FBI Director James Comey’s explanation of why his agency didn’t recommend the prosecution of Hillary Clinton in the scandal over her use of a private e-mail system for official business during her tenure as secretary of state raised more questions than it resolved.
Thus, after going through the nature of the FBI’s investigation, he concluded that “Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case.”
Yet this sorting of evidence, we are told by criminal lawyers, is usually the purview of a grand jury, which decides whether there is probable cause to believe a crime was committed. One of the unanswered questions in this entire episode is why U.S. Attorney Preet Bharara – who is known for his high profile prosecutions and who has jurisdiction over the Clinton e-mail issue since the possible offenses occurred at the Clinton home in Chappaqua, New York, which is within his federal area of responsibility – didn’t convene a grand jury.
And there would surely have been grist for his grand jury mill, since, as Mr. Comey noted, “There were thousands of e-mails we found that were not among those produced to State…” That in itself sounds like she was withholding evidence.
Mr. Comey also said that “Only a very small number of the e-mails containing classified information bore markings indicating the presence of classified information. But even if information is not marked ‘classified’ in an e-mail, participants who know or should know that the subject matter is classified are still obligated to protect it.”
“Know or should know” is classic legal language suggesting criminal responsibility.
Recklessness with government secrets? Consider what Mr. Comey said:
With respect to potential computer intrusion by hostile actors, we did not find direct evidence that Secretary Clinton’s personal e-mail domain, in its various configurations since 2009, was successfully hacked. But, given the nature of the system and of the actors potentially involved, we assess that we would be unlikely to see such direct evidence. 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 email account extensively while outside the United States…. Given that combination of factors, we assess it is possible that hostile actors gained access to Secretary Clinton’s personal account.
Mr. Comey also said his investigators had found 110 e-mails that were classified information at the time they were sent or received. They also found, he said, an unspecified number of instances of top secret or secret information contained in 52 so-called e-mail chains
There was also destruction of e-mails by Clinton attorneys “in such a way as to preclude complete forensic recovery.” But we have “reasonable confidence there was no intentional misconduct.”
But again, sorting out these kinds of issues is typically the job of a grand jury.
Complicating this even further is the private meeting just days before Mr. Comey spoke between Attorney General Loretta Lynch, Mr. Comey’s boss, and Bill Clinton, supposedly to talk about their grandchildren.
This is not to say that Mrs. Clinton is clearly guilty of violating the law. It is to say, though, that it’s hard to think of anyone else who would have received the pass she just did.