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"Although there may have been profound harm to national security ... we’ve decided she shouldn’t be prosecuted."
National Review contributor and former Assistant U.S. Attorney Andrew McCarthy reacted rather bluntly after FBI Director James Comey announced the bureau's opinion Tuesday that “no charges are appropriate” in the investigation into the private email server Hillary Clinton kept during her time as secretary of state.
In an article published on the National Review website, McCarthy outlined the reasons that led him to believe the FBI effectively "rewrote Federal" law in its decision not to indict Clinton.
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.
According to McCarthy, the FBI cited Clinton's "extreme carelessness" in handling sensitive government information as a reason not to hold the Democratic presidential candidate legally accountable. He noted, however, that the law explicitly provides for this form of prosecution in its criminalization of "gross negligence":
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.
He went on to accuse the FBI of constructing a "straw-man" scenario by knocking down a crime the prosecution never raised, confusing the public into thinking that Clinton is not guilty of the crime that was actually charged.
It [the FBI] has told the public that because Mrs. Clinton did not have intent to harm the United States we should not prosecute her on a felony that does not require proof of intent to harm the United States. Meanwhile, although there may have been profound harm to national security caused by her grossly negligent mishandling of classified information, we’ve decided she shouldn’t be prosecuted for grossly negligent mishandling of classified information.
McCarthy concluded that Tuesday's announcement "makes no sense" when one considers what was required to bring a case against Clinton and noted that he was "especially unpersuaded" by Comey’s claim that "no reasonable prosecutor would bring a case based on the evidence uncovered by the FBI."
According to McCarthy, a "reasonable prosecutor" would have asked why gross negligence is a deemed a felony. If it is "to prevent harm to national security," then the next step would be to determine if the statute was violated and if Clinton’s conduct harmed or threatened national security. If yes, McCarthy said that most "reasonable prosecutors" would find it necessary to bring the case.
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