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 Comey passed on a bathroom break and Chairman Jason Chaffetz elicited testimony from him 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 it was bad for Comery. Even if those lawyers had the required security clearance, Comey came across looking bad, 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 plain 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 recommendation.
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.'
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 negligence prosecution under the statute since 1917 or slavish search for prosecutorial precedent when prior similar prosecution was not to be expected, but at least I can understand that Comey may have 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 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.
Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.
The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.
Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.