What Is a 'Reasonable Prosecutor'?

FBI Director James Comey reports that the FBI will not recommend criminal charges in its investigation into Hillary Clinton's use of a private email server while secretary of state. (AP Photo/Cliff Owen)

There has already been a tsunami of commentary about FBI Director James Comey’s remarkable performance today. Director Comey informed the world that he would not recommend that criminal charges be pursued against Hillary Clinton in the matter of her mishandling of classified material on her hombrew email system. There is much disbelief and anguish about this, a lot of it to the point. I think that my friend Andrew McCarthy was particularly astute with his NRO column. The title sums it up: “FBI Rewrites Federal Law to Let Hillary Off the Hook.”


Andy homes in on the gaping hole at the center of Director Comey’s argument. On the one hand, Director Comey allows that “there is evidence of potential violations of the statutes regarding the handling of classified information.” On the other hand, he found “no clear evidence that Secretary Clinton or her colleagues intended to violate laws.”

So, you might be asking yourself, what? As Andy points out,

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 admits all this, indeed, he took pains to lay it out carefully. But he concludes that because Hillary Clinton did not intend any harm by her negligent behavior, there were no grounds to recommend prosecution. “Our judgment,” he said, “is that no reasonable prosecutor would bring such a case.”

This makes no sense. Andy:

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.


How are we to understand Director Comey’s conclusion? Some commentators — my friends James Robbins and Roger L. Simon, for example — argue that Director Comey’s withering assessment will in the end be more damaging than an indictment because he has pointedly drawn attention to Clinton’s recklessness and incompetence. “Did Comey,” Roger asks, “Actually Destroy Hillary Clinton by ‘Exonerating’ Her?”

My sad suspicion is that the answer is “No.” Why? Because that would only be the case if there were sufficient public outrage to call her to account. Is there?

Cast your mind back over the many, many scandals the Clintons have been involved in: Whitewater, Travelgate, Vince Foster, cattle futures, Monica Lewinsky, etc., etc. Has anything ever stuck? As far as I know, the answer is “No.”

Which brings me to Director Comey’s assertion that “no reasonable prosecutor” would bring the case against Hillary Clinton for mishandling classified materials and compromising our national security (but she didn’t mean to). What do you suppose Director Comey meant by “reasonable prosecutor”?

A friend from London just wrote me with what I think is the answer: “Maybe,” he wrote, “Mr. Comey was referring to the rain of abuse that showered down on Kenneth Starr, the last person who thought he had a Clinton dead to rights?” Would any reasonable person wish that upon himself?


If there was any doubt, James Comey made it abundantly clear today that henceforth — indeed, for some little while now — the laws of this country only apply to certain parts of the population. If you are John Deutch, David Petraeus, Sandy Berger, or countless others, the statute regarding Unauthorized Removal and Retention of Classified Documents or Material applies to you. Violate and you are penalized. If you are Hillary Clinton, however, it does not apply to you. It gives new meaning to that old Latin tag: Quod licet Jovi, non licet bovi: “What is permitted to the Clintons is not permitted to us peons.”

I keep thinking that the lawlessness and corruption of our government will cause the people to rise up and throw the bums out. I keep being disappointed.

Will this flagrant violation of the public trust finally do the trick? Could the stench of corruption be any more blatant? The supposed-to-be-secret meeting between Attorney General Loretta Lynch and Bill Clinton; Barack Obama’s parading around with Hillary on the campaign trail in order to give himself a virtual third term; the director of the FBI outlining Hillary’s malfeasance and then blithely announcing that “no reasonable prosecutor” would go forward with the case. It is astonishing what just happened. Maybe, just possibly, the people will finally rise up and say Basta! Maybe. But when I shush everyone and cock my ear what I hear is . . .  crickets. This is not a good moment for the United States of America.






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