Comey made the best of no-win situation

David F. Axelrod July 14, 2016
www.cincinnati.com

David F. Axelrod is a graduate of the University of Cincinnati, a partner in Shumaker, Loop & Kendrick, LLP’s Litigation Group and a former Assistant United States Attorney.

Before criticizing too harshly FBI Director James Comey’s recommendation against prosecuting former Secretary of State Hillary Clinton, it may be useful to examine all the considerations that informed his decision, including those unstated. Under all the circumstances, love or hate Hillary, acting with restraint while exposing all the facts was probably the most responsible thing to do.

The statute most often cited in connection with these events makes it a crime, through gross negligence, to permit classified information to be removed from its proper place of custody, delivered to unauthorized personnel, lost, stolen, abstracted or destroyed. Comey’s initial determination had to be whether Clinton’s conduct constituted gross negligence.

Clinton’s case appears to be nothing like that of retired CIA Director David Petraeus, who resigned in disgrace after sharing highly classified information with his lover and biographer and lying about it to the FBI. Comey has described the Petraeus case as “far worse” than Clinton’s.

Most cases have involved military personnel. In one case, the defendant left classified information in an unlocked drawer in his garage, where it was found by a moving company employee. In another, the defendant discarded classified materials in a dumpster outside his home where they were discovered by neighborhood children, while repeatedly certifying that he had destroyed the materials. In another, the defendant forgot classified materials in a friend’s room, where they were discovered by the friend’s roommate.

The most comparable case is probably that of former CIA Director John Deutch, who was found to have classified information on a home computer.  Deutch reportedly had agreed to plead guilty to a misdemeanor charge of mishandling classified information when President Bill Clinton (yes, the other Clinton) granted him a presidential pardon.

There are myriad other possible criminal charges, including both felonies and misdemeanors. The misdemeanor in Deutch’s case prohibits storing classified information at an unauthorized location. Clinton’s lawyers might disagree, but the statute certainly seems to apply, and its threatened use against Deutch suggests that has been the Justice Department’s historical view. The explanation for her not being charged under any of these statutes probably lies in Justice Department policy and, ultimately, considerations other than a strict application of the law.

As a former Justice Department official, Comey undoubtedly considered the Justice Department’s policies, which recognize that an individual may be charged criminally based on “probable cause,” but that “[m]erely because this requirement can be met in a given case does not automatically warrant prosecution.” They also mandate considering “all relevant considerations,” and admonish that “no prosecution should be initiated against any person unless the government believes that the person probably will be found guilty by an unbiased trier of fact.”

A jury would probably be instructed that to convict, it would have to find beyond a reasonable doubt that Clinton’s conduct was an extreme departure from what a reasonable person would do in the same situation. The systemic problems that Comey found in the State Department’s handling of classified information could make that difficult to prove. On the other hand, his conclusion that “no reasonable prosecutor would bring this case” is difficult to square with his description of her actions as “extremely careless,” which sounds suspiciously like gross negligence.

Other unspoken considerations must have informed Comey’s decision – especially the prospect that a Clinton indictment would almost certainly alter the course of the election. As a former federal prosecutor, it’s difficult to imagine Comey taking such dramatic action with less than an open-and-shut case. It would be disastrous to force Clinton out of the race, only to lose the case. It is only slightly more imaginable that Comey would alter the course of history based on misdemeanor charges.

If this was the basis for Comey’s recommendation, although political, it was also practical.  It is naive to believe that prosecutors don’t make such decisions all the time – or that they shouldn’t. Comey’s public explanation may reflect a judgment not to decide the election in one fell swoop, but rather to expose the facts and allow voters to make an informed decision. If so, perhaps he should have said so, and not have pretended that the decision was purely legal. Nonetheless, love Hillary or hate her, acting with restraint was probably the best Comey could do in a no-win situation.