I think the line from the FBI director that “No Reasonable Prosecutor” would pursue a case against Hillary Clinton. This seems to me to be a pretty ballsy statement from him especially considering that the law is clearly against her, since it requires no element of intent. It seems to poison the well against anyone who would decide to prosecute the case since she can just point to the FBI’s statement as proof that she’s being unjustly prosecuted.
To me it seems that he’s exceeded the scope of his job by his pronouncement since his job isn’t to decide who to prosecute rather it is to gather evidence. I know this will get all sorts of partisan responses so I’d like to limit the discussion to should the FBI or Police make statements of this nature where they are basically daring prosecutors to disagree with them?
Has there ever been a case of such extreme negligence in the history of prosecutions regarding this law? If ever prosecution was called for this was it. The fact that she was secretary of state only compounds the issue, those to whom great responsibility was entrusted should be all the more responsible for ensuring good conduct.
On the procedure: Different offices and agencies are different.
I have no experience with how the FBI and US Attorneys do it, but in many kinds of enforcement investigations, it’s not at all uncommon for the (non-lawyer) investigator to either make a formal recommendation as whether or not to pursue enforcement, or even make the decision whether to the case is referred for enforcement or closed right there. (In either situation, of course the lawyers can also decide to not move forward).
There are tons of wrongdoings that no reasonable prosecutor would touch.
Say I cross someone’s property boundary to retrieve my cell-phone, which I accidentally dropped. Would the local D.A. really prosecute me for trespassing? Absurd.
The statute basically says if you intentionally release classified information you’ve committed a crime or if you release it through gross negligence. Basically Comey is saying her negligence isn’t “gross negligence.”
He has some pretty good evidence on his side–namely that in the entire history of this law only one time, ever, has someone been prosecuted under the gross negligence standard. As he said in front of the House, if they prosecuted Clinton for “gross negligence” it’d be only the second such case in 100 years. In his words, he thinks no prosecutor would want to open that can of words. Essentially regardless of what the law says, prosecutors, over a 100 year time span, have allowed the gross negligence aspect of the statute to fall into disuse. So there isn’t really much (aka just one case) case history to go on to start determining what a basis is for saying someone has committed “gross negligence” in this regard.
While Comey didn’t elaborate on what the other gross negligence case was, many believe it was the 2003/2004 case of FBI agent James J. Smith. He was a counterintelligence officer who specialized in Chinese counterintel. He had a sexual relationship with a Chinese national who ended up being a Chinese spy, and during their sexual relationship he sloppily allowed classified information to fall into her hands. But he wasn’t even convicted under the charge–he plead guilty to a different charge instead, ending his FBI career and getting a sentence of three months home confinement.
As part of the investigation into his case he also lied to the FBI (a factor also present in General Petraeus’s case.) The simple reality is there is no real precedent for charging someone with gross negligence for “simple bad security practices.”
Also just so it’s understood, Comey isn’t just the “top cop” at the FBI. He’s got a long and impressive legal resume. He worked for six years in private practice specializing in criminal law. He then worked as an Assistant U.S. Attorney for 5 years, actually prosecuting real crimes. Then he was promoted to U.S. Attorney for the Southern District of New York (essentially a managerial role, overseeing AUSAs and being involved in decisions like when to prosecute higher profile cases), then was promoted to Deputy Attorney General of the United States.
From 2005-2013 he was a private citizen again, and one of the things he did during that time was server as a Senior Research Scholar at Columbia School of Law, where he was a Hertog Fellow on National Security Law. Since 2013 he’s been the director of the FBI.
So while he may not be the world’s foremost expert on this topic, the list of people who are more qualified than him to say whether or not Hillary should be prosecuted under the law in question is pretty damned short.
If you are referring to the law that was brought up at the hearing yesterday (the Espionage Act of 1917), Comey stated yesterday that exactly one person in the last 99 years has been charged under this law without the element of intent, and that was in an actual case of espionage. He also stated that the law is still controversial to this day, and has significant constitutionality issues.
More details here:
ETA: ninja’d by Martin Hyde! I need to type faster…
Every election year, suckers fall victim to these attempts to divert topics for the candidates from REAL issues (like why is the U.S. giving billions of dollars of OUR MONEY to foreign countries) to these silly things like email, abortion, marriage, etc.
Don’t be a sucker! Ask the candidates about some REAL issues which will have an impact on your daily life.
Things you need daily are jobs, food, health care, roads, bridges, gasoline, etc.
How will this email thing affect your life - seems to have ended. How often will you have an abortion or get married each day???
Jobs and healthcare have been brought up plenty this election season. Infrastructure less so. But that doesn’t mean you should ignore rights issues because you don’t use them every day. You want them preserved for when you do need them. Besides, it’s been years and years since I needed healthcare, so by your reasoning I shouldn’t get “distracted” by that debate.