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Seven Questions for Director Comey

Director Comey will appear before Congress today.  Here are seven questions I hope he'll be asked.

1.  You said that no reasonable prosecutor would have brought a case against Sec. Clinton on the facts you found.  But four well-regarded former federal prosecutors  -- Attorney General and Judge Michael Mukasey; former Deputy Attorney General Rudy Giuliani; former Division Chief Andy McCarthy of the USAO for the Southern District of New York; and former Appellate Chief for the Eastern District of Virginia (now Georgetown Law Professor) William Otis have all said that a prosecution could have been brought and probably would have succeeded.  Do you think these are all unreasonable judgments?

2.  The statute most obviously suited for prosecution is 18 USC 793(f), which forbids improper exposure of classified national security information through gross negligence. You correctly characterized Ms. Clinton's behavior with such information as "extremely careless."  Doesn't extreme carelessness provide a fully adequate basis to put before a trial jury the question whether Ms. Clinton's conduct showed gross negligence, and thus breached the statutory standard?

3.  You began your statement by reciting what the law requires for a felony or misdemeanor conviction in cases like this. You noted that gross negligence is the standard for a felony conviction. You then recited a host of facts as the FBI found them. Isn't there, at the minimum, a reasonable prospect that a trial jury would have found these facts taken together, to  constitute gross negligence?

4.  When it came time to merge these two strands and explain your decision whether to recommend an indictment, you then, oddly it seems, made no reference to the legal standard you correctly articulated a few minutes earlier.   Instead, you formulated a new standard based on features you said have been present in past cases where prosecutions have been brought for the mishandling of secret/classified information. Gross negligence  --  the statutory measure  --  was no longer included in your description, and was replaced by intent to harm the U.S.or disloyalty.

Doesn't that amount to a re-interpretation of the statute, not by the courts or Congress, but by the investigative arm of the executive branch?  And doesn't it, in effect, transform a gross negligence statute into a more typical  --  but not constitutionally  required  --  mens rea statute?

5.  Putting that entirely to one side, have there not indeed been prosecutions for 793(f) offenses based strictly on the statutory standard of gross negligence?   For example . United States v. Roller, 42 M.J. 264 (1995) (affirming 18 U.S.C. 793(f) conviction of a military serviceman who inadvertently placed classified materials in his gym bag and then took them home, which the court determined to be "gross negligence" as the statute required).  Does that case call into question your statement that a Clinton prosecution on these facts would be "unprecedented."

6.  Even if one takes the problematic view that the very unusual and prominent features of this case warrant taking into account more than "merely" the existence of probable cause and gross negligence, does it seem to you that  those features  -- principally the need for accountability from high officers of the government, and for public confidence in equal application of the law to big shots as well as ordinary people  --  suggest even more strongly that an indictment should have been recommended?

7.  If Ms. Clinton had been an employee of the FBI; had engaged in the same pattern of extreme carelessness; and had in addition displayed the same failure to be truthful in describing what she had done, and in having her lawyers delete thousands of emails before your investigation could assess their national security significance, would Ms. Clinton have been promoted or demoted  --  or fired?


Comey's Answer: Regarding 793(f), any prosecution based upon "gross negligence" alone is, in my opinion, constitutionally suspect. And no reasonable prosecutor would prosecute based upon a constitutionally suspect statute.

Yet, military prosecutors have been prosecuting cases under 18 U.S.C. 793(f) for years based on gross negligence. See United States v. Roller, 42 M.J. 264 (U.S.C. for Armed Forces) (serviceman convicted for violating 18 U.S.C. 793(f) based on gross negligence where the serviceman inadvertently removed classified information in his gym bag); United States v. Gonzalez, 16 M.J. 428 (Ct. Mil. App. 1983) (serviceman convicted for violating 18 U.S.C. 793(f) based on gross negligence where he accidentally took classified information to a friend's house and left it in a desk drawer).


If "suspect" simply means debatable among reasonable people, that is nonsense. Prosecutors prosecute under statutes that some people think are unconstitutional (and others disagree) all the time. That is how constitutional questions get decided by the courts.

Comey's Reply To Zac and Kent?:

I adhere to Justice Jackson's comments about the role of federal prosecutors delivered on April 1, 1940. And I believe that it would have been unethical for me to recommend a prosecution believing (as I did, and still do) that 793(f) as written is unconstitutional.

I made my decision based upon the facts, the law (as I interpret it), and my ethical standard of conduct.

Reasonable minds might disagree with my decision. But I stand by it 100%

Okay, "I believe the statute is unconstitutional" is different from "I think the constitutionality is suspect."

I do disagree with the conclusion that the statute as written is unconstitutional. I don't even think it's a hard question.

Does anyone know if the FBI has investigated, or reached any conclusion, on whether or not HRC lied during her FBI interview last week?

Three points.

First, has DOJ ever, before now, asserted that the statute was EITHER unconstitutional OR constitutionally suspect? I never heard it if they did. To the contrary, DOJ has, I believe, initiated and successfully defended such prosecutions.

Second, does this mean DOJ is now taking the position that ALL mere negligence, non-mens rea criminal statutes are "constitutionally suspect?" Because that is sure not what DOJ has been saying in vigorously and repeatedly opposing mens rea reform.

Third, since when does the FBI decide that Congress's statutes are "constitutionally suspect?" Isn't that the job of the lawyers at DOJ, specifically the Office of Legal Counsel and the Solicitor General? Isn't it the job of the FBI simply to find the facts?

To Kent, Zac and paul --

Is it your impression that Comey is taking the position that he did not recommend indictment, not because the facts were deficient, but because the statute, by requiring mere negligence (shown by the facts) is probably unconstitutional, since it should have to require bad intent (not sufficiently shown by the facts).

If that is indeed Comey's position, I think DOJ itself is simply going to have to review the question. It has become a legal issue, not a factual one.

I thought Paul's 10:13 comment was a quote, but upon rereading it appears to be hypothetical.

Comey's prepared statement says,

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.

I don't think that answers the question. First, there are vast quantities involved, nearly the entirety of a high official's email correspondence. Second, I think a high official should be held to a higher standard than the average Joe. Third, I do think there are efforts to obstruct justice here.

I understand Comey to be stating that in his opinion it would have been "unfair" to charge HRC because (1) the DOJ has never prosecuted anyone under 793(f) based upon "gross negligence" alone, and (2) he believes that 793(f) is unconstitutional to the extent it permits a conviction based on "gross negligence" alone.

He is applying an ethics-based "unfairness" standard in exercising his discretion. Prosecutors do this thousands of times every day.

I would like to know, however, why Comey believes 793(f) is unconstitutional. Did he consult with any DOJ attorneys regarding this issue?

I also would like to know if the FBI confronted HRC with any of her public statements about what she knew (and didn't know) during the 3 hour interview? It seems to me that they should have asked such questions if for know reason other than to treat her with the same "fairness" that Martha Stewart was treated during her FBI interview.

Has the FBI closed the case on whether HRC lied during the interview?

All in all, I believe Comey is an honorable person who had to make a monumental decision under intense scrutiny. (Kind of like the position Justice Roberts was in on the Obamacare case.)

The fact that neither side of the political aisle is 100% pleased with Comey's decision, to me indicates that politically (although perhaps not legally?) he did the right thing.

As to his legal decision, I believe reasonable minds can differ. And that's the sine quo non of "reasonable doubt."

"[Comey] is applying an ethics-based 'unfairness' standard in exercising his discretion. Prosecutors do this thousands of times every day."

First, he's not a prosecutor.

Second, those who are prosecutors, as members of the executive branch, are to enforce the law as written, not re-write it (Congress's prerogative) or interpret it (the courts).

Third, if the executive branch thought Section 793(f) constitutionally suspect, the head of that branch (the President) had the option of vetoing it. He didn't.

Fourth, what is unprecedented is not the feds convicting a defendant under 793(f), since, as Zac points out, that has been done more than once, but REFUSING to use that statute where the underlying facts fit it.

Fifth, do you not find it a bit smelly that the first time ANY member of ANY of the three branches questions 793(f) is when the candidate of the party in power is in its crosshairs?

My goodness!!!


In my experience (and I am sure in your experience?) law enforcement officers, in some instances, exercise their discretion and don't enforce the law as written. In most cases, it involves lower-level crimes that are never submitted to prosecutors for review.

Likewise, prosecutors, also in some instances, exercise their discretion and don't file charges even if the letter of the law has been violated. Whether you call this exercise of discretion a "fairness" standard or a rejection "in the interests of justice" (which, by the way, is a common code on forms used by prosecutors in many jurisdictions).

Comey, IMO, ethically exercised his discretion not to recommend charges against HRC, despite the fact that 793(f), as written, appears to have been violated. His explanation that, in his opinion, it would be "unfair" to charge her was, IMO, a proper, ethical, exercise of his discretion.

I don't necessarily agree with his decision. But I respect it. And (although I may be wrong) I don't believe that politics played a part in his decision-making process, other than his understanding that his decision would have significant political consequences.

If our country had more politicians of Comey's caliber in office, we wouldn't be in the mess we are in right now.

So the executive branch may effectively repeal ANY legislation Congress passed and the President signed, and no court has questioned much less overturned, simply because the executive branch decides, for the first time ever, that the statute is "unfair."

I have seldom seen a more effective prescription for obliterating the previous co-equality of the branches.

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