5 reasons Comey should have recommended Clinton’s indictment

When FBI Director James Comey announced that he would not recommend prosecution of former Secretary of State Hillary Clinton for violation of the Espionage Act (Title 18, United States Code, Section 793), he made a decision based upon political considerations, not based upon principles of criminal law or justice.

{mosads}There are five key points to be made in analyzing the director’s very flawed recommendation:

1. There was a disregard for criminal negligence

After ignoring a wealth of evidence that would have met the intent prong of the statute, Mr. Comey essentially wrote subsection 793(f), the gross negligence section, out of the applicable statute in the Clinton email investigation. The director’s explanation that he had worked all his life to “decriminalize negligence” and thereby would not recommend prosecution was nothing short of ridiculous. It should be first noted that Mr. Comey offered no such examples of his “life’s work,” and it is doubtful that there are any.

There has always been prosecution of criminal negligence at every level of our legal system, and with good reason. Negligent homicide by reckless driving is one common example that should come readily to mind. Starting a fire in a fireworks stand, resulting in an explosion and death of a customer or employee, would be another. Intent to kill is not required for conviction of reckless homicide in either case for obvious reasons. The negligent actions taken are inherently reckless as to endanger human life, and are therefore included in virtually every state and federal criminal code as punishable offenses.

It must also be noted that Mrs. Clinton’s unguarded emails may have similarly resulted in at least one death — that of an Iranian scientist who was executed by Iran as a spy after his name surfaced in one of the emails on her unprotected private server.

2. Comey was not a prosecutor at the time of the scandal, and could not, therefore, exercise prosecutorial discretion

While Mr. Comey may have exercised prosecutorial “discretion” in some of his prior posts as an assistant United States attorney or deputy attorney general, Mr. Comey was not a prosecutor at the time of the email scandal investigation. He was and remains the nation’s chief investigator, sworn to uphold the laws of the country as written by Congress, and he was neither sworn nor entitled to re-write those statutes to his own satisfaction.

While there are undoubtedly some examples of investigative discretion in our system, most are relegated to petty offenses, such as warning tickets for minor speeding violations. At the offense level where Mrs. Clinton’s offenses are found, such decisions are reserved to a prosecuting authority; they are not left to investigators.

3. Comey revealed proof of guilt and then pardoned it without authority

When Mr. Comey took the unprecedented step of revealing the conclusions of his investigation prior to submitting those findings to the Department of Justice, and of delivering an excoriation of Mrs. Clinton’s negligence to the public, he characterized her actions as “extremely careless,” words used in trial jury instructions to explain the very meaning of the phrase “gross negligence” used in the statute. He thereby confirmed that his investigation had revealed proof of guilt, but chose to issue a pardon instead — another action he had no authority to take.

4. Comey lacks any substantive argument to support his actions

In defending his action, Mr. Comey fell back on a bad habit of his, one for which he has actually been congratulated in the past. While acting as deputy attorney general, when he didn’t like a memo he received supporting parts of a terrorist surveillance program, he referred to it dismissively as “fatally flawed,” saying “no lawyer reading that could reasonably rely on it.” When another seasoned attorney replied that he had relied on the memo, Comey’s response was, “No good lawyer” — a remark that earned him praise from those opposing the program under scrutiny.

Similarly, when Comey presented his findings in the Clinton investigation, he preemptively declared that “no reasonable prosecutor” would indict on such evidence, a claim subsequently challenged by those as credentialed as Rudy Giuliani and Joseph diGenova, former United States attorneys for, respectively, the Southern District of New York and Washington, D.C. In both instances, Comey put nothing on the table to substantively defend his decisions. He resorted instead to insulting, ad hominem attacks on anyone who would dare to disagree with his imperial decisions — decisions that could NOT, after thorough review, be defended in any other fashion.

5. Comey abrogated his responsibility to the law and the nation

Some have theorized that this was a conscious decision by Comey to take no action because he believed that the decision to be made — in essence, to disqualify Mrs. Clinton from the presidency — was one properly reserved for the voters. In so deciding, if in fact such was his decision, his action was much more in line with the hand-washing of Pontius Pilate than with the wisdom of Solomon. The Constitution’s system of checks and balances inherently recognizes that there are times when voters, being human, will make mistakes, and elect public officers who — also being human — will violate the laws of the nation or the Constitution itself.

Here, Comey was not even dealing with an elected official, just one on her way to a nomination. If our system falters or ultimately collapses, those such as Mr. Comey (and, arguably, Chief Justice Roberts in the Supreme Court’s ObamaCare decision) who are charged with providing the checks and balances contemplated by the Constitution — but who could not find the courage to apply them — will have to answer to history.

Proof of intent is generally established by evaluating the actions of the suspect. Here those actions included Clinton’s unlawful establishment of a private email server, numerous “false exculpatory statements” (lies about her actions), destruction of evidence, and further lies about her lies and destruction of evidence.

Comey ignored such evidence in order to reach his negligence analysis, which, as previously discussed, is “fatally flawed.” His final justification — that no one had ever been prosecuted for a violation of subsection 793(f) — is similarly absurd. Indictment precedents are not required if the elements of a statutory violation are satisfied by the misconduct of the offender.

By definition, there always has to be a first time. By any neutral and competent analysis, Mr. Comey, this was that time. Having demonstrated that you were not up to the task of performing that analysis, you have shown America that it is time for you to go.

Charles Ambrose is a graduate of the United States Air Force Academy, a former USAF JAG officer, and served for 25 years as an assistant United States attorney in the District of Columbia and in the Western District of Missouri. He is the author of the Jeff Trask crime dramas, writing under the name Marc Rainer. His newest novel in the series, A Winter of Wolves, is available now on Amazon and your local bookstore. Learn more at www.marcrainer.com.

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