Robert F. Jakubowicz: Comey gets to essence of email debate


PITTSFIELD >> Up until now, the media in their reporting and the political talking heads in their discussions had made a legal hash out of Hillary Clinton's alleged violation of federal rules and criminal laws by the use of her private email server when she was secretary of state. This manner of news reporting and commentary led Richard O. Lempert, in his March 20 column in "The American Prospect," to wonder about how little the reporters and pundits knew about the classification of material, the rules and laws governing this matter, and the implications of them for indicting Clinton.

The public has now finally heard from somebody who now knows a lot about the criminal law aspect of this case based on the evidence and knowledge of the law. FBI Director James B. Comey, after a year-long investigation by his agency, said he took the unusual step of making a public statement about this case and his agency's recommendation because of the "importance of the matter, which in his mind, called for "unusual transparency." That recommendation was that "no reasonable prosecutor" would file criminal charges in this case.

Just the facts

Why? Because the facts do not support a violation of federal criminal law in the mishandling or removal of classified material. Comey noted that in the cases that had been successfully prosecuted, there was a mix of intentionally mishandling such material, exposing a large quantify of such material, showing disloyalty to the United States, or obstructing justice. The FBI did not find these elements in this case.

But this is not the final word on whether Clinton will or will not be indicted because under our criminal justice system, the prosecutor makes that decision based on the evidence collected by law enforcement agencies like the FBI. FBI agents, as Comey notes, do have conversations with prosecutors, normally in private, about such a decision, but the prosecutor decides. That decision in this case would be made by the United States attorney in the state relevant to the crime, but because of its importance it will probably go to the Justice Department for consideration there.

Attorney General Loretta Lynch, who would have the final say, has said she would bow out because of her airport meeting with Bill Clinton. It is likely that one of the senior attorneys there would decide. All the government participants in investigating and potential prosecution of this case are under the charge of the attorney general.

I am sure that this will cause unfounded allegations by Clinton-haters of a conspiracy to rig the non-prosecution by the president, who is now campaigning for Hillary Clinton. Some critics of the way this matter is being handled point to the case of retired General and CIA Director David Petraeus to argue that he did the same thing Clinton did, but both are being treated differently.

Petraeus had a mix of classified material with personal notes in notebooks. He was well aware of this classified material. He gave this material to his biographer and then mistress for use as source material. When he was questioned about this matter by the FBI, he reportedly lied to its agents. It is clear that he intentionally and knowingly engaged in mishandling classified material. Comey in his statement noted that none of these important facts of such intentional and willful misconduct was present in the Clinton case

Comey did say that his agency found evidence that Clinton was "extremely careless" in handling classified material. The key element in the federal criminal laws penalizing the mishandling of such material is "knowingly and willfully" doing this and not causing it by "extremely careless" conduct. This is one of the big differences between actions by individuals being criminal or not, namely, the person's state of mind.

At most Clinton may have been on shaky ground by not complying with some federal regulations in the handling of classified material, but as noted by Lempart in his column, the relevant regulations in this case do not make such noncompliance a crime.

Bashing will continue

I think it is reasonable to conclude that Clinton did not violate any federal criminal law based on what evidence the FBI collected. She did not have the requisite intent of violating the law by either disclosing or using classified material prejudicial to the safety of the United States Nor did she have such intent to remove classified material in her possession without authority intending to keep it at an unauthorized location.

All the elements, including such intent, in a criminal law have to be proved beyond a reasonable doubt. And the evidence collected by the FBI discloses this problem with making the case against Clinton.

It is very likely that the prosecutors will follow the FBI's recommendation. This should end the matter as a legal issue of a criminal prosecution and should make it just an example of carelessness by Clinton as a government official. But I doubt it, given the passion of Donald Trump and his followers for demonizing Clinton.

Robert "Frank" Jakubowicz is a regular Eagle contributor.


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