While FBI Director James Comey may have excoriated Hillary Clinton for her “extremely careless” use of a personal email server during a press conference Tuesday, he still announced the intention of the FBI to recommend to the Department of Justice that no charges be pressed.
While Comey is a figure respected by both Republicans and Democrats alike, his decision didn’t go down so well with a lot of Americans. One of them is Andrew McCarthy — contributing editor at National Review, a former federal prosecutor and a “longtime friend” of Comey’s.
In a piece for National Review, McCarthy said that Comey was misinterpreting the law and that Clinton was clearly chargeable.
“There is no way of getting around this: According to Director James Comey (disclosure: a former colleague and longtime friend of mine), Hillary Clinton checked every box required for a felony violation of Section 793(f) of the federal penal code (Title 18),” McCarthy wrote.
With lawful access to highly classified information she acted with gross negligence in removing and causing it to be removed it from its proper place of custody, and she transmitted it and caused it to be transmitted to others not authorized to have it, in patent violation of her trust. Director Comey even conceded that former Secretary Clinton was ‘extremely careless’ and strongly suggested that her recklessness very likely led to communications (her own and those she corresponded with) being intercepted by foreign intelligence services.”
McCarthy argued that Comey’s statements — particularly those involving intent — were incorrect.
“All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice,” Comey said duringTuesday’s press conference. “We do not see those things here.”
“Director Comey recommended against prosecution of the law violations he clearly found on the ground that there was no intent to harm the United States,” he wrote.
“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,” he continued.
“The lack of intent to harm our country is irrelevant. People never intend the bad things that happen due to gross negligence.
“I would point out, moreover, that there are other statutes that criminalize unlawfully removing and transmitting highly classified information with intent to harm the United States. Being not guilty (and, indeed, not even accused) of Offense B does not absolve a person of guilt on Offense A, which she has committed.”
We’re certainly going to hear a lot more takes on this over the next few days, and even some of Comey’s closest friends have disputed his agency’s findings. We’ll see what comes of it.