On Thursday, FBI director James Comey will testify before the House Committee on Oversight and Government Reform about his agency’s decision not to recommend that Hillary Clinton be prosecuted for mis-handling confidential information.
Comey announced his recommendation on Tuesday in unusually public fashion, explaining that while the agency had found evidence that Clinton and her staff were “extremely careless,” it did not find clear evidence of intent to break the law.
The problem, however is that the statute under which Clinton was investigated, 18 U.S.C. § 793, requires only “gross negligence,” not intent, and for a very good reason: we do not want people to be careless with national security secrets.
Comey and the FBI were under great political pressure. Bill Clinton made a brazen visit to Attorney General Loretta Lynch last week, while President Barack Obama and Hillary Clinton made plans to campaign together, as if they knew the outcome.
Republicans have pointed out, correctly, that there appears to be one law for the Clintons and another for everyone else. But Democrats, too, have cause for complaint: Comey’s conclusions are damaging, but Clinton has no opportunity to refute them.
Each side is guaranteed to press these points during Thursday’s hearing.
But beyond the politics, there is still much that is unknown about the case. Only Comey can begin to provide answers.
And so the committee must ask these yes/no questions:
1. You have shown that Clinton lied under oath to Congress last October. She did not turn over “all” work-related emails, her lawyers did not read all of them, and some were marked classified. She has committed perjury, hasn’t she?
2. You said Clinton not only used private servers, and deleted work-related e-mails, but also did so “in such a way as to preclude complete forensic recovery.” That is a violation of federal records laws, and obstruction of justice, isn’t it?
3. We know from ongoing litigation brought by Judicial Watch that Clinton instructed her staff to destroy public records, including burning her daily schedules. The FBI has an obligation to investigate that destruction, doesn’t it?
4. Since “intent” is not part of the relevant statute, why did you decide it was critical? And even it were, given ample circumstantial evidence — including false statements under oath — the standard of intent has been reached, hasn’t it?
5. You said “we cannot find a [similar] case” that led to prosecution. There are several, such as the conviction of Bryan Nishimura, and the discharge of Marine Jason Brezler. The difference is Clinton is a presidential candidate, correct?
6. You have personally prosecuted ordinary people for much smaller offenses, including a man who sent a 23-word email encouraging staff to save subpoenaed documents. You’re applying a different standard to Clinton, aren’t you?
7. You said that “no reasonable prosecutor” would bring an indictment against Clinton or her associates. Yet several reasonable federal prosecutors — including a former Attorney General — disagree. That was premature, was it not?
8. The FBI does not decide prosecutions, but presents findings to the Attorney General. Yet you precluded any other decision by stating publicly “no reasonable prosecutor” would indict. You overstepped your authority, didn’t you?
9. You stated that you had “not coordinated or reviewed” your statement with anyone else. Yet the behavior of the Attorney General and former president, among others, raise serious concerns about such coordination, don’t they?
10. People with security clearance have believed, until now, they can be prosecuted if they are careless with classified information. Failing to prosecute Hillary Clinton weakens that deterrent, and sets a dangerous precedent, doesn’t it?
11. You stated that people who do what Clinton did are “often subject to security or administrative sanctions.” But she is no longer a public employee. Short of prosecution, there is no way of holding Hillary Clinton accountable, is there?
12. The Clinton Foundation failed to disclose some foreign donations during Clinton’s time as Secretary of State. The FBI is reportedly investigating public corruption charges as well. That still remains an open investigation, doesn’t it?
13. You made statements have that impugned Clinton’s competence and integrity. She will not have the opportunity to challenge the basis for those statements. It would have been better to grant Clinton her day in court, wouldn’t it?
These questions must be asked — and answers demanded. At a time when Black Lives Matter activists are raising questions about equal justice, Clinton’s non-prosecution further damages public trust in the rule of law.
Americans deserve the truth.