Mimesis Law
20 September 2019

FBI Director James Comey Doesn’t Care About Your Opinion Either

July 8, 2016 (Fault Lines) – Americans have a distinct sense of schadenfreude when the rich and powerful go down. The criminal justice system, especially the federal system, chews up the little people and spits them out on a daily basis. There are currently so many federal crimes no one actually knows them all. There are plenty of opportunities to prosecute people and we love to see the big people get the same shitty deal the poor people down at the bottom get.

The problem with that position is where it leaves us, the little people. If the rich and powerful are getting screwed, how do you think that is going to work out for the not so rich and powerful?

When FBI Director James Comey announced his decision on the Hillary Clinton e-mail investigation, the Internet blew up with opinions on everything from the Clintons’ reputation for escaping the noose to the “rigged system”.

Politics and crime. They don’t mix well. Nobody wins. But at least we get to hear your opinion about the Hillary Clinton e-mail scandal. Democrat? Well, clearly this is all a Republican witch hunt to damage a presidential candidate. Republican? Damn it, the Clintons think they are above the law and now the whole federal government is covering up for them.

There are unlimited opinions out there. But lost amongst all the shrieking is the fact there was an actual investigation and a decision made on criminal activity. Like FBI Director Comey says, your voice and all the other clamoring voices weren’t heard.

I know there were many opinions expressed by people who were not part of the investigation—including people in government—but none of that mattered to us. Opinions are irrelevant, and they were all uninformed by insight into our investigation, because we did the investigation the right way. Only facts matter, and the FBI found them here in an entirely apolitical and professional way.

The difference between your opinion and what happened should be the difference between politics and crime. Politics is really all opinion. It’s built on smoke and mirrors and accusations and feelings. Facts are its mortal enemy. Crime, on the other hand, needs to be treated differently. It’s not for sending messages, evening scores, or justifying feelings.

Looking at the facts that we know, the FBI reached the right decision, even if it’s not the decision they might have reached if a regular person was the target. Director Comey’s statement shed some light on the details of the investigation.

The investigation began as a referral from the Intelligence Community Inspector General in connection with Secretary Clinton’s use of a personal e-mail server during her time as Secretary of State. The referral focused on whether classified information was transmitted on that personal system.

Comey and his team were considering two potential crimes committed by Clinton.

Our investigation looked at whether there is evidence classified information was improperly stored or transmitted on that personal system, in violation of a federal statute making it a felony to mishandle classified information either intentionally or in a grossly negligent way, or a second statute making it a misdemeanor to knowingly remove classified information from appropriate systems or storage facilities.

Most people are concentrating on the “grossly negligent” language. It’s a complex legal theory, because its vague. For example, this article contains a table that defines gross negligence in every state. New York courts require intent to find gross negligence. Alabama seems to find no difference between negligence and gross negligence. So yeah, if you look through the table in the article you will find a way to convict Clinton. Or let her go. Or just confuse yourself. If you hate Hillary, you think the FBI is writing its own laws. Or maybe it’s perfectly clear to you there was no crime. Or maybe you just don’t like the way it was announced.

In any event, Clinton was careless. According to Comey, “extremely careless.”

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.

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.

Definitely careless. But criminal? Even if you are one of those people who thinks every problem imaginable should be prosecuted, you have to see the problem here. According to Comey, over 30,000 e-mails were reviewed. 113 were classified at the time they were sent. That seems to support the case there was no intentional disregard for the law, or our nation’s security.

Carelessness should not be criminal. People should be punished for their actions. What they mean to do, not what makes us all crazy on the Internets.

Well, sure, but then she destroyed evidence to obstruct justice. Off with her head! I read the same thing in the news. Apparently, Comey is not reading my Facebook news feed or following my Twitter buddies.

I should add here that we found no evidence that any of the additional work-related e-mails were intentionally deleted in an effort to conceal them.

So no evidence of intent, and no obstruction of justice. What else can we be pissed about? Well, how about a Marine who didn’t get the special treatment Clinton did?

Marine Corps Major Jason Brezler was kicked out of the Marines for arguably doing the same thing Clinton did, albeit with more noble intentions. Brezler’s trouble arose after he warned fellow Marines about a notoriously corrupt Afghani police chief, Sarwar Jan.

Brezler’s case first came to light after he sent an e-mail with a couple classified documents attached to Marines in Afghanistan about Jan. Brezler was deployed to Afghanistan from 2009 to 2010, and had worked successfully to have Jan removed from power in another district, Now Zad. Brezler self-reported his spillage of classified information afterward, and the service found that he had been keeping it on an unsecured hard drive.

Brezler’s case is a poor comparison to Clinton’s. He hasn’t been charged criminally, he was disciplined by the military. So your real complaint should be with the military system. But more importantly, if you think his treatment justifies Clinton being prosecuted, you are agreeing what he did was a crime and he should be punished for it. In your zealous attempts to take down Hillary Clinton, you support the unfair treatment of a heroic United States Marine.

See how that works? The unfairness trickles down, not up. If you want everybody to get treated the same, maybe you should hope that treatment is fair? The solution is to hold your opinion and look at the facts. Major Brezler got screwed because the Marine Corp was embarrassed they didn’t listen to him. He had gone to a legislator for help as a whistleblower. In other words, his case got political and the result doesn’t make sense. That’s how it works when you add politics to everything.

Clinton should not have been prosecuted. Address her carelessness another way, but quit trying to criminalize all that we don’t like. It may not work out so well when it comes back around on you.

The problem with Hillary Clinton is political, not criminal. You don’t like her or her e-mail habits? Don’t vote for her.

6 Comments on this post.

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  • Hal Broker
    8 July 2016 at 11:09 am - Reply

    Funny how every other word out of Comey’s mouth is “classified information.” Two charges considered? Both regard classified information.” Better brush the hay off of yourself Josh, you’ve fallen for the “straw-man.” Totally ignored (which is the point) is the reason for the personal servers in the first place. She more than likely was doing all this (law-breaking) in order to keep her activities hidden from the public (FOIA) as well as her political rivals. Isn’t this also a crime? Why is everyone only talking about classified information and not about concealing things that legally should be publicly disclosed? That’s the bigger issue IMHO.

    • Josh
      8 July 2016 at 1:02 pm - Reply

      I was addressing Comey’s investigation. If there is another investigation into your concerns, I will write a new post. You are entitled to your opinion on the investigation, but you have to back it up with facts or you fall into the exact trap I am writing about.

      Hay and straw aren’t the same thing, so I need to either brush the straw off of myself or not fall for a hay-man argument…

      • Hal Broker
        8 July 2016 at 3:49 pm - Reply

        That’s exactly the point. Comey’s investigation was limited to the mishandling of classified materials. Why? Why wasn’t there an investigation into the concealment of public documents and evasion of FOIA requirements? Why is the result of Comey’s limited investigation seen as the final word on the whole email matter?

  • Richard G. Kopf
    8 July 2016 at 1:03 pm - Reply

    Josh,

    Great post. I have only one nit to pick with Director Comey.

    In this iteration of his life, Comey is not a prosecutor. He is a cop, albeit it one with a law degree and a hell of a lot of experience as a prosecutor.

    So, here is my one any only complaint: I believe it was unwise for the Director to say that no reasonable prosecutor would bring a case on the evidence the feds uncovered.

    He could have simply said FBI does not recommend prosecution and then made all the rest of his statement. The “no reasonable prosecutor” language (1) conflates the job of the FBI with Main Justice; (2) look bad ’cause a cynic might conclude that he is providing cover for the Attorney General, particularly when the recent conduct of the AG is examined in the heated glare of a hot tarmac; and (3) it boxes in the presumably reasonable and non-political senior prosecutors who will examine his recommendation.

    I have great confidence in Comey’s integrity and that of the FBI in this case. My criticism is only a small one, but perhaps not entirely insignificant.

    All the best.

    Rich Kopf

  • Raymond Rigat
    8 July 2016 at 2:43 pm - Reply
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