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?