Michael Gaynor
The key question FBI Director Comey was not asked
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By Michael Gaynor
July 8, 2016

If intent should not be read into the statute and the standard of proof were a preponderance of the evidence instead of beyond a reasonable doubt, do you believe that Clinton could have been successfully prosecuted?

On July 7, 2016, FBI Director James Comey testified for hours before an oversight committee of the House of Representative about his findings and recommendation in the investigation as to whether presumptive Democrat presidential nominee had committed any crime in connection with her treatment of classified information.

Comey came to explain and defend his findings and recommendation and appeared to be on top of his game for several hours. Then Chairman Jason Chaffetz elicited testimony from Comey that (1) he had not looked into whether Clinton's pertinent Congressional testimony had been perjurious and (2) he had not noticed any problem with Clinton having given lawyers without security clearance her email, including classified email, to review and destroy.

Elijah Cummings, the ranking Democrat, said that he believed that those lawyers had security clearance,

The truth is what it is, but even if those lawyers had the required security clearance, Comey came across looking bad or worse, notwithstanding Cummings' assurance that Comey's recommendation remained "intact."

Comey testified that there was "no basis to conclude that [Clinton] lied to the FBI," several of Clinton's public claims are untrue.

Comey reiterated that Clinton's email practices put America's secrets at risk, several of her public claims on the matter were "not true" and her actions constituted the "definition of carelessness.

Nevertheless, Comey insisted that (1) criminal charges should not have been pursued, (2) politics did not influence the FBI's investigation or decision to recommend against criminal prosecution, (3) no "double standard" had been applied and (4) "no reasonable prosecutor" would prosecute Clinton.

The gist of Comey's argument is that (1) he did not see evidence Clington and those with whom she corresponded "knew when they did it they were doing something that was against the law" and (2) even though the statute in question purports to permit prosecutions for gross negligence, the statute had not been successfully used for that purpose and a prosecution should not be brought unless criminal intent can be proven beyond a reasonable doubt.

Essentially Comey fears that it would be unconstitutional to prosecute for gross negligence, notwithstanding the language of the statute.

Prominent attorneys, such as Andrew McCarthy, former assistant United States attorney for the Southern District of New York, strongly disagree with Comey's recomendation.

See, e.g., "Andrew McCarthy: 'FBI Rewrote the Statute' to Give Hillary Clinton a Pass" (www.breitbart.com/2016-presidential-race/2016/07/06/andrew-mccarthy-fbi-rewrote-the-statute-to-give-hillary-clinton-a-pass/):

"McCarthy said he was 'disheartened' by Tuesday's events, adding, 'It was a spotlight on what is no longer a nation of laws, not of men.'

"He continued:
    I thought the case [Comey] laid out was as bulletproof as it gets. And it seemed to me when he got all the way down the field, he moved the goalposts. So he added elements that the government doesn't have to prove under the statute as Congress has written it in order to shrink from recommending that charges be brought. To my mind, that's difficult to square on a lot of levels.
"McCarthy also penned a piece for National Review arguing that Comey basically rewrote the statute to get around indicting Hillary:
    In essence, in order to give Mrs. Clinton a pass, the FBI rewrote the statute, inserting an intent element that Congress did not require. The added intent element, moreover, makes no sense: The point of having a statute that criminalizes gross negligence is to underscore that government officials have a special obligation to safeguard national defense secrets; when they fail to carry out that obligation due to gross negligence, they are guilty of serious wrongdoing. The lack of intent to harm our country is irrelevant. People never intend the bad things that happen due to gross negligence."
I agree with McCarthy.

I am not impressed with Comey's point that there was but one gross negligrnce prosecution under the statute since 1917, but at least I can understand that Comey thought he was upholding the Constitution by opposing prosecution

What I don't understand is why no one said this to Comey: I understand that you believe that Clinton could not be proven guilty beyond a reasonable doubt, because you believe prosecutors should read intent into the statute. If intent should not be read into the statute and the standard of proof were a preponderance of the evidence instead of beyond a reasonable doubt, do you believe that Clinton could have been successfully prosecuted?

Voters should know what Comey thinks about that and someone should have asked him.

© Michael Gaynor

 

The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)

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