An early draft of former FBI Director James Comey’s statement exonerating Hillary Clinton from the email scandal contained much stronger, consequential language that would seem to indicate Clinton, in fact, violated the Espionage Act. What’s more, there is reason to believe the individuals involved in editing the memo were unduly influenced by political bias.
According to a report from The Hill, the wording of Comey’s statement was changed from saying Clinton had been “grossly negligent” in handling classified information to a softer accusation of being “extremely careless.”
“There is evidence to support a conclusion that Secretary Clinton, and others, used the email server in a manner that was grossly negligent with respect to the handling of classified information,” read the early draft.
In the final statement, amid an intense presidential election, Comey said that FBI investigators did not find evidence that Democratic nominee for president Hillary Clinton broke the law as secretary of state. and changed the “grossly negligent” language.
“Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of the classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information,” Comey said.
“This change is significant,” The Hill’s John Solomon writes, “since federal law states that gross negligence in handling the nation’s intelligence can be punished criminally with prison time or fines.”
The relevant section of the Espionage Act, Title 18 Section 793(f), states:
“Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) 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 … Shall be fined under this title or imprisoned not more than ten years, or both.”
As National Review’s Andrew C. McCarthy pointed out at the time, Comey’s July 2016 statement exonerating Clinton rewrote this federal statute to give Clinton a pass.
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, they are guilty of serious wrongdoing. The lack of intent is irrelevant — people never intend the bad things that happen due to gross negligence.
Sources that spoke to The Hill claimed that at least three top FBI officials were involved in changing the language of Comey’s statement, including Deputy Director Andrew McCabe, General Counsel James Baker, and chief of staff Jim Rybicki.
Those names should raise eyebrows. McCabe was the former acting director of the FBI after Comey’s firing and his wife came under scrutiny for previously undisclosed ties to the Clintons.
Rybicki — as Senators Chuck Grassley, R-Iowa, and Lindsey Graham, R-S.C., called attention to in August — was one of the FBI officials interviewed by the Office of Special Counsel who suggested the investigators in charge of the Clinton case had predetermined what the outcome was going to be.
As for Baker, a confidant of James Comey, he is reportedly the subject of a Department of Justice criminal investigation for allegedly leaking classified national security information to the media.
In short, of the three top FBI officials that had a hand in watering down Comey’s statement, one has Clinton ties, one suggested that the fix was in to let Hillary Clinton off the hook, and one is under investigation for criminally leaking information to the media to undermine the Trump administration.
When Comey went public with the final version of his statement, he blasted Hillary Clinton, building a strong case against her. Then, surprising everyone, he declared he would not recommend criminal charges be filed against her.
Comey would subsequently justify his decision by claiming that no “reasonable prosecutor” would bring a case against Clinton. As he told Congress in sworn testimony: “I know the Department of Justice, I know no reasonable prosecutor would bring this case. I know a lot of my former friends are out there saying they would. I wonder where they were in the last 40 years, because I'd like to see the cases they brought on gross negligence. Nobody would, nobody did.”
“Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case,” he explained.
If Comey had gone forward with his early draft pointing out exactly how Clinton handled classified information with “gross negligence,” in violation of the Espionage Act, perhaps a “reasonable” prosecutor would have taken the case.
But as it stands, Comey’s statement was softened, and Hillary Clinton evades justice.
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Chris Pandolfo is a staff writer and type-shouter for Conservative Review. He holds a B.A. in politics and economics from Hillsdale College. His interests are conservative political philosophy, the American founding, and progressive rock. Follow him on Twitter for doom-saying and great album recommendations @ChrisCPandolfo.