This finding was not that Clinton's conduct did not violate the law, but that whoops, sorry, she didn't mean to. Voila, no intent; no crime. As Gowdy's questioning suggested, if the term "clear," as used by Comey to describe the quality of evidence of intent that he was looking for actually means direct, that never happens in the real world. The evidence of intent is always inferential, circumstantial, and indirect, not "clear" in a possible colluquial use of that term that Comey seemed to intend. The only time that intent evidence would be "clear" and direct is if there were a confession by a criminal.
The impression left by Comey, which Gowdy forcefully challenged, was that indirect and inferential evidence was not considered "clear" evidence. Since "clear evidence" is not a legal term the country is left to guess what Comey's subjective meaning for the term is. Since Comey was apparently not looking for it, the inferential and circumstantial kind of evidence that Gowdy recited, and which is commonly required to convict of the intent element of all ordinary crimes, was not found under Comey's leadership.
Comey's "Reasonable Prosecutor"
Comey's ambiguous finding about intent was offered to support his " judgment " that no reasonable prosecutor would bring ... a case" for Clinton's "potential violations of the statutes regarding the handling of classified information." This judgment went beyond Comey's position as FBI director to give, since the FBI does not prosecute. It investigates. Comey goes further beyond the scope of his authority in explaining: "Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person's actions, and how similar situations have been handled in the past. In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here."
Again Comey probably did not "see those things" because he did not look. Clinton's server involved "vast quantities of materials exposed in such a way as to support an inference of intentional misconduct." It was not just a mistaken channeling of a couple emails through her personal email. It was systemic and vast and therefore almost certain to expose national secrets. Clinton deliberately commingled personal and public, permitting her to later delete public communications under the unverifiable excuse that she only deleted personal. A fiduciary who commingles financial assets is guilty of crime. While the nation's fiduciary for conduct of foreign relations, Clinton commingled real assets, national secrets owned by the public, with her private information, and placed them both in her privately controlled storage vulnerable to theft.
What would be enough intent for a "reasonable prosecutor" to pursue a conviction for this violation is again left to Comey's own subjective standard. An objective standard would be met by appointing a professional unbiased special prosecutor with directions to present the best case to a grand jury for indictment following objective standards. That is the constitutional process to achieve objectivity in prosecutions of this political kind of matter.
Before anyone searching for such an independent prosecutor takes Director Comey's word about the FBI's standard for "reasonable prosecutors" they might want to check first with his FBI Sacramento office about whether they would agree with the Director that Assistant United States Attorney Jean M. Hobler was unreasonable when she successfully prosecuted the case of reservist for "removing and retaining" on his private computer classified material acquired when he was serving as a Naval Engineer in Afghanistan. The FBI investigated the case, and published a press release lacking any suggestion that the FBI considered AUSA Hobler to be an "reasonable prosecutor" for winning this case.
Though not nearly as significant as Clinton's similar crime, this case was virtually identical as far as the element of intent goes. Not a problem. Comey seemed to overlook this case in his description of precedent although it was concluded not even a year ago. Congress needs to ask the Director to put together a dossier of similar cases that the FBI has investigated. Since in his Statement Comey said "we cannot find a case that would support bringing criminal charges on these facts," he must have been looking in the wrong places. Congress needs to have him return to explain, since they did find such a case, whether that changes his conclusion about prosecuting Clinton under the same law.
Many commentators, including Gowdy, Chaffetz and other oversight committee members have concluded that Comey is operating within the framework of a two-tiered system of justice in giving this justification of insufficient intent. The elite political class has one kind of law and everyone else another. In a year when police are murdering blacks on the streets with impunity, the political elite is placed above the law.
Confusing motive with intent
Comey has not only misled the public by his repeated demand for evidence that Clinton's violation of the law was "clearly intentional and willful" according to some subjective standard of his own. More importantly, in his discussion of precedents, he deliberately confuses these terms with the separate concept of motive.
As justices Alito and Thomas said in another context, Comey's statement about controlling DoJ precedent "confuses two fundamentally distinct concepts: intent and motive.... [O]ur cases have recognized that a lawful motive (such as necessity, duress, or self-defense) is consistent with the mens rea necessary to satisfy a requirement of intent." Rosemond v. United States (2014). Any motive whatever can be used as evidence of intent but rarely can be used to disprove intent for purposes of determining guilt. According to the Supreme Court: "Motives are most relevant when the trial judge sets the defendant's sentence ..." Wisconsin v. Mitchell , 508 U.S. 476, 485 (1993) (hate crime). Motive might affect punishment, but ordinarily not guilt except as evidence of intent.
This highly limited role of motive in all ordinary criminal prosecutions is violated by Comey's reference to the kind of "intent" that was defined by DoJ precedent as "disloyalty to the United States; or efforts to obstruct justice." These clearly concern motives for a crime and not intent to commit the underlying crime of mishandling the nation's secrets and information. These "fundamentally distinct concepts" of motive and intent are jumbled up here on Comey's list of precedents together with his discussion of "intentional mishandling" or "intentional misconduct," instead of focussing on the actual element of intent necessary to prove a crime.
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