Calling Your Own Fouls: My Assessment of the F.B.I Report

The opening of this post is essentially a reprint of  my contribution to a thread of comments, made on a friend's Facebook page, re the outcome of the FBI investigation into the Clinton server issue.

The point of departure for the thread was the The Federalist's reaction to the decision not to pursue charges against Secretary Clinton:

Hillary Clinton Is Above the Law 

The thrust of the article:

No reasonable person could possibly square what FBI Director James Comey said about Hillary Clinton’s use of a personal e-mail system during her time as Secretary of State with his final recommendation.

On Tuesday, Comey spent 15 minutes meticulously detailing every illegality of Clinton—including her negligent behavior and obstruction of the investigation. And yet, at the end of it all, he offered the absurdly counterintuitive position that no “reasonable prosecutor” would bring charges in such a case.

 The clear implication here is that Comey is an idiot (and if so, an idiot characterized in the Washington Post as "a Republican with a sterling reputation among leaders of both parties") or else that he succumbed to political pressure.

Re the "or else," that's speculation, and in my book speculation doesn't cut it. To sustain this position two things are required: actual evidence that pressure was applied to Comey to produce an outcome favorable to Hillary Clinton, and evidence that Comey was too weak or too corrupt to resist this pressure.

Thus far we have no evidence that the first occurred, and the fact that Comey produced a report that is clearly politically injurious to Clinton (the WaPo article in which the characterization of Comey appears is headlined "Even Without Charges, FBI Rebuke Leaves a Heavy Political Cloud Over Clinton") is pretty compelling evidence that Comey resisted any such pressure. He may have reached a conclusion at odds with the wishes of Clinton's detractors, or their assessment of whether the numerous mistakes made concerning the private server warranted indictment under the relevant statute, but I'm satisfied that he reached his conclusion based on his own judgment. To maintain otherwise requires making a case, based on actual evidence, that Comey lacks both strength of will and integrity.

Comey's oral summary of the findings of the FBI report, and its recommendation against prosecution, is here.

Samples of the coverage by the supposedly pro-Clinton liberal media, as exemplified by the Washington Post and New York Times:

Clinton's Email Problems Might Be Even Worse Than We Thought (WaPo, July 5)

How the FBI Director Systematically Dismantled Hillary Clinton's Email Defense (WaPo, July 5)

Also this rather scolding editorial:  Clinton Was 'Extremely Careless."  That Is Not A Crime, But She Must Do Better in the Future.  (WaPo, July 5)  The editorial compliments Comey on his handling of the investigation and what it regards as his judicious conclusion.  It concludes with this admonishment to Secretary Clinton:  "Rather than toss off this experience with a back of the hand, Ms. Clinton needs to learn from it and find a way to show voters that she has better judgment than the combination of high-handedness and defensiveness she has displayed here."

F.B.I.'s Critique of Hillary Clinton Is a Ready Made Attack Ad. (NYT, July 5)

The opening paragraphs of this analysis are worth quoting in full:

Hillary Clinton may not be indicted on criminal charges over her handling of classified email, but the F.B.I. director, James B. Comey, all but indicted her judgment and competence on Tuesday — two vital pillars of her presidential candidacy — and in the kind of terms that would be politically devastating in a normal election year.

The silver lining for Mrs. Clinton is that this is not a normal election year.

Mrs. Clinton’s campaign is built on the premise that she has the national security experience and well-honed instincts to keep Americans safe in the age of terrorism, and that Donald J. Trump does not. Nearly every day, she seeks to present herself as a more thoughtful and responsible leader.

She has spent months describing Mr. Trump as “reckless,” “unprepared” and “temperamentally unfit” to be president, and she has pointed to her four years as secretary of state and eight in the Senate as unparalleled preparation for becoming commander in chief.

Yet in just a few minutes of remarks, Mr. Comey called into question Mrs. Clinton’s claims of superiority more memorably, mightily and effectively than Mr. Trump has over the entire past year. And with potentially lasting consequences.

The New York Times editorial on the F.B.I. report is more in line with the conservative orthodoxy that the "liberal media" is protective of Secretary Clinton.  It bends over backward as far as it can, but nonetheless concludes:  "[Secretary Clinton] has done damage to her reputation by failing to conform to the established security policies of the department she ran and by giving evasive or misleading answers about her actions and motivations. If there was ever a time that Mrs. Clinton needed to demonstrate that she understands the forthrightness demanded of those who hold the nation’s highest office, this is that moment."

The Wall Street Journal, the conservative counterpart of the WaPo and NYT, contains what is so far the best argument I have seen that an indictment was warranted based on Comey's demolition of the web of Secretary Clinton's numerous evasions.  But unlike some other arguments I have seen, it does not make accusations that "the fix was in."  It does not impugn, directly or implicitly, Comey's integrity.  Its basic tone is one of perplexity--which I think at this point is the responsible way to frame it.

The perplexity owes to the paradox that the F.B.I. report details enough negligence and malfeasance to justify an indictment, yet no indictment will be sought.

The analysis, made by former U.S. Attorney General Michael B. Mukasey, who served in the last two years of the George W. Bush administration, concurs with Comey that prosecution under a statute requiring proof of purposeful intent to destroy government records, or intent to obstruct justice"--even it occurred, which is a not unreasonable suspicion--was untenable.

Consequently, the F.B.I. focused on the question of whether Secretary Clinton and her staff violated two other statutes, one a felony, the other a misdemeanor.

Re the felony:

It is a felony for anyone entrusted with lawful possession of information relating to national defense to permit it, through “gross negligence,” to be removed from its proper place of custody and disclosed. “Gross negligence” rather than purposeful conduct is enough. Yet Mr. Comey appears to have based his recommendation not to prosecute on the absence of “clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information”—though he did say in the same sentence that there was “evidence that they were extremely careless in their handling of very sensitive, highly classified information.”

Re the misdemeanor:

The misdemeanor involves simply the knowing removal of classified documents to an unauthorized location.

This last clearly occurred, and Makasey notes that this is the same statute violated by General David Petraeus who disclosed classified information to  Paula Broadwell, his biographer and mistress.  In that instance, Petraeus faced prosecution and pleaded guilty in 2015.

In my view, Makasey makes a compelling case, and I have not yet found an argument that satisfactorily counters it.  My conclusion, then, is that Comey arrived at his decision based on his own judgment--not political pressure--but that a good case can be made that he reached the wrong decision.

In a comment on my brother Scott's Facebook page yesterday, I rejected his contention that an article in the Conservative Tribune offered irrefutable proof that the Clinton server was hacked and that Secretary Clinton knew it.  I based my rejection on the following:

The terrific thing about the Internet is that it is possible to source every statement of consequence. What I did not see in the piece--or any of the links in it, which as far as I could discern were to other attack pieces--was the source for [Clinton staffer] Huma Abedin's statement.

 In other words, I expected at some point to see Abedin's statement quoted verbatim with a citation to the source of the quote. What I saw instead was [gadfly Judge Andrew] Napolitano's paraphrasing. I may well have missed it. If so, I'd be obliged to have it pointed out to me.

I also noticed (in a linked article) that an IT person responsible for security for the server discerned an apparent attack and temporarily shut down the server so that it would not be hacked. The plain meaning of the statement is that the server was not in fact hacked.

To be clear, I think that the very fact that Clinton used a private server showed extraordinarily poor judgment and violated established State Department policy. And what seems clear from the IT person is that he regarded protection for the server as lax. So my purpose here is not to exonerate or excuse Clinton. I simply expected competent sourcing, and didn't see it. Again, I may well have missed it--I had a finite amount of time in which to go through the article and the various linked articles.

What I have tried to do in this post is to model two things:  a willingness to face facts, even when the facts are unpleasant (I'm a Hillary Clinton supporter), and a commitment to sourcing material for the reasons I just now outlined.

In my view, these are at least two of the requisites for the kind of political dialogue my brother and I seek to foster.