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Q: Did Director Comey Make a Mistake?

A:  In my opinion, based on publicly known facts, he did.  There was probable cause to believe Ms. Clinton committed one (or more likely, numerous) felonies, to wit, illegal exposure of classified information through gross negligence, in violation of 18 USC 793(f). And if one is of the view, as I am, that the very unusual and prominent features of this case warrant taking into account more than "merely" the existence of probable cause, it seems to me that those circumstances  -- principally the need for accountability from high officers of the government and public confidence in equal application of the law  --  suggest even more strongly that an indictment should have been recommended.

The case has been made by former star federal prosecutor Andy McCarthy, here; by Judge Michael Mukasey, here (noted earlier by Kent): and by the WSJ editorial board, here.  In addition, Paul Mirengoff notes what certainly seems to be the disjointed logic of Director Comey's analysis:

Comey's explanation was odd and unpersuasive on its face. He began by reciting what the law requires for a felony or misdemeanor conviction in cases like this. He noted that gross negligence is the standard for a felony conviction. He then recited the facts as the FBI found them. These facts suggest gross negligence.

When it came time to merge these two strands and present his decision whether to prosecute, Comey made no reference to the legal standard he had articulated a few minutes earlier. Instead, he pulled a switcheroo, formulating a new legal standard based on the elements he says have been present in past cases where prosecutions have been brought for the mishandling of secret/classified information. Gross negligence exited stage left -- replaced by intent to harm the U.S., disloyalty, etc.

Paul continues:

I don't know whether Comey is correct about past prosecutions. For example, did David Petraeus' case meet the criteria Comey articulated this morning. Maybe, since he intended that his mistress see the information he showed her. But more than Comey's say-so should be required before we buy his assertions regarding past (and present prosecutorial) practice....

In any event, Comey simply ignored the statutory standard he laid out. A first year associate at a law firm wouldn't dare present an analysis like this.

I would add only that the no-indictment recommendation will cement the dark and corrosive narratives Trump has been peddling in a way that Trump himself has been unable to do, try though he has at his screeching best.

What's Trump been saying?  That Hillary is dishonest from morning till night, that she gets by with behavior that would land lesser folks in the slammer, that she builds her empire (and her wealth) with connections ordinary people have no chance of getting; and that the system is rigged (say, by having your husband get a closed, untranscribed meeting with Comey's boss four days before the Director's announcement).

The whole problem with Hillary is not so much that she's a crook, which many people (not just Republicans) have thought for years.  The problem is more galling and, now, less escapable:  Hillary is a crook who gets away with it.

Whether she gets the Presidency, however, remains to be seen.



I think Comey handled this all wrong. Why was the FBI director making a public recommendation on whether a target of an investigation should be indicted? The decision of whether to prosecute is not the FBI director's job. The FBI is an investigative agency whose primary duty is to discover facts and obtain evidence. In all of the cases I was involved in, the FBI's role was to interview witnesses, conduct searches, review documents, etc. and then to prepare an investigative report explaining what was found. The FBI then turned that report over to the U.S. Attorney's Office and/or DOJ's Criminal Division. It was the job of the AUSA/DOJ trial attorneys to determine whether the case should be presented to the grand jury.

I was alarmed when I heard Comey talk about what a "reasonable prosecutor" would or would not do. With all due respect, Comey is not the prosecutor. What he thinks a "reasonable prosecutor" would do is entirely irrelevant. Yes, I know Comey was once a respected prosecutor. But, he no longer fulfills that role. He is now an investigator. His role in this matter was to discover facts, find evidence, and then turn it all over to the prosecutors. Instead, he took it upon himself to make a recommendation during a press conference. In a normal case, the DOJ prosecutors would be furious to see an FBI agent pull such a stunt. Indeed, if an FBI agent publicly shared his thoughts about how the federal prosecutors should handle a case, it would probably irreparably harm the relationship between that agent and the prosecutors. Everything that Comey did yesterday showed poor judgment from a man with a reputation for good judgment.

A final note--I think Comey made a major mistake by saying what a "reasonable prosecutor" would do. That is a dangerous statement to make in a case like this. Why? Because it has been quickly exposed as false. A number of reasonable (former) prosecutors (namely, AG Michael Mukasey, US Attorney Rudy Giuliani, Andy McCarthy, and you) have already denounced Comey's decision and explained why they would have likely sought an indictment. If Comey wanted to say anything, he should have simply said: "In my judgment, a prosecution would be inappropriate in this case because of X, Y, and Z. The FBI has submitted a report to the Department of Justice lawyers summarizing the facts obtained during the investigation. The final charging decision will be made by the Department of Justice lawyers assigned to the matter." Maybe Comey is correct that no charges should be brought, maybe he is incorrect. Either way, he handled the situation very poorly.


Maybe there is logic behind Comey's seemingly inexplicable public failure to apply the law (as written) to the facts.

By publicly laying out a powerful case against HRC he significantly wounds her and, as Bill notes, provides the pro-Trump (or, more likely, anybody but Hillary) camp with specific objective factual details that can be used by the GOP in their efforts to destroy her chances of becoming President.

With Comey now agreeing to testify before Congress regarding his analytical thought process, the image of Crooked Hilary will be further cemented in the minds of voters.

Could this have been a grand GOP conspiracy all along? If an indictment had been pursued, would the public have been privy to all of the excoriating facts laid out by Comey? And would have a sequel, once again exposing those criminal facts (and perhaps more), occured center stage in the form of a nationally televised Congressional hearing?

Okay. I will take my tin foil hat off. But there must be some logic behind Comey's conduct. And I just don't buy his claim that an indictment isn't warranted, even though the letter of the law has been violated, because this would (purportedly be the first case where the government had to rely exclusively on a "gross negligence" theory to establish a 793(f) violation.

no reasonable prosecutor would bring such a case

Prof. Bill Otis,
Although you probably don’t care what I think about you, here it is:
You have done a long, hard, job of service for our country, and you
tend to take the difficult stance when it seems right to you, whatever
the personal cost.
Having studied and enforced the Constitution and laws of this land,
and not failed to learn through experience, your positions are
therefore often righteous and irrefutable.

Now, after hearing from Rudolph Giuliani, Andrew McCarthy, Michael
Mukasey, and James Comey, if you do not fiercely and abjectly
distance yourself from Director Comey, you have lost my respect.

Comey was incompetent at best, or corrupted by influence at worst,
reminiscent of Chief Justice Roberts with the ACA. As he ought be
removed, you as his former associate must use your position to
prominently denounce his actions regarding Hillary Clinton.

For the FBI Director to countenance the repeated illegal
mishandling of Top Secret intelligence by the Secretary of State
is bald dereliction, Mr. Otis.

Zac --

There is, as usual, much in what you say. I am not finished with this story yet. Just this morning I put up a list of questions I think Congress might profitably ask Jim Comey. I will have more posts and more questions in the future.

My personal view is that, given your top-notch legal background and intellect, you should talk with Kent about becoming a guest blogger here.

Adamakis --

I look forward to your comments and wish you made more of them. You have research skills well beyond mine.

I believe that, by now, and to be continued in coming days, my disagreements with Director Comey will become clear.

There are times when I use strong language, but I think it ill-advised to do so in this setting, where -- to whatever minimal extent it might be possible -- I want to keep untangled from one another the legal and political questions surrounding the no-bill recommendation.

I also tend to be more circumspect when discussing disagreements with friends and former colleagues. I question Jim Comey's judgment in this instance, but he is not a corrupt man. He is confident, as many smart men are, and confidence can breed a greater degree of assurance than a complicated field might warrant. Whether that happened here or not, I have respected and liked Jim Comey for years, and I decline to question his motives.

His actions.........that's a different matter.

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