Yesterday, I watched James Comey’s testimony from start to finish (okay, I fast-forwarded through some of the questioning by Democrats). Comey came across well. In a better world, all government witnesses would answer questions as straightforwardly as he did.
Yet, Comey’s testimony continued to baffle me. Scott and I have discussed his seemingly nonsensical contention that more than gross negligence is required to establish a violation of a statute that expressly sets out a gross negligence standard.
Comey’s core defense for this baffling position is that because the statute has only been used once in its history, it would be unfair to use it to prosecute Hillary Clinton. But unfairness might be a problem only if individuals who committed violations under facts closely resembling the ones in Clinton’s case have been let off the hook. Comey pointed to no such case.
I want to focus, though, on Comey’s second major contention: that, assuming there is an intent requirement, no reasonable prosecutor would believe he could prove criminal intent beyond a reasonable doubt.
The threshold question is what must a potential defendant have intended to do. Comey used various, though not necessarily inconsistent, formulations. At one point he said a defendant must know she was doing something illegal. Later he said she must be “aware of the generally wrongful nature of [her] conduct.” Several times, Comey stated that a defendant need not be aware of a specific statute she is violating.
As Trey Gowdy said to Comey (who did not disagree), intent is almost never demonstrated directly, e.g., through a statement by the defendant that he intends to break the law. Rather, in most cases, it is established through circumstantial evidence, including through inferences.
In this case, the evidence of criminal intent seems powerful. Comey testified that Clinton signed the Sensitive Compartmented Information Nondisclosure Statement. By doing so, she acknowledged having been advised
that unauthorized disclosure, unauthorized retention, or negligent handling of SCI by me could cause irreparable injury to the United States or be used to advantage by a foreign nation.
In addition, Clinton
agree[d] that I will never divulge anything marked as SCI or that I know to be SCI to anyone who is not authorized to receive it without prior written authorization from the United States Government department or agency. . .that last authorized my access to SCI.
Anyone with half a brain — and certainly any lawyer who had served as a U.S. Senator and was now Secretary of State — would understand that conduct, such as the negligent handling of SCI, that could cause irreparable injury to the United States is a violation of U.S. law.
But we need not infer that Clinton understood this. The same document signed by Clinton states:
I have been advised that any unauthorized disclosure of SCI by me may constitute violations of United States criminal laws, including the provisions of Sections 793, 784, 798, and 952, Title 18, United States Code, and of Section 783(b), Title 50, United States Code. Nothing in this Agreement constitutes a waiver by the United States of the right to prosecute me for any statutory violation.
Clinton signed another document, the Classified Information Non-Disclosure Agreement. In language almost identical to that quoted above, it deals with unauthorized disclosure of classified information:
I have been advised that the unauthorized disclosure, unauthorized retention, or negligent handling of classified information by me could cause damage or irreparable injury to the United States or could be used to advantage by a foreign nation. I hereby agree that I will never divulge classified information to anyone unless: (a) I have officially verified that the recipient has been properly authorized by the United Government to receive it; or (b) I have been given prior written notice of authorization from the United States Government responsible for the classification of information or last granting me a security clearance that such disclosure is permitted. . . .
I have been advised that any unauthorized disclosure of classified by me may constitute a violation, or violations, of United States criminal laws, including the provisions of sections 641, 793, 794, 952 and 1924, title 18, United States Code, the provisions of section 783(b), title 50, United States Code; and the provisions of the Intelligence Identities Protection Act of 1982. I recognize that nothing in this Agreement constitutes a waiver by the United States of the right to prosecute me for any statutory violation.
Plainly, Clinton knew that the unauthorized disclosure, unauthorized retention, or negligent handling of SCI and/or classified information might be criminal conduct.
Comey repeatedly agreed that Clinton’s handling of such material was “extremely careless.” Thus it clearly was “negligent.” Nor has there been any suggestion that her disclosure and retention of such material was authorized.
Did Clinton know that she was disclosing, retaining, or negligently handling SCI or classified information? In public statements, she maintained that no such documents were on her server.
But Comey’s testimony confirms that this wasn’t true. And given the nature of some of the material, plus the markings on some of the documents, Clinton surely knew it wasn’t true.
Clinton’s untruthful statements about the nature of the documents on her server, as well as multiple other matters, are strong evidence that she knew she had mishandled classified information and SCI. Indeed, as Trey Gowdy pointed out to Comey, such false statements are themselves evidence of criminal intent. Gowdy explained (and Comey agreed) that false exculpatory statements are evidence of intent because they tend to show consciousness of guilt.
Gowdy also pointed to the fact that Clinton destroyed evidence and only turned over (some of) her documents to the State Department two years after she should have and only after Congress demanded that she do so.
All of this strengthens the argument that Clinton knew that documents on her server — documents she destroyed, documents she wouldn’t timely return to the State Department, documents she lied about — included some with SCI and classified information. And Clinton’s own signature shows that, to use Comey’s formulation of the criminal intent requirement, she was “aware of the generally wrongful nature” of her mishandling of these documents.
Comey’s statement that no reasonable prosecutor would conclude that criminal intent can be established in this case is baffling.