I found several points in FBI Director Comey’s testimony today (and his statement on Tuesday) baffling. I only saw parts of his testimony today; if I missed testimony addressing any of these points, please forgive me. Here are a few that baffle me.
The imposition of an element of specific intent on section 793(f): where did this come from? Comey elaborated on this in his opening statement. I found it utterly unpersuasive. It sounded to me like a rationalization fabricated to produce the result he desired in this case. I’ll leave the commentary here to Andy McCarthy.
The FBI did not record or transcribe their little get-together with Clinton. The FBI did not put Clinton under oath. I assume they warned her that false statements to the FBI are nevertheless criminal. Can we see the agents’ summary (the so-called 302) of the interview?
The adoption of Clinton’s (fallback) talking point regarding the absence of classified markings on email conveying otherwise classified information also mystifies me. Why is that critical in this case? Does Clinton really not know classified information when she sees it? Did she not receive instruction on classified information when she assumed office as Secretary of State?
Did it not occur to her that she was exposing classified information on her private servers? Did the FBI ask her in their little get-together? What did she say?
The reference to prosecutorial precedent to override the text of the statute is another puzzling matter. Prosecutorial precedent is not like case law. If it is inconsistent with the text of a statute, what deference is it owed?
Comey cited one prosecution based on gross negligence in the past 100 years. But how many prosecutions in cases involving gross negligence in the handlilng of national defense information have the authorities passed on? I’d like to know the answer to that one.
Trey Gowdy is a former prosecutor who thought that the circumstantial evidence warranted an inference of intent (video below). Don’t miss this one.
As Marcellus said to Horatio: “Something is rotten in the state of Denmark.”
Let me add this observation. I take it from Comey’s testimony that if the FBI had applied the statute’s gross negligence standard for the mishandlng of national defense information, it would have recommended the prosecution of Madam Secretary. The FBI’s finding of gross negligence in this case ought to count for something somewhere.