proof of the crime, such as hate crimes, civil rights violations, and treason where evil motive is an express element of the crime. There are also some less obvious exceptions where “Congress may decree otherwise” by expressly adding a “willful” element for criminalizing “not inevitably nefarious’ regulatory offenses, such as involving taxation, or currency structuring. See Ratzlaf v. United States, 510 U.S. 135 (1994). Neither has Congress generally created such a motive element for the laws intended to protect government interest in the security of its communications nor are such laws normatively neutral regulatory measures.
At least one writer who offers legal credentials as authority for political opinion has supported the FBI’s decision to exonerate Clinton as justified by “a legal concept called mens rea. As a general rule, most crimes require prosecutors to prove that an individual acted with a particular state of mind before they can be convicted of a specific crime.” First, this statement is misleading to the extent it suggests that “most crimes” require specific intent, or motive. As mentioned above, very few crimes do. “As a general rule” intent is presumed from the illegal act and prosecutors have little concern with proof of intent. Second, this writer, like Comey, limits his analysis to laws involving classified information, though other laws listed below were also violated that go beyond just classified information to include all public records. This writer thus continues “She had to have acted with knowledge that specific information was classified when it was transmitted. There is little, if any, evidence that Clinton possessed this state of mind.”
This statement can only be called nonsense in light of the description of the general presumption of intent from the illegal act of routing materials that would inevitably include classified materials through an insecure private server. No such specific information about any one particular communication was necessary. Executive Order 13526, Sec. 1.4(d) (2009) defines “classified” as information relating to “foreign relations or foreign activities of the United States” which “could reasonably be expected to cause identifiable or describable damage to the national security.”Almost any information that a Secretary of State would be handling could have such an impact, some more credibly than others, since any “foreign government information is presumed to cause damage to the national security.” Comey was unable to disagree with Rep. Chaffetz’ observation that Clinton would reasonably expect to be communicating classified information through her unsecured server on a regular basis. “She’s not the head of Fish and Wildlife.”
Unlike the Espionage Act, 18 U.S.C. § 793(a), which applies to anyone and not just public officials, the laws that the FBI selected to govern Clinton’s emails, for example § 793(f), does not require a specific motive that the mishandled information was “to be used . . . to the advantage of any foreign nation.” Under § 793(f) the material itself only needed to relate to national security. Moreover neither statute mentions classification. The statute concerning classification is 18 U.S.C. § 1924 which applies when “an officer, …of the United States … by virtue of his office … becomes possessed of documents or materials containing classified information … knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location.” Clinton did not have “authority” for removing her materials from the DoS communications system and did intend to retain them at an unauthorized location, which she did until she was forced to return them nearly two years after she left office. Any reasonable person would have known that classified information would be removed and retained by Clinton’s secret server operation.
No Precedent, or Bad Precedent?
Gowdy concluded his questioning by attacking the lack of precedent excuse that Comey gave for recommending against prosecution. Lack of precedent resulted from the fact that no prior Secretary of State had systematically removed their communications including the nation’s secrets from the State Department to her basement where they were insecure. Over their lifetime of scandals and corruption, such as the engine for global conflicts of interest labeled “The Clinton Foundation,” the Clinton’s atrophied ethics have tended to break new ground. The fact that there are no precedents for Clinton’s particular motive for secrecy was the result of how extraordinary Clinton’s conduct was.
Both Gowdy and Chaffetz turned the “no precedent” claim around against Comey suggesting, instead of lack of precedent being an excuse not to prosecute, that Comey was making bad precedent by failing to prosecute on the ground of lack of intent. There is now no disincentive for Clinton or her staff or anyone else not to operate the same privatized communications system as president, or in any other position of trust.
Artificially limited scope of investigation
Comey reported only three possible charges that could have been brought against Clinton or her aides: intentional mishandling of “classified information” or grossly negligent mishandling, both felonies under § 793(f); and knowingly removing classified information from appropriate systems, a misdemeanor presumably under § 1924.
The FBI indicates that the recommendation of the FBI was limited to “laws governing the handling of classified information” although § 793(f) does not mention classified information. Comey did not mention the various other laws implicated by Clinton’s mishandling of her emails, or her misstatements about it in various fora. The FBI did not record or take sworn testimony of its interview with Clinton, one of the most important interviews in the history of the FBI, so Comey’s subjective judgment that there was no evidence that she made false statements to the FBI cannot be objectively tested.
Comey admitted to the Chairman of the House Oversight Committee that the FBI did not investigate lies told to the Benghazi Committee because it did not have a “referral” from Congress. The Committee Chair Chaffetz responded: “You’ll have one in the next few hours.” Will the FBI also need a referral to investigate the other possible crimes committed by Clinton with respect to her email practices? These would include possible violations of 18 U.S. Code § 641 (one who “disposes of any record … of any department or agency”); 18 U.S. Code § 2232 (“Destruction or removal of property to prevent seizure”); 18 U.S. Code § 1512(c) (one who “destroys, mutilates, or conceals a record, document, … with the intent to impair the object’s … availability for use in an official proceeding,” such as a FOIA proceeding, perhaps?); 18 U.S. Code § 1519 (the same, to “influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States,” like the Clinton Foundation charity conflicts, perhaps?); and 18 U.S. Code § 2071 (one who “takes and carries away any record … in any public office”).
Another matter raised at the hearings that the FBI did not pursue was that Clinton may have had on her unprotected secret server the names of covert CIA officers, the disclosure of which is a felony under the Intelligence Identities Protection Act.
Bernie Sanders has been too preoccupied with convincing his followers that the Democratic Party Platform is relevant by performance of his new role in the Kabuki theater of corporate Democrats, where he has been acting out a supposedly important public debate over the Platform contents. He is planning to endorse for the Democratic Party nomination that was stolen from him the FBI-certified “extremely careless” candidate, rather than argue at the Convention 1) for her disqualification on that ground and 2) for party rules that would prevent current and future election theft.
Therefore it was left to Green Party candidate Jill Stein to point out, along with many others, that, in addition to the above analysis about the true legal meaning of and factual proof necessary for the element of intent, “All the elements necessary to prove a felony violation were found by the FBI investigation, specifically of Title 18 Section 793(f) of the federal penal code…. Director Comey said that Clinton was ‘extremely careless’ and ‘reckless’ in handling such information. Contrary to the implications of the FBI statement, the law does not require showing that Clinton intended to harm the United States, but that she acted with gross negligence.”
Section 793(f) punishes anyone “entrusted with … any … information, relating to the national defense, [who] 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.” Comey explained that he did not want to apply a statute that specifically reduces the ordinary intent to an even lower standard which matched the precise factual findings of the FBI. This gross negligence issue is something of a red herring from the real issue that Comey has overstated what is necessary to prove the element of intent by confusing it with motive.
It is unlikely that Comey’s highly flawed legal explanation for the FBI’s institutionally inappropriate spiking of the prosecution of Hillary Clinton will escape the political verdict rendered by Trump and others that it was “rigged.” As the WSJ wrote, “Washington rewards officials who are best at currying public favor, best at surviving, best at creating unfounded legends.” Such an official who has “spent a lifetime with one eye on politics and one eye on his résumé would have behaved exactly as Mr. Comey did.”