Comey Indicts Hillary Clinton—But Recommends No Indictment

Back in March, when it appeared that FBI Director James Comey might call for the indictment of Hillary Clinton, I laid out the stark consequences of failing to bring criminal charges against the now presumptive Democratic presidential candidate: “Now the administration faces its biggest challenge, which will determine whether the U.S. has become a banana republic: Will Hillary Clinton be indicted?”

The day when our Republic has succumbed to corruption, politicization and cronyism has arrived. In light of the decision last week by Director Comey and his rationale for it, we may have become that banana republic.

The idea that Hillary Clinton broke no laws while secretary of state is offensive to anyone who believes in equal justice for all. Even Director Comey, during his July 5statement to announce that the FBI will not recommend prosecution, did not argue that Mrs. Clinton and her staff weren’t in the wrong. Rather, he said that “no reasonable prosecutor would bring such a case” against Mrs. Clinton. But a number of very reasonable former prosecutors have since said otherwise: Rudy Giuliani, Joe diGenova, former Attorney General Michael Mukasey, and Andy McCarthy, to name a few. Yes, they’re all Republicans, just like Comey. But Comey owes his appointment as FBI director to President Obama, whose knowledge of Hillary’s use of an unsecured server implicates his own office in this ongoing scandal. This may well explain why Obama has had his thumb on the scale, long ago declaring Hillary’s actions as merely “careless” and not jeopardizing national security, while claiming no knowledge of the investigation beyond what was in the media.

Comey said investigators “did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information,” but they did find evidence “that [Clinton and her aides] were extremely careless in their handling of very sensitive, highly classified information.”

Despite Comey’s assertion that such a prosecution would be unprecedented because Mrs. Clinton didn’t, in his view, intend to break the law, Sarah Westwood of The Washington Examiner has found several examples where negligence, or carelessness, in handling classified materials—far less egregiously than Clinton—resulted in charges.

There was, for example, the case of the Marine Corps officer forced out of the service for mishandling classified materials. His crime: “sending a warning to deployed colleagues about an Afghan police chief whose servant later killed three Marines” and that the police chief “was corrupt and sexually abusing children,” according to The Washington Post.

Two days after Comey’s announcement, he went before a congressional committee to answer questions about his decision. During questioning from Rep. Trey Gowdy (R-SC), Comey acknowledged that Mrs. Clinton had lied about whether she had sent or received any emails marked classified; whether she had emailed classified material that was classified at the time, whether marked or not; whether she had done this email set up so she could do all of her emailing using just one device (Comey acknowledged that she had used multiple devices); the fact that she had turned all of her work related emails over to the State Department (Comey acknowledged there were “thousands” that had not been turned over); and she lied when she said that no work related emails were deleted or wiped from her server. You can watch that exchange here:

But the events leading up to and throughout the Fourth of July weekend revealed a staged event, or at least one in which the principal players must have known Comey’s bottom line. About the time it was announced that Hillary was finally going to be interviewed by the FBI for three and a half hours, it accidentally came to light that there had been a meeting on a plane between former President Bill Clinton and Attorney General Loretta Lynch. Clinton had appointed Lynch to her position as U.S. Attorney when he was president. In addition, a message came from the Clinton camp via The New York Times that Ms. Lynch would be getting strong consideration to stay on as attorney general in a Hillary Clinton administration. And we heard from CNN and others citing sources “familiar with the investigation” indicating that no indictment was likely. The fix was in; the media should have instead been asking the hard questions about Mrs. Clinton’s reckless disregard of the law.

Then, less than three days after the FBI interview was completed—an interview that Comey later said was not under oath, and apparently not recorded—he announced that he was recommending no indictment, and that no reasonable prosecutor would do otherwise. It would have been impossible to compare her statements in the interview to her public record to determine if she had lied to the FBI. Comey even acknowledged that her testimony was not compared at all to what she told the Select Committee on Benghazi last October.

On the same day as Comey’s announcement, President Obama and Mrs. Clinton traveled together on Air Force One to a campaign stop where she spoke in front of the presidential seal. In other words, the outcome was apparently known before Comey made his announcement, in spite of his declaring that that was not the case.

As former federal prosecutor Andy McCarthy has previously noted, “’malicious intent’ is not required to prove felonious mishandling of classified information.” Rather, McCarthy writes, “gross negligence would do, so if there really is even ‘scant’ evidence of malicious intent, that suggests it would be fairly easy to prove the crime.”

Even Director Comey concurs that Mrs. Clinton and her staff were willfully reckless. Do her actions not qualify at least as “gross negligence?”

“Mrs. Clinton has asserted that she did not send or receive any information marked classified at the time it was sent,” reports The New York Times. “But about two dozen emails were designated ‘top secret,’ the highest level of classification, and Mrs. Clinton’s critics say she jeopardized national security.”

In other words, Mrs. Clinton lied.

“To be clear,” said Comey at his announcement, “this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences. To the contrary, those individuals are often subject to security or administrative sanctions, but that’s not what we’re deciding now.”

Yet there will be few consequences for Hillary Clinton for her misconduct outside the political domain. And Comey’s actions constitute little more than a politicized decision.

As secretary of state, Mrs. Clinton repeatedly acted in ways that benefitted her and her family and her family’s foundation, in obvious quid pro quo situations, and most importantly in her handling of classified information on her private unsecured server. When there were problems with the secure fax, Mrs. Clinton indicated that her staff could turn secure information “into nonpaper with w no identifying heading and send nonsecure,” thereby stripping classified markings. Mrs. Clinton also authored 104 classified emails sent through her private email server.

Clinton apologists and the media have claimed that the information Mrs. Clinton sent through her private email server was largely up-classified retrospectively. However, the classified information that Mrs. Clinton jeopardized was far from inconsequential—and some of it was highly classified at the time. One of Mrs. Clinton’s emails regarding the “movement of North Korean nuclear assets” was “initially flagged by the inspector general of the intelligence community in July as potentially containing information derived from highly classified satellite and mapping system of the National Geospatial-Intelligence Agency,” according to The Washington Times.

The degree to which Mrs. Clinton broke classification laws shows arrogance and contempt for the American people. It was not merely carelessness: it was willful. And, as Comey said, Mrs. Clinton’s use of a private email server was widely known by those in government.

This is a dark day in American history, although the media certainly won’t report it that way. We must wait to see if Joe diGenova was right when he said in January that there would be a revolt inside the Bureau if there is no indictment, because failing to prosecute Mrs. Clinton means that the government can never again credibly indict someone for mishandling of classified material.

As far as the other investigation regarding public corruption, in regard to the intersection of Mrs. Clinton’s work as secretary of state with matters related to the Clinton Foundation, it came up at the House Oversight Committee hearing on Thursday, but Comey refused to comment. Asked by Rep. Jason Chaffetz (R-UT), chair of the House Committee on Government Oversight and Reform, “Did you look at the Clinton Foundation?” Comey replied, “I’m not going to comment on the existence or non-existence of any other investigations.”

Some see this as an unintentional favor to the GOP and those who believe that electing Mrs. Clinton president would be a disaster in terms of rewarding someone who was so deceitful and reckless with America’s national security secrets. She may also be vulnerable to blackmail from countries and individuals who may have successfully hacked her server. Mrs. Clinton is a badly weakened candidate, the theory goes, and was clearly treated as someone above the law. Comey, whether wittingly or unwittingly, made the case for how corrupt and deceitful Mrs. Clinton had acted, but left her to twist slowly in the wind.

Roger Aronoff