Comey’s Volley, Or The Indictment That Wasn’t

One month before FBI Director James Comey announced his recommendation not to indict Hillary Clinton based on her use of a private email server, I tried to assess the prospect of indictment based on analysis of the known facts and applicable statutory provisions.  I concluded that because the facts and law presented clear probable cause she had violated subsection 793(f) of the Espionage Act, any colorable argument not to indict would depend on the exercise of prosecutorial discretion.

The text of Comey’s recommendation — as well as his testimony on Capitol Hill two days later — fully accords with my analysis and conclusion.

[Please scroll past Comey’s written and videotaped statement below for continuation of this article]

Comey stated that the FBI found “evidence of potential violations of the statutes regarding the handling of classified information,” and that Clinton and her agents were “extremely careless in their handling of very sensitive, highly classified information.”  A finding of extreme carelessness would seem well sufficient to establish “gross negligence,” which is the applicable mens rea under subsection 793(f), and which Black’s Law Dictionary defines as a “lack of slight diligence or care.”  But despite finding sufficient reason to believe that Clinton had violated a criminal statute — which is really another way of saying there is probable cause to indict — Comey recommended no indictment based on a weighing of “factors” outside the probable cause determination.  Two days later, in his testimony before the House Oversight & Government Reform Committee, Comey confirmed his recommendation to be grounded in an exercise of prosecutorial discretion as a “judgment call” based on the “entire circumstances.”

In other words, as my own analysis had suggested it might, prosecutorial discretion proved to be the prevailing argument in favor of not prosecuting Clinton.

But while the FBI recommendation’s substance was foreseeable, there were a number of radically unorthodox features to what Comey called his “unusual statement.”   Before one can appreciate the full legal and political significance of his recommendation, one must attempt to understand these irregularities.

 A Non-Prosecutor Urges Prosecutorial Discretion

To my knowledge, no one has remarked how strange it is that the head of the nation’s chief federal law enforcement agency, i.e., FBI Director Comey — rather than the chief prosecutor, Attorney General Loretta Lynch — performed the analysis of whether to exercise prosecutorial discretion with respect to Clinton.   From a legal perspective, this is highly atypical given that by its very nature, prosecutorial discretion is held by the prosecutorial authority and not a law enforcement agent.  When someone is arrested for a crime, we do not expect police officers to make the final decision on whether or not charges are brought — rather, the role of an investigative agency such as the FBI is to gather evidence and pass it on to the prosecutor, who then makes the legal decision on whether to institute criminal proceedings.

In this case, Comey’s recommendation was preceded by Lynch’s announcement, in Aspen on July 1, that she would follow the recommendation of the FBI and career prosecutors in the Justice Department in an effort to avoid the appearance of bias.  The context of Lynch’s announcement underscored its message, as it came in the wake of a controversial “chance” encounter between her and Bill Clinton at the Phoenix airport. Lynch’s announcement, and the concern with averting the air of impropriety, have been used to explain how Comey could unabashedly appear to “preempt” the Attorney General’s prosecutorial discretion.  Viewed through this lens, Comey assumed the mantle of prosecutorial discretion — which he then deployed to decide not to indict Clinton — by necessity, because he was delegated, from Lynch, the entire decision on whether or not to indict.

But this explanation presents an incomplete picture.  For one, there was no indication that Lynch ever intended to delegate prosecutorial discretion to Comey — in fact, her Colorado remarks may just as readily be interpreted to mean she was binding herself to not exercising any type of discretion, and would simply follow the FBI’s recommendation on whether a crime had been committed and the recommendation of her subordinate prosecutors in the Justice Department on whether to indict.  Indeed, in responding to Lynch’s remarks in Colorado, the Justice Department’s spokeswoman emphasized that Lynch would be deferring to her staff and career prosecutors, not just the FBI.  And the New York Times reported the names of an assistant attorney general and deputy attorney general who would review the recommendation prior to its implementation by Lynch.

The involvement of Justice Department attorneys in the decision-making process is absent from the prevailing media narrative following on the heels of Comey’s recommendation.  This is no doubt fostered by Comey’s prefatory comments noting one of the “unusual” characters of his statement: “I have not coordinated or reviewed this statement in any way with the Department of Justice or any other part of the government. They do not know what I am about to say.”

Here, Comey is making it explicit that the Department of Justice, including Lynch and her subordinate prosecutors, had no foreknowledge of his recommendation.  While elsewhere he suggests the recommendation is based on “productive conversations”  with prosecutors, Comey is rather unambiguous that his recommendation contains no direct input from them.  Thus, the recommendation reads as if Comey has actively seized for himself the mantle of prosecutorial discretion from the Justice Department — a power that is not only clearly outside of the FBI’s authority, but was never delegated to Comey to begin with.

Whereas the role of prosecutors is practically eviscerated from Comey’s recommendation, they make a fleeting re-appearance in Lynch’s terse statement closing the case the day after Comey’s announcement.  According to Lynch, she accepted the “unanimous recommendation” of “FBI Director James Comey and career prosecutors and agents.”  Notably, there is no reference to such a “unanimous recommendation” in Comey’s statement — rather, Comey makes it clear that the statement does not reflect their concurrence but is instead a recommendation communicated to the prosecutors themselves.  Furthermore, between the time of Comey’s statement and Lynch’s statement, there was never a public declaration concerning the content of any recommendation from Lynch’s subordinate prosecutors.

The Nation’s Chief Lawman Denounces Clinton’s Conduct

Aside from its apparent usurpation of prosecutorial discretion, Comey’s recommendation is extraordinary for its public character and harsh criticism of Clinton’s conduct.  The fact that the FBI director would offer a 15-minute statement detailing the investigation and justifying his “no indictment” recommendation to the public is remarkable in and of itself.  Again, Comey acknowledges this very fact in his introductory comments, telling us that while it is “unusual,” “I am going to include more detail about our process than I ordinarily would, because I think the American people deserve those details in a case of intense public interest.”

Critically, the “detail” that Comey supplies goes far beyond simply relating the content of the recommendation not to indict Clinton.  Instead, Comey methodically proceeds to describe a number of facts uncovered by the investigation that unambiguously portray Clinton in a bad light — indeed, in a much worse light than had Comey simply announced that Clinton and her staff were “extremely careless” in handling classified information but that she would not be indicted for this conduct.  Specifically, Comey notes that: (1) Clinton used several different servers and mobile devices as Secretary of State; (2) 113 of her emails contained classified information at the time they were sent or received, including eight email chains with “Top Secret” information; (3) Clinton’s attorneys conducted an incomplete review of her emails before turning them over to the FBI, and permanently destroyed those emails they did not turn over.  Other emails are permanently lost because Clinton deleted them and the private servers did not archive them; (4) Clinton’s multiple private servers were not supported by full-time security staff; (5) government officials in Clinton’s position have an obligation to protect emails as classified, whether or not they are marked as “classified” at the time; (6) it was possible that hostile actors gained access to Clinton’s private email account; and (7) Clinton’s conduct would ordinarily incur security or administrative sanctions.  In a nutshell, Comey systematically dismantles Clinton’s public defense of her email imbroglio and shows her to have made several false statements.

A Patently Ridiculous Defense

But Comey doesn’t stop at setting forth a meticulous and direct refutation of Clinton’s credibility in the course of constructing a detailed assessment of how her handling of classified information was “extremely careless.”  Rather, upon carefully articulating each prong of his assessment and refutation, Comey presents a legal justification for why Clinton should not face criminal charges for any of her transgressions.  This coda to Comey’s already singular presentation could be its most bizarre feature insofar as it constitutes a justification for the use of prosecutorial discretion that makes no sense at all.

Aside from the fact that, as discussed, Comey is hardly the proper official to be addressing prosecutorial discretion (the missing-in-action “career prosecutors” are), Comey presents a litany of four “factors,” the supposed absence of which, according to Comey, militates in favor of not prosecuting Clinton:

“[1] clearly intentional and willful mishandling of classified information; [2] or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; [3] or indications of disloyalty to the United States; [4] or efforts to obstruct justice.”

According to Comey, one or more of these factors were present in all previous FBI investigations into “mishandling or removal of classified information” that resulted in prosecution.  As such, the absence of these factors means that “no reasonable prosecutor” would prosecute Clinton.  But there are myriad glaring problems with Comey’s prosecutorial discretion defense.  In a long essay, one former criminal defense attorney and Harvard Law graduate elucidates why Comey’s testimony explaining his recommendation was “the worst education in criminal justice the American public has ever had,” detailing several ways in which his proffered reasoning clashes with fundamental legal principles.  Isolating all of the flaws in Comey’s analysis would be an involved venture on its own, but the following are the most glaring:

  1. Demanding evidence of willful or intentional conduct, when the statute expressly incorporates the lesser mens rea of gross negligence.   By stating that “no reasonable prosecutor” would prosecute a crime requiring gross negligence unless there was evidence of intentional misconduct, Comey is asserting that any prohibition of grossly negligent conduct is inherently unreasonable.  This is simply not an accurate or even colorable view of the law, which has long recognized gross negligence as a viable criminal state of mind.  Perhaps the most familiar example is the crime of voluntary manslaughter, where the applicable mens rea is defined under federal law as “without due care or circumspection.”  While arguing that our system ought not to prosecute criminal negligence may be a worthy academic exercise, prosecutors must take the system how it is, and not how they wish it to be.
  2. Completely ignoring a 2015 DOJ prosecution of a Naval reservist along with several examples of successful prosecutions based solely on grossly negligent handling of classified information within the military justice system (My previous article lists the military cases, which are taken in turn from a 2000 Washington Post article).  It is not immediately obvious — and Comey never supplies an explanation — why military prosecutions would not be relevant to the calculus.  Given that the Uniform Code of Military Justice is itself a creature of federal law, one would think that the military justice system’s approach to a federal criminal statute would be instructive.
  3. Applying — and then purporting to satisfy — a ridiculous standard for whether prosecutorial discretion should be exercised, i.e., “no reasonable prosecutor would bring such a case.”  As far as I can tell, prosecutorial discretion is just like any other form of legal discretion — reasonable minds may differ as to whether its exercise is appropriate in any one case, but that is quite alright.  Indeed, the standard employed by Comey resembles that used to adjudicate matters on a motion for judgment as a matter of law/directed verdict, which must be granted when the appropriate showing is made, i.e., the court has no discretion.  In any event, the very use of this standard (which Comey appears to have plucked from thin air) undermines his defense of prosecutorial discretion because it is so easy to refute.  All it takes is for one “reasonable prosecutor” to emerge and declare he or she would have prosecuted Clinton — and some former prosecutors have already done just that.


Instead Of Indictment, A Plea — On Behalf Of A Legal System Confronted With A Politician “Too Big To Fail”

So what would possess Comey to very publicly purport to seize and then exercise a power he never possessed (prosecutorial disctretion), and then supply a patently ridiculous and easily assailable legal justification for doing so? In answering this question, I credit as fact that Comey is a savvy and experienced high-level federal official and an accomplished attorney in his own right, likely being advised by other experienced, high-level counsel.

My belief is that Comey did so because he was already aware that the Attorney General’s office — the proper owner of prosecutorial discretion — intended to exercise its discretion to not indict Clinton, regardless of what the FBI’s investigation found or advised.  Comey knew all of this because, as he states, in the course of any investigation the FBI has frequent “productive conversations” with the prosecutors.  Moreover, based on these conversations, Comey likely also knew an announcement from the DOJ was imminent — perhaps explaining the sudden and odd timing of Comey’s press conference on the morning after a long 4th of July weekend.

I also believe Comey knew the real basis for the Department of Justice’s use of prosecutorial discretion — and it has nothing to do with the factors laid out in Comey’s statement or testimony.  Rather, the real basis is substantially the same as what led the Department of Justice not to prosecute Clinton after the Whitewater investigation: namely, her status as a prominent political figure.  Indeed, as the Democratic Party’s presumptive nominee for President, former Secretary of State, former Senator, and multimillionaire, she is even considerably more prominent now than she was at the time of Whitewater.

And I think Comey vehemently disagreed with the use of prosecutorial discretion to clear Clinton after his FBI investigation.  Thus, when Comey received word that the Department of Justice was about to make its decision, he struck first — presenting his own conclusive recommendation as an opportunity to skewer Clinton’s conduct and credibility, while setting forth a patently ridiculous legal defense of a prosecutorial discretion he did not believe should be exercised, but had no power to control.  This move permitted Comey to take the maximum shot at Clinton, while preserving the appearance of unity between the FBI and Attorney General regarding the investigation’s outcome.  While Harvard Law School professor Jack Goldsmith (a former colleague of Comey when they both worked in the Justice Department) takes stock of Comey’s move as a show of FBI independence to preserve the agency’s reputation in the face of swirling public doubts about the integrity of the Clinton investigation, he fails to appreciate the boldness of Comey’s public usurpation of prosecutorial discretion within the context of a hyper-partisan political climate.  Given this context,  any concern over the FBI’s historical legacy would be expected to defer to shrewd political maneuvering, of which Comey certainly seems more than capable.

Viewed in this light, Comey’s recommendation of non-indictment was itself a metaphorical indictment of Clinton’s conduct, coupled with a rebellious rejection of the Obama administration’s alliance (through the Justice Department) with Clinton and its affirmation of her extreme carelessness. On this account, Comey’s statement may also be read as a searing metaphorical indictment  of the present state of the American legal system: namely, that it too weak vis-a-vis Clinton to prosecute her– too comparatively weak because Clinton is “too big to fail.”  Taken literally, Comey is correct: no reasonable prosecutor, given the current government and political climate, would dare indict Hillary Clinton.   Comey’s hapless position is somewhat reminiscent of that of Archibald Cox during a previous extraordinary moment in American presidential politics, the Saturday Night Massacre, when Cox was terminated by President Richard Nixon’s Justice Department from independently prosecuting the Watergate investigation.  Upon receiving word of his firing, Cox issued this statement:

“Whether we shall continue to be a Government of laws and not of men is now for Congress and ultimately the American people.”

With his recommendation not to indict Clinton, Comey seized the legal inquiry regarding Clinton’s conduct and thrust it firmly into the political sphere.  His statement and testimony are now foundation blocks for a narrative portraying Clinton as too careless to run the country, not to be trusted to properly handle matters of the utmost importance.  Given that significant foreign policy experience is one of her prime selling points, this narrative could have real bite.  By the same token, Comey’s deliberate refutation of Clinton’s public defense of her email conduct risks further drowning her credibility with voters, as much as 69% of whom, according to recent polling, are already concerned she is untrustworthy.  Aside from serving as a potential flashpoint in the presidential campaign rhetoric, Comey’s recommendation has already spawned Congressional action, including a hearing called by the House Committee on Oversight and Government Reform, at which the Chairman suggested he would be referring Clinton for a new FBI investigation, this time for allegedly lying to Congress regarding her email practices.

In a functional democracy, turning the legal question of Clinton’s conduct into a political one might well be wise, affording the voters a genuine referendum on whether her conduct should disqualify her from acceding to the nation’s highest office. But by many accounts, our political system is ailing due to money and its influence.  On the Democratic Party side of the equation, the process has all but vanquished Bernie Sanders with his litany of progressive policies alongside an appeal to transform the political system itself.  Meanwhile, the Republican Party has undergone a full-scale implosion, resulting in the party’s nomination of Donald Trump.  Having made frequent comments showing intense animus based on gender, ethnicity, and religion, Trump would seem to be the very embodiment of willful malice. Thus, for the American voters to reject excessive carelessness as a mode of governance, they must all but endorse evil intent.

Sadly though, excessive carelessness would seem to be at the root of many, if not all, of the salient ills afflicting American society in recent times.  Careless gun policy has helped create police and mass shooting epidemics.  Reckless foreign policy has led to unnecessary wars and exacerbated terrorism domestically and abroad.  Careless healthcare and education policy has increased inequality and stoked social friction.  Careless environmental policy has placed our globe in imminent jeopardy.  And the list goes on.  To be sure, in the same way that a reckless driver of an 18-wheeler can cause an accident harming or killing far more people than a lone armed robber may shoot, the lower order mens rea does not necessarily entail a lower order social problem.

Before Comey issued his recommendation, I concluded that indictment or no indictment, Clinton was already a victim of her own mistakes, but it remained to be seen whether the country will join her as a victim.  Now that she has all but locked up the Democratic nomination, it seems clearer that we are all now tied to her fate, willingly or unwillingly. Now it remains to be seen what consequences we will all face, and how we will face them.


By Jared H. Beck, Esq.

Jared H. Beck has a B.A. from Harvard College, an M.A. in government from the Harvard Graduate School of Arts and Sciences, and a J.D. from Harvard Law School, where he was an editor of the Harvard Law Review.  In addition to serving as co-founders and co-directors of JamPAC, he and his wife, Elizabeth, own and operate a law firm, Beck & Lee, in Miami.  Beck & Lee dedicated to the practice of business, personal injury and real estate litigation, as well as pursuing the rights and remedies of small businesses, consumers and investors through class actions. He is a member of the Florida and California Bars, and litigates in other U.S. jurisdictions in conjunction with qualified local counsel.  Beck can be reached at 305-234-2060 or





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