Comey reported only three possible charges that could have been brought against Clinton or her aides: intentional mishandling of classified information or grossly negligent mishandling, both felonies under 793(f) ; and knowingly removing classified information from appropriate systems, a misdemeanor presumably under 1924 .
The FBI indicates that the recommendation of the FBI was limited to "laws governing the handling of classified information" although 793(f) does not mention classified information. Comey did not mention the various other laws implicated by Clinton's handling of her emails, and her statements about them in various fora. The FBI did not record or take sworn testimony of its interview with Clinton so Comey's judgment whether she lied to the FBI cannot be tested.
Comey admitted to the Chairman of the House Oversight Committee that the FBI did not investigate lies told to the Benghazi Committee because it did not have a "referral" from Congress. The Committee Chair Chaffetz responded: " You'll have one in the next few hours." Does the FBI also need a referral to investigate the other possible crimes committed by Clinton with respect to her email practices, such as possible violations of 18 U.S. Code 641 (one who "disposes of any record ... of any department or agency"); 18 U.S. Code 2232 ("Destruction or removal of property to prevent seizure"); 18 U.S. Code 1512(c) (one who "destroys, mutilates, or conceals a record, document, ... with the intent to impair the object's ... availability for use in an official proceeding," such as FOIA perhaps ?); 18 U.S. Code 1519 (the same to "influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States," like Clinton Foundation charity conflicts perhaps?); and 18 U.S. Code 2071 (one who "takes and carries away any record ... in any public office").
Another matter raised at the hearings that the FBI did not pursue was that Clinton had on her unprotected secret server the names of covert CIA officers, the disclosure of which is a felony under the Intelligence Identities Protection Act.
Gross negligence
Bernie Sanders has been too preoccupied with convincing his followers that the Democratic Party Platform is relevant, by performance of his new role in the Kabuki theatre of corporate Democrats, acting out a supposedly important public debate over the Platform contents. He is planning to endorse for the Democratic Party nomination that was stolen from him the FBI-certified "extremely careless" candidate, rather than argue at the Convention 1) for her disqualification on that ground and 2) for party rules that would prevent election theft.
It was therefore left to Green Party candidate Jill Stein to point out, along with many others, that, in addition to the above analysis about the true legal meaning of, and factual proof necessary for, the element of intent, "All the elements necessary to prove a felony violation were found by the FBI investigation, specifically of Title 18 Section 793(f) of the federal penal code.... Director Comey said that Clinton was 'extremely careless' and 'reckless' in handling such information. Contrary to the implications of the FBI statement, the law does not require showing that Clinton intended to harm the United States, but that she acted with gross negligence."
Section 793(f) punishes anyone " entrusted with ... any ... information, relating to the national defense, [who] through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed." Comey was unable to explain how his "lack of intent" argument could prevent application of a statute that specifically reduces the ordinary presumed intent to an even lower standard that matched the precise factual findings of the FBI, as Rep. Gowdy had also pointed out to Comey at the hearings without any effective response from Comey.
It is unlikely that Comey's highly flawed legal explanation for the institutionally inappropriate spiking of the prosecution of Hillary Clinton will escape the political verdict rendered by Trump and others that it was "rigged."
(Article changed on July 8, 2016 at 20:49)
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