Wednesday, July 6, 2016

The Illogic of FBI Director James Comey: In a Nutshell

Having my coffee this morning I was treated to an interesting bit of political theater. FBI director James Comey first explained in detail how Hillary Clinton was guilty of committing a felony under federal law, then explained that his bureau would not recommend she be indicted for that felony.


The laws under which Clinton could be indicted for her use of a private email server criminalize at least two things. One might either 1) intend to transmit classified information, or 2) show gross negligence in the handing of classified information.

Listening to Comey, I can only conclude that he intentionally obscured the importance of the “or” that separates 1) and 2). Comey read it as an and, implying that no prosector would pursue a case against Clinton because the investigation found no evidence of intent to transmit classified information.

But our law doesn’t merely criminalize intent, it criminalizes gross negligence as well.

Bizarrely, according to Comey’s logic, to commit a felony one must both intend to betray secrets and then show gross negligence in handling those secrets. This simply doesn’t make legal, or even practical, sense. If I intend to betray information, I’m not then going to show gross negligence in handling it. The relevant statues refer to two distinct crimes, having nothing to do with each other. To be guilty of one, Clinton doesn’t have to be guilty of both, as any prosecutor would know.

It gets worse. Comey himself stated that top secret information may very well have been stolen by our enemies thanks to Clinton’s insistence on transmitting it through her unsecured private email server:

We do assess that hostile actors gained access to the private commercial e-mail accounts of people with whom Secretary Clinton was in regular contact from her personal account. We also assess that Secretary Clinton’s use of a personal e-mail domain was both known by a large number of people and readily apparent. She also used her personal e-mail extensively while outside the United States, including sending and receiving work-related e-mails in the territory of sophisticated adversaries. Given that combination of factors, we assess it is possible that hostile actors gained access to Secretary Clinton’s personal e-mail account.

As Secretary of State, Hillary Clinton was responsible for handling classified information carefully. She knowingly did the opposite. Which is why the following sentence from Comey literally contradicts itself:

Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.

Federal law already makes gross negligence a crime for which one may be imprisoned up to ten years. I don’t know about you, but I don’t find any clear difference between “extremely careless” and “grossly negligent”. Comey basically laid out why the Secretary of State is guilty of a felony.

What kind of information was compromised? Clinton has repeatedly said that no classified information was transmitted through her private server. She was lying. Comey:

For example, seven e-mail chains concern matters that were classified at the Top Secret/Special Access Program level when they were sent and received. These chains involved Secretary Clinton both sending e-mails about those matters and receiving e-mails from others about the same matters. There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation. In addition to this highly sensitive information, we also found information that was properly classified as Secret by the U.S. Intelligence Community at the time it was discussed on e-mail (that is, excluding the later “up-classified” e-mails).

None of these e-mails should have been on any kind of unclassified system, but their presence is especially concerning because all of these e-mails were housed on unclassified personal servers not even supported by full-time security staff, like those found at Departments and Agencies of the U.S. Government—or even with a commercial service like Gmail.

There is no excuse for this. Hillary Clinton knew full well what she was doing, and although she may not have intended to compromise classified information, it is obvious she didn’t much care if it got compromised. The evident priority for Clinton in all of this was being able to conduct business through her own server and email account, from which she could then delete and scrub whatever she liked without any oversight or permanent record. And why would she want to do such scrubbing?

Study a bit about the Clinton Foundation and you may get an inkling why.

Eric Mader

Check out my Idiocy, Ltd. at and begin the long, hard reckoning.

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