Opinion| Oh, my.
Cracks begin appearing as the rats run for cover.
According to investigative journalist Sara Carter, there was at least one person inside the executive offices of the FBI who believed Hillary Clinton had violated the Espionage Act when she transmitted classified materials over her private server.
This wasn’t just some lesser official either.
Former FBI General Counsel James Baker originally believed Hillary Clinton’s mishandling of highly classified information was “alarming” and “appalling.” At the time, he believed her use of a private server to send the classified emails was sufficient enough to secure an indictment to possibly charge her for violations under the Espionage Act, for mishandling sensitive government documents.
Baker eventually signed off on then-FBI Director James Comey’s July, 5 2016 exoneration of Clinton but it almost assuredly wasn’t because his input had been first been weighed by Comey.
Recall that Comey had already written a draft exoneration in May. That draft, written two months before his publicized exoneration of Clinton, was notable for the wordcraft that Comey employed.
According to drafts later made public by Senate investigators, Comey substituted “grossly negligent,” a legal term for mishandling classified information, with “extremely careless.”
U.S. Rep. John Ratcliffe (R-TX), a member of the House Oversight and Government Reform Committee, questioned Baker about this:
“As the FBI general counsel, you originally believed it was appropriate, it was appropriate to charge Hillary Clinton with violation of the law for mishandling classified information?”
Baker answered that he believed that it would be the appropriate course of action after having reviewed a binder that contained sensitive and highly classified emails Hillary Clinton had transmitted using her private server:
“My original belief after, well, after having conducted the investigation and towards the end of it, then sitting down and reading a binder of her materials.”
“I thought that it was alarming, appalling, whatever words I said. And argued with others about why they thought she shouldn’t be charged.”
When he was asked what legal standard he was basing his opinion on, Baker responded:
“Well, it was the statutes that we were considering at the time. It was the nature and scope of the classified information that, to me, initially, when I looked at it, I thought these folks should know that this stuff is classified, that it was alarming what they were talking about, especially some of the most highly classified stuff.”
Under questioning by Rep. Ratcliffe, the FBI’s most senior counsel also admitted to telling Inspector General Michael Horowitz the same thing.
Baker said he eventually signed off on Hillary’s exoneration after Comey convinced him that they couldn’t prove Clinton intended to mishandle classified information.
If Baker truly believes that intent is a necessary standard for a successful prosecution of Section 798 of the Espionage Act violations then he had no place as the FBI’s top lawyer.
Former federal prosecutor Andrew McCarthy, addressed this strawman on the same day that Comey announced he would not be recommending charges: (emphasis mine)
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.
I would point out, moreover, that there are other statutes that criminalize unlawfully removing and transmitting highly classified information with intent to harm the United States. Being not guilty (and, indeed, not even accused) of Offense B does not absolve a person of guilt on Offense A, which she has committed.