Full disclosure: After graduating from Harvard Law School in 2001, I practiced criminal law in multiple jurisdictions over the following seven years, representing more than 2,000 criminal defendants in all. While I supported and voted for Bernie Sanders during the Democratic primary, I’m aware that Sanders is likely to endorse Clinton next week and ― having voted for the Democrat in every election I’ve ever voted in ― I likewise plan to vote for Hillary Clinton if her major-party opponent is Donald Trump come November. So if your reaction to this article in any way depends on the theory that I’m something other than a lifelong Democrat who currently plans to vote for Hillary Clinton in the fall, please reconsider that position.
Having said the above, and speaking as a long-time criminal attorney, what I heard discussed on July 7th, 2016 during FBI Director James Comey’s testimony before Congress in no way resembles the criminal justice system I worked in as a public defender between 2000 and 2007. In representing more than 2,000 indigent defendants in multiple jurisdictions, neither the values nor practices I heard described by Director Comey were at all familiar to me. I feel compelled to speak out about this in part because Comey’s testimony before Congress coincides with the deaths of Alton Sterling and Philando Castile ― not to mention scores of other highly publicized shootings of unarmed black men by police officers ― and I have not yet seen anyone draw the connection between the differential treatment poor (or any) black men receive in our criminal justice system and the disparately favorable treatment rich and powerful white people like Hillary Clinton do. But Director Comey’s gymnastic rewriting of what it means to prosecute crimes in America, just in time to rescue Hillary Clinton’s political career, is so unsettling that not speaking out about it isn’t an option. That’s particularly true because it gives me a chance, also, to discuss the recent focus on how black lives are honored ― or not honored ― in the criminal justice system. That conversation, which America is now having, is, much like the blunt and legally sound analysis of Clinton’s email troubles we’re finally getting in major media, long overdue.
So here are a few of the ways that America, particularly well-heeled white America, was ill-served by Director Comey’s testimony before Congress ― regardless of your position on whether Hillary Clinton being indicted for federal crimes would be, in general terms, a positive or negative thing for American politics.
1. According to Comey, Clinton committed multiple federal felonies and misdemeanors. Many people will miss this in the wash of punditry from non-attorneys in the mainstream media that has followed Comey’s public remarks and Congressional testimony.
The issue for Comey wasn’t that Clinton hadn’t committed any federal crimes, but that in his personal opinion the federal felony statute Clinton violated (18 U.S.C. 793f) has been too rarely applied for him to feel comfortable applying it to Clinton. This is quite different from saying that no crime was committed; rather, Comey’s position is that crimes were committed, but he has decided not to prosecute those crimes because (a) the statute he focused most on has only been used once in the last century (keeping in mind how relatively rare cases like these are in the first instance, and therefore how rarely we would naturally expect a statute like this to apply in any case), and (b) he personally believes that the statute in question might be unconstitutional because, as he put it, it might punish people for crimes they didn’t specifically intend to commit (specifically, it requires only a finding of "gross negligence," which Comey conceded he could prove). Comey appears to have taken the extraordinary step of researching the legislative history of this particular criminal statute in order to render this latter assessment.
The reality is that prosecutors don’t normally consider the legislative history or possible unconstitutionality of criminal statutes. Why? Because that’s not their job. Their job is to apply the laws as written, unless and until they are superseded by new legislation or struck down by the judicial branch. In Comey’s case, this deep dive into the history books is even more puzzling as, prior to Attorney General Loretta Lynch unethically having a private meeting with Bill Clinton on an airport tarmac, Comey wasn’t even slated to be the final arbiter of whether Clinton was prosecuted or not. He would have been expected, in a case like this, to note to the Department of Justice’s career prosecutors that the FBI had found evidence of multiple federal crimes, and then leave it to their prosecutorial discretion as to whether or not to pursue a prosecution. But more broadly, we must note that when Comey gave his public justification for not bringing charges ― a public justification in itself highly unusual, and suggestive of the possibility that Comey knew his inaction was extraordinary, and therefore felt the need to defend himself in equally extraordinary fashion ― he did not state the truth: that Clinton had committed multiple federal crimes per statutes presently on the books, and that the lack of a recommendation for prosecution was based not on the lack of a crime but the lack of prosecutorial will (or, as he might otherwise have put it, the exercise of prosecutorial discretion).
The danger here is that Americans will now believe many untrue things about the executive branch of their government. For instance, watching Comey’s testimony one might believe that if the executive branch exercises its prosecutorial discretion and declines to prosecute crimes it determines have been committed, it means no crimes were committed. In fact, what it means (in a case like this) is that crimes were committed but will not be prosecuted. We can say, accurately, that the judgment of the FBI in its investigation into Clinton and her associates ― and Comey confirmed Clinton was indeed a “subject” of the investigation ― is that Clinton is a criminal. She simply shouldn’t, in the view of the FBI, be prosecuted for her crimes. Prosecutorial discretion of this sort is relatively common, and indeed should be much more common when it comes to criminal cases involving poor Americans; instead, we find it most commonly in law enforcement’s treatment of Americans with substantial personal, financial, sociocultural, and legal resources.
Americans might also wrongly believe, watching Comey’s testimony, that it is the job of executive-branch employees to determine which criminal statutes written by the legislative branch will be acknowledged. While one could argue that this task does fall to the head of the prosecuting authority in a given instance ― here, Attorney General Loretta Lynch; had an independent prosecutor been secured in this case, as should have happened, that person, instead ― one could not argue that James Comey’s role in this scenario was to decide which on-the-books criminal statutes matter and which don’t. Indeed, Comey himself said, during his announcement of the FBI’s recommendation, that his role was to refer the case to the DOJ for a “prosecutive decision” ― in other words, the decision on whether to prosecute wasn’t his. His job was only to determine whether criminal statutes on the books had been violated.
By this test, Comey didn’t just not do the job he set out to do, he wildly and irresponsibly exceeded it, to the point where its original contours were unrecognizable. To be blunt: by obscuring, in his public remarks and advice to the DOJ, the fact that criminal statutes had been violated ― in favor of observing, more broadly, that there should be no prosecution ― he made it not just easy but a fait accompli for the media and workaday Americans to think that not only would no prosecution commence, but that indeed there had been no statutory violations.
Which there were.
Americans might also wrongly take at face value Comey’s contention that the felony statute Clinton violated was unconstitutional ― on the grounds that it criminalizes behavior that does not include a specific intent to do wrong. This is, as every attorney knows, laughable. Every single day in America, prosecutors prosecute Americans ― usually but not exclusively poor people ― for crimes whose governing statutes lack the requirement of “specific intent.” Ever heard of negligent homicide? That’s a statute that doesn’t require what lawyers call (depending on the jurisdiction) an “intentional” or “purposeful” mental state. Rather, it requires “negligence.” Many other statutes require only a showing of “recklessness,” which likewise is dramatically distinct from “purposeful” or “intentional” conduct. And an even larger number of statutes have a “knowing” mental state, which Comey well knows ― but the average American does not ― is a general- rather than specific-intent mental state (mens rea, in legal terms).
And the term "knowingly" is absolutely key to the misdemeanors Comey appears to concede Clinton committed, but has declined to charge her for.
To discuss what "knowingly" means in the law, I'll start with an example. When I practiced criminal law in New Hampshire, it was a crime punishable by up to a year in jail to “knowingly cause unprivileged physical contact with another person.” The three key elements to this particular crime, which is known as Simple Assault, are “knowingly,” “unprivileged,” and “physical contact.” If a prosecutor can prove each of these elements beyond a reasonable doubt, the defendant could, at the discretion of a judge, find themselves locked in a cage for a year. “Physical contact” means just about exactly what you’d expect, as does “unprivileged” ― contact for which you have no claim of privilege, such as self-defense, defense of another, permission of the alleged victim, and so on. But what the heck does “knowingly” mean? Well, as any law student can tell you, it means that you were aware of the physical act you were engaged in, even if you didn’t intend the consequences that act caused. For instance, say you’re in the pit at a particularly raucous speed-metal concert, leaping about, as one does, in close proximity with many other people. Now let’s say that after one of your leaps you land on a young woman’s foot and break it. If charged with Simple Assault, your defense won’t be as to your mental state, because you were “knowingly” leaping about, even if you intended no harm in doing so. Instead, your defense will probably be that the contact (which you also wouldn’t contest) was “privileged,” because the young lady had implicitly taken on, as had you, the risks of being in a pit in the middle of a speed-metal concert. See the difference between knowingly engaging in a physical act that has hurtful consequences, and “intending” or having as your “purpose” those consequences? Just so, I’ve seen juveniles prosecuted for Simple Assault for throwing food during an in-school cafeteria food fight; in that instance, no one was hurt, nor did anyone intend to hurt anybody, but “unprivileged physical contact” was “knowingly” made all the same (in this case, via the instrument of, say, a chicken nugget).
So, my first point: for Comey to imply that there is any prosecutor in America uncomfortable with the “constitutionality” of criminal statutes predicated on “negligent,” “reckless,” or “knowing” mental states is not just laughable but an insult to both the prosecutorial class and our entire criminal justice system. Whatever issue Comey may have had with the felony statute he agrees Clinton violated, that wasn’t it.
What about the misdemeanor statute?
Well, there's now terrifying evidence available for public consumption to the effect that Director Comey doesn’t understand the use of the word “knowingly” in the law ― indeed, understands it less than even a law student in his or her first semester would. Just over an hour (at 1:06) into the six-hour C-SPAN video of Comey’s Congressional testimony, Representative Cynthia Lummis (R-WY) makes a brief but absolutely unimpeachable case that, using the term “knowingly” as I have here and as it is used in every courtroom in America, Secretary Clinton committed multiple federal misdemeanors inasmuch as she, per the relevant statute (Title 18 U.S.C. 1924), “became possessed of documents or materials containing classified information of the United States....and knowingly removed such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location.” Comey, misunderstanding the word “knowingly” in a way any law school student would scream at their TV over, states that the FBI would still, under that statutory language, need to prove specific intent to convict Clinton of a Title 18 U.S.C. 1924 violation. Lummis points out that Comey is dead wrong ― and she’s right, he is wrong. Per the above, all Clinton had to be aware of is that (a) she was in possession of classified documents, and (b) she had removed them to an unauthorized location. Comey admits these two facts are true, and yet he won’t prosecute because he’s added a clause that’s not in the statute. I can’t emphasize this enough: Comey makes clear with his answers throughout his testimony that Clinton committed this federal misdemeanor, but equally makes clear that he didn’t charge her with it because he didn’t understand the statute. (At 1:53 in the video linked to above, Representative Ken Buck of Colorado goes back to the topic of Title 18 U.S.C. 1924, locking down that Comey is indeed deliberately adding language to that federal criminal statute that quite literally is not there.)
Yes, it’s true. Watch the video for yourself, look up the word “knowingly” in Black’s Law Dictionary, and you’ll see that I’m right. This is scary stuff for an attorney like me, or really for any of us, to see on television ― a government attorney with less knowledge of criminal law than a first-year law student.
2. Comey has dramatically misrepresented what prosecutorial discretion looks like. The result of this is that Americans will fundamentally misunderstand our adversarial system of justice.
Things like our Fourth and Fifth Amendment are part and parcel of our “adversarial” system of justice. We could have elected, as a nation, to have an “inquisitorial” system of justice ― as some countries in Europe, with far fewer protections for criminal defendants, do ― but we made the decision that the best truth-seeking mechanism is one in which two reflexively zealous advocates, a prosecutor and a defense attorney, push their cases to the utmost of their ability (within certain well-established ethical strictures).
James Comey, in his testimony before Congress, left the impression that his job as a prosecutor was to weigh his ability to prove a case beyond a reasonable doubt not as a prosecutor, but as a member of a prospective jury. That’s not how things work in America; it certainly, and quite spectacularly, isn’t how it works for poor black men. In fact, what American prosecutors are charged to do is imagine a situation in which (a) they present their case to a jury as zealously as humanly possible within the well-established ethical code of the American courtroom, (b) all facts and inferences are taken by that jury in the prosecution’s favor, and then (c) whether, given all those conditions, there is a reasonable likelihood that all twelve jurors would vote for a conviction.
That is not the standard James Comey used to determine whether to prosecute Hillary Clinton.
What Comey did was something else altogether.
First he asked, “What would other prosecutors do?” That’s not a question prosecutors are charged to ask, and we now see why: as Comey himself concedes, countless prosecutors have already come out in public to say that, had they been investigating Clinton, they would have prosecuted her. A standard for prosecutorial discretion in which you weigh what others in your shoes might do based on some sort of a census leads immediately to madness, not just for the reasons I’m articulating here but many others too numerous to go into in detail in this space.
The second thing Comey did was ask, “Am I guaranteed to win this case at trial?” Would that this slowed the roll of prosecutors when dealing with poor black men! Instead, as I discuss later on, prosecutors ― via the blunt instrument of the grand jury ― usually use the mere fact of misdemeanor or felony charges against a defendant as a mechanism for ending a case short of trial. Even prosecutors who ultimately drop a case will charge (misdemeanor) or indict (felony) it first, if only to give themselves time ― because defendants do have speedy trial rights, and statutes of limitation do sometimes intercede ― to plan their next move.
Third, Comey imagined his case at trial through the following lens: “How would we do at trial if the jury took every fact and presumption ― as we already have ― in Clinton’s favor?” Indeed, I’m having more than a hard time ― actually an impossible time ― finding a single unknown or unclear fact that Comey took in a light unfavorable to Clinton (including, incredibly, the facts that became unknowable because of Clinton’s own actions and evasions). Instead, Hillary was given the benefit of the doubt at every turn, so much so that it was obvious that the only evidence of “intent” Comey would accept was a full confession from Clinton. That’s something prosecutors rarely get, and certainly (therefore) never make a prerequisite for prosecution. But Comey clearly did here.
I have never seen this standard used in the prosecution of a poor person. Not once.
3. Comey left the indelible impression, with American news-watchers, that prosecutors only prosecute specific-intent crimes, and will only find a sufficient mens rea (mental state) if and when a defendant has confessed. Imagine, for a moment, if police officers only shot unarmed black men who were in the process of confessing either verbally (“I’m about to pull a gun on you!”) or physically (e.g., by assaulting the officer). Impossible to imagine, right? That’s because that’s not how this works; indeed, that’s not how any of this works. Prosecutors, like police officers, are, in seeking signs of intent, trained to read ― and conceding here that some of them do it poorly ― contextual clues that precede, are contemporaneous with, and/or follow the commission of a crime.
But this apparently doesn’t apply to Hillary Clinton.
It would be easier to identify the contextual clues that don’t suggest Clinton had consciousness of guilt than those that do ― as there are exponentially more of the latter than the former. But let’s do our best, and consider just a few of the clear signs that Clinton and her team, judging them solely by their words and actions, knew that what they were doing was unlawful.
For instance, Clinton repeatedly said she used one server and only one device ― not that she thought that that was the correct information, but that she knew it was. Yet the FBI found, per Comey’s July 5th statement, that Clinton used “several different servers” and “numerous mobile devices.” So either Clinton didn’t know the truth but pretended in all her public statements that she did; or she was given bad information which she then repeated uncritically, in which case a prosecutor would demand to know from whom she received that information (as surely that person would know they’d spread misinformation); or she knew the truth and was lying. A prosecutor would want clear, on-the-record answers on these issues; instead, Comey let other FBI agents have an unrecorded, untranscripted interview with Clinton that he himself didn’t bother to attend. It’s not even clear that that interview was much considered by the FBI; Comey declared his decision just a few dozen hours after the interview was over, and word leaked that there would be no indictment just two hours after the interview. Which, again, incredibly ― and not in keeping with any law enforcement policy regarding subject interviews I’m aware of ― was unrecorded, untranscripted, unsworn, and unattended by the lead prosecutor.
This in the context of a year-long investigation for which Clinton was the primary subject. Since when is an hours-long interview with an investigation’s subject so immaterial to the charging decision? And since when is such an interview treated as such a casual event? Since never. At least for poor people.
And since when are false exculpatory statements not strong evidence of intent?
Since never -- at least for poor people.
Comey found credible that Clinton had created her private basement server set-up purely out of “convenience”; yet he also found that old servers, once replaced, were “stored and decommissioned in various ways.” Wait, “various ways”? If Clinton was trying to create a streamlined, convenient personal process for data storage, why were things handled so haphazardly that Comey himself would say that the servers were dealt with “in various ways” over time? Just so, Comey would naturally want to test Clinton’s narrative by seeing whether or not all FOIA requests were fully responded to by Clinton and her staff in the four years she was the head of the State Department. Surely, Clinton and her staff had been fully briefed on their legal obligations under FOIA ― that’s provable ― so if Clinton’s “convenience” had caused a conflict with the Secretary’s FOIA obligations that would have been immediately obvious to both Clinton and her staff, and would have been remedied immediately if the purpose of the server was not to avoid FOIA requests but mere convenience. At a minimum, Comey would find evidence (either hard or testimonial) that such conversations occurred. And indeed, the evidence Comey turned up showed that Clinton’s staff was aware ― was repeatedly and systematically made aware ― that the Secretary’s set-up had the effect of evading FOIA requests. And Clinton was, by her own admission, clear with her inferiors that “avoiding access to the personal” was key to her private basement-server set-up. That’s very different from “convenience.”
Even if Comey believed that “avoiding access to the personal,” rather than “convenience,” was the reason for Clinton’s server set-up, that explanation would have imploded under the weight of evidence Clinton, her team, and her attorneys exercised no due caution whatsoever in determining what was “personal” and what was not personal when they were wiping those servers clean. If Clinton’s concern was privacy, there’s no evidence that much attention was paid to accurately and narrowly protecting that interest ― rather, the weight of the evidence suggests that the aim, at all times, was to keep the maximum amount of information away from FOIA discovery, not just “personal” information but (as Comey found) a wealth of work-related information.
But let’s pull back for a moment and be a little less legalistic. Clinton claimed the reason for her set-up was ― exclusively ― “convenience”; nevertheless, Comey said it took “thousands of hours of painstaking effort” to “piece back together” exactly what Clinton was up to. Wouldn’t that fact alone give the lie to the claim that this system was more “convenient” than the protocols State already had in place? “Millions of email fragments ended up in the server’s ‘slack space’,” Comey said of Clinton’s “convenient” email-storage arrangement. See the contradiction? How would “millions of email fragments ending up in a server’s ‘slack space’” in any way have served Clinton’s presumptive desire for both (a) convenience, (b) FOIA complicance, (c) a securing of her privacy, and (d) compliance with State Department email-storage regulations? Would any reasonable person have found this set-up convenient? And if not ― and Comey explicitly found not ― why in the world didn’t that help to establish the real intent of Clinton’s private basement servers? Indeed, had Clinton intended on complying with FOIA, presumably her own staff would have had to do the very same painstaking work it took the FBI a year to do. But FOIA requests come in too fast and furious, at State, for Clinton’s staff to do the work it took the FBI a year to do in a matter of days; wouldn’t this in itself establish that Clinton and her staff had no ability, and therefore well knew they had no intention, of acceding to any of the Department’s hundreds or even thousands of annual FOIA requests in full? And wouldn’t ignoring all those requests be not just illegal but “inconvenient” in the extreme? And speak to the question of intent?
It took Clinton two years to hand over work emails she was supposed to hand over the day she left office; and during that time, she and her lawyers, some of whom appear to have looked at classified material without clearance, deleted thousands of “personal” emails ― many of which turned out the be exactly the sort of work emails she was supposed to turn over the day she left State. In this situation, an actor acting in good faith would have (a) erred on the side of caution in deleting emails, (b) responded with far, far more alacrity to the valid demands of State to see all work-related emails, and (c) having erroneously deleted certain emails, would have rushed to correct the mistake themselves rather than seeing if they could get away with deleting ― mind you ― not just work emails but work emails with (in several instances) classified information in them. How in the world was none of this taken toward the question of intent? Certainly, it was taken toward the finding of “gross negligence” Comey made, but how in the world was none of it seen as relevant to Clinton’s specific intent also? Why does it seem the only evidence of specific intent Comey would’ve looked at was a smoking gun? Does he realize how few criminal cases would ever be brought against anyone in America if a “smoking gun” standard was in effect? Does anyone realize how many poor black men wouldn’t be in prison if that standard was in effect for them as well as Secretary Clinton?
4. Comey made it seem that the amount and quality of prosecutorial consideration he gave Clinton was normal. The mere fact that Comey gave public statements justifying his prosecutorial discretion misleads the public into thinking that, say, poor black men receive this level of care when prosecutors are choosing whether to indict them.
While at least he had the good grace to call the fact of his making a public statement “unusual” ― chalking it up to the “intense public interest” that meant Clinton (and the public) “deserved” an explanation for his behavior ― that grace ultimately obscured, rather than underscored, that what Comey did in publicly justifying his behavior is unheard of in cases involving poor people. In the real America, prosecutors are basically unaccountable to anyone but their bosses in terms of their prosecutorial discretion, as cases in which abuse of prosecutorial discretion is successfully alleged are vanishingly rare. Many are the mothers, fathers, sisters, and brothers of poor black men who would love to have had their sons’ (or brothers’, or fathers’) over-charged criminal cases explained to them with the sort of care and detail Hillary Clinton naturally receives when she’s being investigated. Clinton and the public “deserve” prosecutorial transparency when the defendant is a Clinton; just about no one else deserves this level of not just transparency but also ― given the year-long length of the FBI investigation ― prosecutorial and investigative caution.
What’s amazing is how little use Comey actually made of all the extra time and effort. For instance, on July 5th he said that every email the FBI uncovered was sent to the “owning” organization to see if they wanted to “up-classify” it ― in other words, declare that it should have been classified at the time it was sent and/or received, even if not marked that way at the time. One might think Comey would want this information, the better to determine Clinton’s intent with respect to those emails (i.e., given Clinton’s training, knowledge, and experience, how frequently did she “miss” the classified nature of an email, relative to the assessment of owning agencies that a given email was effectively and/or should have been considered classified ― even if not marked so ― at the time Clinton handled it?) Keep in mind, here, that certain types of information, as Clinton without a doubt knew, are “born classified” whether marked as such or not. And yet, just two days after July 5th, Comey testified before Congress that he “didn’t pay much attention” to “up-classified” emails. Why? Because, said Comey, they couldn’t tell him anything about Clinton’s intent. Bluntly, this is an astonishing and indeed embarrassing statement for any prosecutor to make.
Whereas every day knowledge and motives are imparted to poor black men that are, as the poet Claudia Rankine has observed, purely the product of a police officer’s “imagination,” the actual and indisputable knowledge and motives and ― yes ― responsibilities held by Clinton were “downgraded” by Comey to that of merely an average American. That is, despite the fact that Clinton was one of the most powerful people on Earth, charged with managing an agency that collects among the highest number of classified pieces of information of any agency anywhere; despite the fact that Clinton’s agency had the strictest policies for data storage for this very reason; despite the fact that State is, as Clinton well knew, daily subjected to FOIA requests; despite all this, Comey actually said the following: “Like many email users, Secretary Clinton periodically deleted emails...”
How in the world does the “many email users” standard come into play here? Clinton’s server, unlike anyone else’s server, was set up in a way that permitted no archiving, an arrangement that one now imagines led (in part) to the person who set up that server taking the Fifth more than a hundred times in interviews with the FBI; even assuming Clinton didn’t know, and didn’t request, for her server to be set up in this astonishing way ― a way, again, that her own employees believe could incriminate them ― how in the world could she have been sanguine about deleting emails “like many email users” when the agency she headed had completely different and more stringent protocols and requirements for data storage than just about any government agency on Earth? Just so, once it was clear that Clinton had deleted (per Comey) “thousands of emails that were work-related” instead of turning them over to State, in what universe can no intent be implied from the fact that her attorneys purged 30,000 emails simply by looking at their headers? At what point does Clinton, as former Secretary of State, begin to have ill intent imputed to her by not directing her attorneys to actually read emails before permanently destroying them and making them unavailable to the FBI as evidence? If you were in her situation, and instead of saying to your team either (a) “don’t delete any more emails,” or (b) “if you delete any emails, make sure you’ve read them in full first,” would you expect anyone to impute “no specific intent” to your behavior?
The result: despite saying she never sent or received emails on her private basement server that were classified “at the time,” the FBI found that 52 email chains on Clinton’s server ― including 110 emails ― contained information that was classified at the time (eight chains contained “top secret” information; 36, “secret” information; and another eight “confidential” information). Moreover, Clinton’s team wrongly purged ― at a minimum ― “thousands” of work-related emails. (And I’m putting aside entirely here the 2,000 emails on Clinton’s server that were later “up-classified.”) At what point does this harm become foreseeable, and not seeing it ― when you’re one of the best-educated, smartest, most experienced public servants in U.S. history, as your political team keeps reminding us ― become evidence of “intent”? Comey’s answer? Never.
Indeed, Comey instead makes the positively fantastical observation that “none [of the emails Clinton didn’t turn over but was supposed to] were intentionally deleted.” The problem is, by Comey’s own admission all of those emails were intentionally deleted, under circumstances in which the problems with that deletion would not just have been evident to “any reasonable person” but specifically were clear ― the context proves it ― to Clinton herself. During her four years as Secretary of State Clinton routinely expressed concern to staff about her own and others’ email-storage practices, establishing beyond any doubt that not only was Clinton’s literal key-pressing deliberate ― the “knowing” standard ― but also its repeated, systemic effect was fully appreciated by her in advance. Likewise, that her attorneys were acting entirely on their own prerogative, without her knowledge, is a claim no jury would credit.
Clinton’s attorneys worked Clinton’s case in consultation with Clinton ― that’s how things work. In other words, Clinton’s lawyers are not rogue actors here. So when Comey says, “They [Clinton and her team] deleted all emails they did not produce for State, and the lawyers then cleaned their devices in such a way as to preclude complete forensic recovery,” we have to ask, what possible reason would an attorney have for wiping a server entirely within their control to ensure that no future court order could access the permanently deleted information? In what universe is such behavior not actual consciousness of guilt with respect to the destruction of evidence? Because we must be clear: Comey isn’t saying Clinton and her lawyers accidentally put these emails outside even a hypothetical future judicial review; they did so intentionally.
There’s that word again.
The result of these actions? The same as every other action Clinton took that Comey somehow attributes no intent to: a clear legal benefit to Clinton and a frustration, indeed an obstruction, of the FBI’s investigation. As Comey said on July 5th, the FBI can’t know how many emails are “gone” (i.e., permanently) because of Clinton and her team’s intentional acts after-the-fact. So Comey is quite literally telling us that the FBI couldn’t conclude their investigation with absolute confidence that they had all the relevant facts, and that the reason for this was the intentional destruction of evidence by the subject of the investigation at a time when there was no earthly reason to destroy evidence except to keep it from the FBI.
In case you’re wondering, no, you don’t need a legal degree to see the problem there.
As an attorney, I can’t imagine destroying evidence at a time I knew it was the subject of a federal investigation. And if I ever were to do something like that, I would certainly assume that all such actions would later be deemed “intentional” by law enforcement, as my intent would be inferred from my training, knowledge, and experience as an attorney, as well as my specific awareness of a pending federal investigation in which the items I was destroying might later become key evidence. That Clinton and her team repeatedly (and falsely) claimed the FBI investigation was a mere “security review” ― yet another assertion whose falseness was resoundingly noted by Comey in his public statements ― was clearly a transparent attempt to negate intent in destroying those emails. (The theory being, “Well, yes, I destroyed possible evidence just by looking at email headers, but this was all just a ‘security review,’ right? Not a federal investigation? Even though I knew the three grounds for referral of the case to the FBI, and knew that only one of them involved anything like a ‘security review’?”)
And certainly, none of this explains Comey’s (again) gymnastic avoidance of stating the obvious: that crimes were committed.
Listen to his language on July 5th: “Although we did not find clear evidence that Clinton or her colleagues intended to violate laws governing the handling of classified information” (emphasis in original) ― actually, let’s stop there. You’d expect the second half of that sentence to be something like, “...they nevertheless did violate those laws, despite not intending to.” It’s the natural continuation of the thought. Instead, Comey, who had prepared his remarks in advance, finished the thought this way: “....there is evidence that they were extremely careless with very sensitive, highly classified information” (emphasis in original).
Note that Comey now uses the phrase “extremely careless” instead of “gross negligence,” despite using the latter phrase ― a legal phrase ― at the beginning of his July 5th remarks. That matters because at the beginning of those remarks he conceded “gross negligence” would lead to a statutory violation. So why the sudden shift in language, when from a legal standpoint “extreme carelessness” and “gross negligence” are synonymous ― both indicating the presence of a duty of care, the failure to meet that duty, and moreover a repeated failure on this score? Comey also avoids finishing his sentence with the obvious thought: that they may not have intended to violate criminal statutes, but they did nonetheless. Remember that, just like our hypothetical raver may not have intended to commit a Simple Assault by stepping on that poor young woman’s foot, he nevertheless could be found to have done so; just so, had Comey accepted the statute as written, Clinton’s “gross negligence” would have forced him to end the above sentence with the finding of a statutory violation, even if there had been no “specific intent” to do so.
This is how the law works. For poor black men, just not for rich white women.
5. Comey, along with the rest of Congress, left the impression, much like the Supreme Court did in 2000, that legal analyses are fundamentally political analyses. Not only is this untrue, it also is unspeakably damaging to both our legal system and Americans’ understanding of that system’s operations.
I’m a staunch Democrat, but I’m also an attorney. Watching fellow Democrats twist themselves into pretzels to analyze Clinton’s actions through a farcically slapdash legal framework, rather than merely acknowledging that Clinton is a human being and, like any human being, can both (a) commit crimes, and (b) be replaced on a political ticket if need be, makes me sick as both a Democrat and a lawyer. Just so, watching Republicans who had no issue with George W. Bush declaring unilateral war in contravention of international law, and who had no issue with the obviously illegal behavior of Scooter Libby in another recent high-profile intel-related criminal case, acting like the rule of law is anything they care about makes me sick. Our government is dirty as all get-out, but the one thing it’s apparently clean of is anyone with both (a) legal training, and (b) a sense of the ethics that govern legal practice. Over and over during Comey’s Congressional testimony I heard politicians noting their legal experience, and then going on to either shame their association with that august profession or honor it but (in doing so) call into question their inability or unwillingness to do so in other instances.
When Comey says, “any reasonable person should have known” not to act as Clinton did, many don’t realize he’s quoting a legal standard ― the “reasonable person standard.” A failure to meet that standard can be used to establish either negligence or recklessness in a court of law. But here, Clinton wasn’t in the position of a “reasonable person” ― the average fellow or lady ― and Comey wasn’t looking merely at a “reasonableness” standard, but rather a “purposeful” standard that requires Comey to ask all sorts of questions about Clinton’s specific, fully contextualized situation and background that he doesn’t appear to have asked. One might argue that, in keeping with Clinton’s campaign theme, no one in American political history was more richly prepared ― by knowledge, training, experience, and innate gifts ― to know how to act properly in the situations Clinton found herself. That in those situations she failed to act even as a man or woman taken off the street and put in a similar situation would have acted is not indicative of innocence or a lack of specific intent, but the opposite. If a reasonable person wouldn’t have done what Clinton did, the most exquisitely prepared person for the situations in which Clinton found herself must in fact have been providing prosecutors with prima facie evidence of intent by failing to meet even the lowest threshold for proper conduct. Comey knows this; any prosecutor knows this. Maybe a jury would disagree with Comey on this point, but his job is to assume that, if he zealously advocates for this extremely powerful circumstantial case, a reasonable jury, taking the facts in the light most favorable to the government, would see things his way.
Look, I can’t possibly summarize for anyone reading this the silly nonsense I have seen prosecutors indict people for; a common saying in the law is that the average grand jury “would indict a ham sandwich,” and to be clear that happens not because the run-of-the-mill citizens who sit on grand juries are bloodthirsty, but because the habitual practice of American prosecutors is to indict first and ask questions later ― and because indictments are absurdly easy to acquire. In other words, I’ve seen thousands of poor people get over-charged for either nonsense or nothing at all, only to have their prosecutors attempt to leverage their flimsy cases into a plea deal to a lesser charge. By comparison, it is evident to every defense attorney of my acquaintance that I’ve spoken to that James Comey bent over backwards to not indict Hillary Clinton ― much like the hundreds of state and federal prosecutors who have bent over backwards not to indict police officers over the past few decades. Every attorney who’s practiced in criminal courts for years can smell when the fix is in ― can hear and see when the court’s usual actors are acting highly unusually ― and that’s what’s happened here. The tragedy is that it will convince Americans that our legal system is fundamentally about what a prosecutor feels they can and should be able to get away with, an answer informed largely, it will seem to many, by various attorneys’ personal temperaments and political prejudices.
No one in America who’s dedicated their life to the law can feel any satisfaction with how Hillary Clinton’s case was investigated or ultimately disposed of, no more than we can feel sanguine about prosecutors whose approach to poor black defendants is draconian and to embattled police officers positively beatific. What we need in Congress, and in prosecutor’s offices, are men and women of principle who act in accordance with their ethical charge no matter the circumstances. While James Comey is not a political hack, and was not, I don’t believe, in any sense acting conspiratorially in not bringing charges against Hillary Clinton, I believe that, much like SCOTUS did not decide in the 2000 voting rights case Bush v. Gore, Comey felt that this was a bad time for an executive-branch officer to interfere with the workings of domestic politics. Perhaps Comey had the best of intentions in not doing his duty; perhaps he thought letting voters, not prosecutors, decide the 2016 election was his civic duty. Many Democrats could wish the Supreme Court had felt the same way in 2000 with respect to the role of judges. But the fact remains that the non-indictment of Hillary Clinton is as much a stain on the fair and equal administration of justice as is the disparate treatment of poor black males at all stages of the criminal justice system. I witnessed the latter injustice close up, nearly every day, during my seven years working as a public defender; now America has seen the same thing, albeit on a very different stage, involving a defendant of a very different class and hue.
To have prosecuted Clinton, said Comey, he would need to have seen “clearly intentional and willful mishandling of classified information, or vast quantities of information exposed in such a way as to support an inference of intentional misconduct, or....efforts to obstruct justice...” When Comey concludes, “we do not see those things here,” America should ― and indeed must ― wonder what facts he could possibly be looking at, and, moreover, what understanding of his role in American life he could possibly be acting upon. The answers to these two questions would take us at least two steps forward in discussing how average Americans are treated by our increasingly dysfunctional system of justice.
Seth Abramson is the Series Editor for Best American Experimental Writing (Wesleyan University) and the author, most recently, of DATA (BlazeVOX, 2016).
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