Military Prosecutors Show That A Gross Negligence Prosecution Would Not Unfairly Single Out Mrs. Clinton

Andrew C. McCarthy, a former federal prosecutor, as well a friend and former colleague of FBI Director James B. Comey, offers his take on the Hillary Clinton email investigation for National Review.

In questioning by Congressman Trey Gowdy (R., S.C.), Director Comey seemed to concede that the statute criminalizing the mishandling of classified information through gross negligence may well be constitutional. That cuts against his testimony throughout the hearing, during which he argued that prosecuting a serious offense without requiring proof of an intent to cause harm would violate American tradition and, quite possibly, the Constitution. 

The director maintains, however, that using the statute to prosecute Mrs. Clinton would be inappropriate even if the statute is valid. This, he reasons, is because the statute has only been used once since its enactment in 1917. The idea is that using it against her would amount to unlawful selective prosecution. 

I am puzzled by this argument for several reasons, but I will limit this post to just one of them: The fact that the statute has been used repeatedly in military prosecutions – and that at least one military court decision undermines arguments Director Comey has made about the state-of-mind proof required. 

The military prosecutions for gross negligence in the mishandling of classified information were discussed by former Attorney General Michael Mukasey in a Wall Street Journal column following Director Comey’s press conference on Tuesday. While it is certainly true that the FBI does not handle such investigations, the military courts are part of the United States justice system. Military cases litigate many of the same statutes and precedents (especially, Supreme Court precedents) that are applicable in the civilian justice system. 

One relevant military case, United States v. McGuinness, is from 1992 – hardly ancient history. It involved a navy operations specialist sentenced to two years’ confinement (and other penalties) because, over his years of service, he retained 311 “classified items” unsecured in his home. While he was charged under Section 793, it was not under subsection (f) – the subsection of the statute most relevant to Mrs. Clinton, involving the grossly negligent mishandling of classified information – but under subsection (e), which criminalizes willful mishandling of classified information. Nevertheless, the case is highly relevant to our consideration of Director Comey’s recommendation against prosecution.

You can read the rest of the piece via the below link:

http://www.nationalreview.com/corner

Gross Negligence: FBI Rewrites Federal Law To Let Hillary Clinton Off The Hook

Former federal prosecutor Andrew C. McCarthy disagrees with the FBI's call not to recommend criminal charges against Hillary Clinton in a piece in National Review.

There is no way of getting around this: According to Director James Comey (disclosure: a former colleague and longtime friend of mine), Hillary Clinton checked every box required for a felony violation of Section 793(f) of the federal penal code (Title 18): With lawful access to highly classified information she acted with gross negligence in removing and causing it to be removed it from its proper place of custody, and she transmitted it and caused it to be transmitted to others not authorized to have it, in patent violation of her trust. Director Comey even conceded that former Secretary Clinton was “extremely careless” and strongly suggested that her recklessness very likely led to communications (her own and those she corresponded with) being intercepted by foreign intelligence services. 

Yet, Director Comey recommended against prosecution of the law violations he clearly found on the ground that there was no intent to harm the United States. In essence, in order to give Mrs. Clinton a pass, the FBI rewrote the statute, inserting an intent element that Congress did not require. The added intent element, moreover, makes no sense: The point of having a statute that criminalizes gross negligence is to underscore that government officials have a special obligation to safeguard national defense secrets; when they fail to carry out that obligation due to gross negligence, they are guilty of serious wrongdoing. The lack of intent to harm our country is irrelevant. People never intend the bad things that happen due to gross negligence.

You can read the rest of the piece via the below link:

http://www.nationalreview.com/corner/437479/fbi-rewrites-federal-law-let-hillary-hook

Why The Justice Department Won't Work With The FBI On Clinton's Email Case

Former prosecutor Andrew C. McCarthy offers a piece at National Review on the U.S. Justice Department and the FBI's investigation of Hillary Clinton's email.

The latest shoe in the investigation of Hillary Clinton’s scandalous mishandling of classified information dropped heavily this week. It had already been reported that, contrary to her denials, hundreds of secret intelligence communications were transmitted over the private, unsecured e-mail system on which the former secretary of state recklessly conducted government business. It is now clear that some of these contained “top secret/SAP” information. (SAP is “special access programs.”) This indicates defense secrets of the highest order, the compromise of which can destroy vital intelligence programs, get covert agents killed, and imperil national security.

... The FBI may not have a Justice Department prosecutor convening a grand jury, but it so happens that Director James Comey (whom I have known since we were pup prosecutors under Rudy Giuliani nearly 30 years ago) is a more accomplished government lawyer than anyone at the Justice Department. In fact, his own decorated DOJ career includes a term as deputy attorney general of the United States under President George W. Bush. Besides working under administrations of both parties, he has overseen prosecutions of both Republicans and Democrats. I’ve known no one in law enforcement more capable of navigating through a political maelstrom. Jim is tough, he is smart, and if there is a case to be made here, he will make it. And if he makes it, it will be bulletproof.

You can read the rest of the piece via the below link:

http://www.nationalreview.com/article/430211/hillary-clinton-email-fbi-department-justice-obama