How the FBI Avoided Recommending Charges Against Hillary Clinton

Article Summary

The first section describes how FBI Director James Comey and the FBI’s Clinton report misled the public into believing that a mishandling of classified information charge was the only charge the FBI could recommend against Hillary Clinton. Director Comey said the Bureau could not prove Clinton’s intent to provide classified information to an enemy of the U.S. or other foreign power as required by the United State’s 100 year-old espionage law.

The second section names two federal statutes that FBI Director James Comey could have recommended charging Clinton with. Both the theft of government property and the concealment, destruction, and removal of government property statutes do not require intent for conviction. These two statutes dispute Comey’s statement that he could only recommend charges against Clinton if he could prove her intent.

The third and final section exposes FBI Director James Comey’s cover-up and his contrived reasons to not charge Clinton. Comey deliberately did not cite the specific statutes that he claimed Clinton did not violate. Comey also did not cite the specific mishandling of classified information cases he relied upon in his decision to forgo charges against Clinton. By omitting the specific statutes and prior espionage cases that the FBI used to reach its decision, it’s impossible to tell if the FBI and Comey followed the law and acted with good faith in the Clinton case.

The FBI’s Extremely Narrow Focus on Espionage Charges Deliberately Let Clinton Escape Prosecution

FBI Director James Comey’s own words show how he and his agency lied and misled the public by repeatedly saying the FBI could not recommend charging Hillary Clinton with mishandling classified information because the Bureau couldn’t prove Clinton’s “intent.”

The FBI told the public for a third time that the FBI only investigated Clinton’s mishandling of classified information when the agency released its Clinton report. “The FBI’s investigation focused on determining whether classified information was transmitted or stored on unclassified systems in violation of federal criminal statutes….” By acknowledging the FBI investigation exclusively focused on charging Clinton with mishandling classified information, the FBI simultaneously admitted it did not consider charging Clinton with violating other related federal laws.

When Director James Comey first announced no charges against Clinton, he said, “Our investigation looked at whether there is evidence classified information was improperly stored or transmitted on that personal system, in violation of a federal statute ….” During his testimony before a congressional committee, Comey said he couldn’t charge Clinton because of the requirement of intent in the 100 year-old espionage law. If the law was so antiquated, why did Comey focus the entire FBI’s investigation upon it? Could it be Comey used the outdated espionage law because it was the easiest way to let Clinton off the hook?

With few facts, Comey and the FBI made a determination at the start of its investigation that they would only charge Clinton with violating espionage laws. Since when does the FBI begin an investigation with only a few stringent laws to charge a defendant? In doing so, the FBI eliminated most of its pages from its playbook. FBI agents couldn’t possibly know what laws Clinton broke until after investigators accumulated and examined all of the evidence in the Clinton case.

Director Comey’s most dishonest and misleading statement occurred when he said, “Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case.” Every time Comey attempts to justify his decisions to forgo charges against Clinton, his reason involves the FBI’s inability to make espionage charges stick against Clinton. Comey acknowledged the seriousness of Clinton’s careless transmitting and storing classified information. If Comey’s assessment of Clinton’s mishandling classified information is true, why did Comey fail to seek other charges in which reasonable prosecutors would pursue?

Comey may use the excuse that the FBI was only asked to investigate Clinton’s mishandling of classified information as the reason for the sole focus on espionage charges against Clinton. According to the FBI report, the FBI launched a full investigation after receiving a referral from the US Intelligence Community Inspector General (ICIG). Often charges levied against defendants at the end of an investigation are very different than what investigators expected when they first started to investigate alleged wrongdoers. According to the FBI’s report, the investigation of Clinton never wavered from the initial espionage charges. The FBI’s tunnel vision in which the agency only saw Clinton’s possible violation of espionage laws allowed her to get away Scot-free.

Once the ICIG referred the Clinton case to the FBI, it was up to the FBI to investigate and recommend charges against Clinton as it saw fit. Instead, the FBI decided at the onset that it would only charge Clinton with espionage regardless if the FBI discovered she broke other laws. Every time Comey or the FBI said it couldn’t recommend charges against Clinton, Comey and the FBI did so without telling the public that they ignored other laws that prosecutors could have used to indict Clinton.

In the next section, I’ll discuss what those laws are.

Why Wasn’t Clinton Charged with Concealment, Destruction, Removal or Theft of Government Property?

In FBI Director Comey’s initial statement about not charging Clinton, Comey said, “In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts.” Comey’s statement is misleading and wrong.

Former CIA Director John Deutch’s mishandling of classified information is very similar to Clinton’s. Deutch stored classified information that he had mislabeled as unclassified on several of his laptop computers. Deutch’s agreement to plead guilty to a misdemeanor for mishandling classified information became unnecessary because then President Bill Clinton pardoned Deutch two days before Deutch was scheduled to formally enter his guilty plea. Both Deutch and Secretary Clinton kept classified information on their computers without planning to reveal their classified information to an enemy or foreign power, but only Clinton avoided facing criminal charges. Clinton’s mishandling of classified material was far worse than Deutch’s because of the sheer volume of information Clinton privately stored and because Clinton extensively used her private server and email system to circumvent the review of her work through the Freedom of Information Act.

Comey went on national television to tell the world that Edward Snowden must be apprehended and prosecuted for revealing classified information. Comey’s double standard for Snowden and Clinton are summed up in Snowden’s tweet: “Break classification rules for the public’s benefit, and you could be exiled. Do it for personal benefit, and you could be President.”

The FBI charged Snowden with 18 USC § 641, Theft of Government Property; 18 USC § 793(d) Unauthorized Communication of Defense Information; and 18 USC § 798(a)(3), Willful Communication of Classified Communications Intelligence to an Unauthorized Person. Let’s assume the last two Snowden charges are dissimilar to the facts of the Clinton case. However, the theft of government property clearly applies to Clinton.

Both Clinton and Snowden removed classified information electronically from secure government servers, though Clinton and Snowden had two very different reasons for taking electronic information from the government. For theft of government property prosecutors do not need to prove intent to get a conviction. As with Snowden, charging Clinton with theft of government property could have been a separate charge from the charges of mishandling classified information. Hence, it was possible for Comey to recommend charging Clinton with theft of government property without charging her with mishandling classified information that the FBI exclusively focused on.

All 33,000 emails Clinton sent and received while she was Secretary of State was the “intellectual property” of the U.S. government. Clinton intentionally setup and used a private server for her government email correspondence while she served as Secretary of State. Both classified and non-classified emails that Clinton wrote and stored on her private server were stolen from the government because her emails involving State Department work were the intellectual property of the federal government and open to public scrutiny. If each email Clinton wrote and stored on her private server were considered separate charges, Clinton could face thousands of theft charges.

Comey never considered charging Clinton with 18 USC § 2071 – concealment, removal, or destruction of government property. Comey could charge Hillary with utilizing her private server to conceal emails from the prying eyes of U.S, taxpayers, who have the legal right to request her emails through the Freedom of Information Act. This is the crux of the matter. Hillary removed most of her emails, and some government information from the State Department to her own private server system. Some of Hillary’s emails were destroyed, either when she changed equipment servers, by professionals she hired, or her staff at the State Department. It is widely reported that over 33,000 emails were deleted and that server hardware was bleached using sophisticated software. Moreover, Hillary directed staff or outsiders to physically destroy as many as 13 cellphones and iPad hardware devices with a hammer. As with the theft of government property, the FBI need not prove intent, if Hillary were charged with concealment, removal, or destruction of government property. Given these facts, no reasonable prosecutor could fail to charge Clinton with concealment, removal, and destruction of government property.

FBI Director James Comey, You’re Busted!

FBI Director James Comey is a very well-educated and highly experienced lawyer. During the course of his stint as Deputy Attorney General and U.S. Attorney, Comey was all about winning. He has one of hell of a track record. However, there is at least one disturbing thing about Comey’s winning ways: Comey obviously developed the knowledge and skill to lose a case and cover his tracks as he is clearly doing with the Clinton email investigation.

Comey secured a conviction of Martha Stewart for conspiracy and obstruction of justice, but didn’t even attempt to indict Hillary Clinton after 25 plus FBI agents worked tirelessly for over a year to gather a mountain of evidence against her. What does Comey sending Martha Stewart to prison and keeping Hillary Clinton on her path to the White House tell us about Comey’s decisions? Whose misdeeds were worse, Stewart who used inside trader information to avoid a $45,000 financial loss by selling 4,000 shares of stock in one day, or Clinton who set up an unsecured private server for 33,000 email correspondences and government data storage, including some classified information, for four years in violation of national security protocols and rules?

The extremely narrow focus of the FBI’s Clinton investigation was a crucial element of Comey’s deception. Comey put the sole spotlight on the intent of the former Secretary’s mishandling of classified information as an excuse to not charge Clinton. Comey made us falsely believe that if the FBI couldn’t recommend charging Clinton for mishandling classified information because the FBI couldn’t prove Clinton’s intent, that were no other laws to charge her with. We now know the FBI could have recommended charges against Clinton with other laws that did not require proof of Clinton’s intent to provide classified information to the U.S.’s enemies or foreign powers.

The Biggest Lies FBI Director Comey told us were Lies of Omission

Comey deliberately provided the most rudimentary information to make it appear as though the FBI properly investigated and closed the Clinton case. The truth is Comey purposely left out vital information—none of which was classified—that would have enabled members of congress, the media, and public to thoroughly review Comey’s and the FBI’s investigation of Clinton. Comey’s lies of omission are a critical part of, “Comey’s Cover-up.”

The first lie of omission below involves Comey and the FBI omitting the specific federal statutes the FBI considered in the Clinton case. The second lie of omission entails Comey and the FBI omitting the specific cases that Comey and the FBI relied upon to forgo Clinton charges. The third and fourth parts of Comey’s cover-up are the means Comey used to cover his tracks. Comey used non-disclosure agreements and the threat of lie detector tests to prevent any leaks and hide what the FBI did prior to announcing no Clinton charges. And in the fourth part of the Comey cover-up, the FBI used antiquated note taking for its Clinton interview to prevent anyone from actually hearing Clinton in her own words speak about her email scandal to the FBI agents questioning her.

Comey’s Coverup

Comey and the FBI repeatedly omitted the federal statutes that they considered charging Clinton with. Because Comey and the FBI did not tell us what specific statutes they considered against Clinton, we can’t verify if they acted in good faith and followed the law. Below are some examples of Comey and the FBI leaving out the specific statutes:

The FBI’s investigation focused on determining whether classified information was transmitted or stored on unclassified systems in violation of federal criminal statutes….

Our investigation looked at whether there is evidence classified information was improperly stored or transmitted on that personal system, in violation of a federal statute ….

Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case.

There is not one specific federal statute in the quotes above, or anywhere else in Comey’s statement, the FBI report, or Comey’s congressional testimony. You can’t tell a player without a scorecard. Neither can you tell Clinton’s guilt or innocence without knowing the specific statutes that the FBI cleared her of. None of the reasons Comey gave to not charge Clinton are valid because we don’t know the specific federal statutes Comey was talking about when he gave his reasons for his Clinton decision. We need both specific federal statutes and Comey’s explanations of why Clinton did not violate those statutes to make a decision of Clinton’s guilt or innocence.

2. In the statement Comey read in a press conference and later published online, he said that the FBI reviewed prior FBI mishandling classified information cases and compared them to the Clinton case. Comey omitted to tell us what specific cases the FBI reviewed when agents were considering charging Clinton. Without knowing the specific cases that Comey and the FBI examined, we can’t tell if the cases are or are not relevant to Clinton’s. Knowing the previous cases that Comey and the FBI relied upon is extremely important because Comey used the outcomes of prior mishandling of classified information cases as an excuse to not charge Clinton.

Below is Comey’s statement in which he omitted identifying the specific cases that the FBI reviewed.

In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. 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. We do not see those things here.

3. During the initial stages of Watergate, at least one FBI agent provided information to the press that led to the resignation of President Richard Nixon and prison terms for several members of Nixon’s White House staff. Washington Post reporters Bob Woodward and Carl Bernstein referred to their FBI source as “deep throat.” FBI Associate Director Mark Felt was identified as deep throat 30 years after the Watergate Hotel break-in. The FBI leak was critical to informing the press and raising the public’s awareness about the Watergate break in. Deep throat also provided critical information to congressional investigators. Without the FBI leak, there is a good chance President Nixon would not have had to resign and no members of his White House staff would have been charged in the Watergate scandal.

FBI Director Comey took extraordinary steps to prevent his agents from revealing FBI secrets such as what happened with deep throat and Watergate. Comey had all his agents working on the Clinton case sign non-disclosure agreements. Furthermore, Comey had all agents agree to take a polygraph exam if the FBI discovered a leak in the Clinton case. Had there been a FBI leak as there was with Watergate, congressional oversight and public pressure may have forced the FBI to move forward with recommending charges against Clinton. Comey’s extraordinary measures to prevent the revelation of any information on the Clinton case made it easier for Comey to not recommend any charges against Clinton.

4. Comey also required the FBI agents interviewing Clinton to take handwritten notes. Handwritten notes means all of Clinton’s statements were filtered through the FBI agents in the room with Clinton. Given how quickly the FBI announced no Clinton charges after the Clinton interview, there is a strong possibility that Comey already decided not to charge Clinton by the time his FBI agents interviewed her. FBI agents could have written notes when Clinton’s statements supported exonerating her, and the agents abandon their note taking when Clinton said something incriminating. One thing is for sure, if the FBI released a videotape of the Bureau’s Clinton interview instead of its agents’ notes, there would be no speculation about what FBI agents and Clinton said during Clinton’s interview. Clearly Comey did not want any videotape evidence of the Clinton interview because the videotape could have been used as evidence to prove that his decision to not charge Clinton was contrived.

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I thank Dr. Cody Sweet, Bill Sweet, and several other friends for their content and editorial suggestions for this article.