There were several embarrassing moments in James Comey’s statement yesterday. For me the most embarrassing was his claim that no reasonable prosecutor would bring a criminal prosecution against Hillary Clinton. As I noted at the time, Comey made this assertion without matching to facts he had laid out with the statutory language.
Dana Milbank, the Clown Prince of the Washington Post, takes the farce one step further. He insists that “no reasonable person’ can disagree with James Comey.”
Like Comey, Milbank makes his aggressive claim (if Donald Trump said no reasonable person can disagree with the FBI director, the Clown Prince would be the first to detect authoritarian tendencies) without any discussion of the relevant criminal statutes. He relies instead on the fact that when Comey worked in the Bush Justice Department he once stood up to strong pressure from the administration.
Milbank is as bad at logic as he is at law. At most, Comey’s confrontation with the Bush team is some evidence that his decision on Hillary represents a good faith judgment, not proof that no reasonable person can disagree with it.
Michael Mukasey is the former attorney general of the United States. Until someone demonstrates otherwise, I think he can be considered a reasonable prosecutor.
Mukasey believes Clinton could be (and if I read his piece correctly, should be) criminally charged. And unlike Comey, he supports this view by matching facts to law.
Mukasey begins with the relevant felony statute. “It is a felony,” he explains, “for anyone entrusted with lawful possession of information relating to national defense to permit it, through ‘gross negligence,’ to be removed from its proper place of custody and disclosed.” Thus, “gross negligence” rather than purposeful conduct is enough.
Yet, “Mr. Comey appears to have based his recommendation not to prosecute on the absence of ‘clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information.'” It seems to me that only an unreasonable prosecutor would base a decision whether to prosecute on such a blatant misreading of what the relevant statute requires.
Is there strong evidence of “gross negligence”? Mukasey finds it in the facts Comey laid out:
As an example of the kind of information at stake, he described seven email chains classified at the Top Secret/Special Access Program level. These were the emails that the government had said earlier are so sensitive that they will never be disclosed publicly.
Mr. Comey went further, citing “evidence to support a conclusion that any reasonable person in Secretary Clinton’s position . . . should have known that an unclassified system was no place for that conversation.” To be “extremely careless” in the handling of information that sensitive is synonymous with being grossly negligent.
Mukasey moves on the misdemeanor statute. It requires only the knowing removal of classified documents to an unauthorized location.
The facts Comey recited show that a reasonable prosecutor could charge under this statute. Clinton removed classified documents to an unauthorized location — her unsecured email system. She did so knowingly. As Comey said, many of the documents were marked classified at the time. Clinton even had the classified markings removed in at least one instance.
Mukasey also refutes Comey’s claim — and the only argument he advanced for not recommending prosecution — that cases like Clinton’s have never been prosecuted:
[A]lthough the FBI may not have been involved, there are indeed reported felony prosecutions of soldiers for putting copies of classified documents in a gym bag and then not returning them out of fear of discovery; placing classified documents in a friend’s desk drawer and forgetting them; tossing documents meant to be destroyed in a dumpster rather than in the appropriate facility.
It would be one thing, albeit incorrect in my view, if Comey had said this is a close case, but I don’t think, on balance, that DOJ should prosecute. It’s quite another to say that no reasonable prosecutor would bring the case.
Had Comey made the first statement, he have would retained credibility. But in that event, Dana Milbank and his fellow lefty hacks would not have been able to declare that the decision not to prosecute Clinton is a slam dunk.