No Reasonable Prosecutor Would Bring Such a Case

Having been on the side of leading or as a member of a team charged with conducting several investigations, usually aircraft accident, accidental death of a service member, or an investigation to determine possible criminal activity, I found the process of conducting investigations to be relatively uniform.

Whether an aircraft accident or criminal investigation process, as an investigator I followed a template and a script. When I drafted my report, I was obligated to follow a certain format. As a team member or as an individual, I began with an Executive Summary—what it was specifically that I or our group of investigators had been charged to discover. In the case of an aircraft accident, this might be “to determine the causal factors and probable cause of the July 9, 2000 mishap of aircraft serial number 138820.” The investigator included a narrative of their understanding of the accident and the process they used to investigate the background of the aircraft and the aircrew—we would document our review of maintenance records, pilot flight logs, etc.

The real meat of an investigation is the determination of FACTS and FINDINGS. These could be a lengthy list of what documents and actions which were found during the discovery phase of the investigation. Examples: FACT: A review of the maintenance records determined the aircraft was released for flight per the applicable maintenance instructions. FINDING: Pilot failed to regain control of the aircraft using approved recovery procedures after departing controlled flight. Conclusions and recommendations follow. A good investigation should leave no doubt in anyone’s mind that the template provided and the process followed was thorough and complete. Essentially, even I couldn’t leave the eggs out of the recipe if I were making a lemon meringue pie.

Having conducted several investigations and briefed my findings, conclusions, and recommendations to senior leaders, I found FBI Director Comey’s Conclusion statement simply bizarre. “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.” There is a reason the apoplectic Republicans in Congress catapulted themselves into the rafters of the Capitol Building, and demanded Director Comey explain himself. Based on the available information in the public domain, there should have been sufficient evidence for a reasonable prosecutor to charge Hillary Clinton on violating a number statutes and bring the case to court.

If a real investigation had been performed, the FINDINGS and FACTS would have demonstrated clearly which violations of the statutes, directly and tangential, which were attributable to her mishandling of classified information. FINDINGS and FACTS would have been unambiguous, that while there may have been some “potential violations of the statutes,” the preponderance of the information would have outlined those easily proven and documented violations of the statutes. Having worked in the intelligence community for a few years, with top secret clearances and having to undergo a polygraph, I was naturally drawn to the expected violations of, specifically, 18 U.S. Code Chapter 37 – ESPIONAGE AND CENSORSHIP.

With the publically available data from open sources, there are multiple instances of Hillary Clinton’s violations of 18 U.S. Code § 793 – Gathering, transmitting or losing defense information, 18 U.S. Code § 794 – Gathering or delivering defense information to aid foreign government, and 18 U.S. Code § 798 – Disclosure of classified information. A properly conducted investigation would list the hundreds if not thousands of Hillary Clinton’s individual violations of 18 U.S. Code. FACT: Over 1,200 classified emails, from confidential up to and including special access program material was found on Mrs. Clinton’s email server. FACT: Mrs. Clinton signed a nondisclosure statement when she got to the State Department, in which she agreed to “never divulge anything marked SCI [sensitive compartmented information] or that I know to be SCI to anyone who is not authorized to receive it without prior authorization from the U.S. Government department or agency that authorized my access.”
Then there is 18 U.S. Code Chapter 19 – CONSPIRACY. Based on the publically available data, there appeared to be an obvious strategy to violate 18 U.S. Code § 372 – Conspiracy to impede or injure officer. During a document review and interviews, an investigator should have no problem determining if the statute was violated. On the FINDING of purposely deleting upwards of 33,000 emails so as to prevent or impede an investigator “in the discharge of his official duties, each of such persons shall be fined under this title or imprisoned not more than six years, or both.” The evidence was compelling, with the actions to set up and operate an external email server, Hillary Clinton, her staff and lawyers, and her computer guy’s actions were designed to do whatever was necessary to keep the former Secretary of State’s emails away from the public and the government, and from an investigator. This is conspiracy. FINDINGS and FACTS.

Additionally, there would be thousands of violations of 18 U.S. Code Chapter 93 – PUBLIC OFFICERS AND EMPLOYEES. During an interview, MSNBC’s Chuck Todd specifically asked Hillary Clinton, “Obviously the central question here is whether you violated the law in the handling of classified information. 18 U.S. Code 1924, unauthorized removal or retention of classified documents or material. Why do you believe you did not violate this law? It says here, being an officer, employee, contractor, or consultant in the United States and by virtue of his or her office, if they become possessed of documents or materials containing classified information of the United States, knowingly removing such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location. How did your private server where you kept this classified information, some of which was retroactive I understand, after your term as secretary of state, how is that not a violation of this code?” This would have been another FINDING.

The rest of FBI Director Comey’s Conclusion statement is not a conclusion, a recapitulation of the FINDINGS and FACTS, but a non sequitur. “…our judgment is that no reasonable prosecutor would bring such a case.” (Italics and highlight mine.) This isn’t even a formal recommendation of an investigation. A reasonable recommendation would sound like: Based on the FINDINGS and FACTS that Hillary Clinton clearly violated, at a minimum, 18 U.S. Code Chapters 19, 37, and 93, an indictment is clearly justified and warranted. Director Comey’s statement is akin to “leading the witness.”
Moreover, the FBI Director ignored FINDINGS and FACTS and the investigation’s CONCLUSION, and articulated some a new legal standard should be employed. No reasonable prosecutor would bring such a case.

Director Comey repeated these three odd incongruous words throughout his testimony on Capitol Hill. What is meant by “reasonable prosecutor?” I was reminded of what is a “Reasonable Person?” What is reasonable person theory?

A phrase frequently used in Tort and Criminal Law to denote a hypothetical person in society who exercises average care, skill, and judgment in conduct and who serves as a comparative standard for determining liability.

The decision whether an accused is guilty of a given offense might involve the application of an objective test in which the conduct of the accused is compared to that of a reasonable person under similar circumstances. In most cases, persons with greater than average skills, or with special duties to society, are held to a higher standard of care. For example, a physician who aids a person in distress is held to a higher standard of care than is an ordinary person.

Under the “reasonable person” theory, and in the distracting context that no reasonable prosecutor would bring such a case, is it unreasonable to suggest a reasonable DOJ prosecutor should be someone who is held in high esteem, to uphold a higher standard of law and jurisprudence than some backwater small town Atticus Finch or Seinfeld’s Jackie Childs. The Republican Congressmen at the FBI Director’s Hearing, especially those who are attorneys, were understandably distressed and angry at the Nation’s chief law enforcement officer’s blatant prestidigitation, diversion, and disinformation. FINDINGS and FACTS were obviously ignored and neutered as “potential violations of the statutes regarding the handling of classified information.” (Italics and highlight mine.) No discussion of FINDINGS and FACTS regarding an obvious conspiracy to “impede an investigator in the discharge of his official duties.” Apparently, the former Secretary of State is not only too stupid to be able to handle classified information—she was just reckless and that there was no intent—but the calculated deletion of 33,000 emails into cyberspace (or Eric Snowden’s or Putin’s inbox, et alia ) was just an unsophisticated version of “the dog ate my homework.” When he was on stage, Bud Abbott played like he was an idiot. He and Lou Costello were very smart men. We are being led to believe that when Mrs. Clinton is on stage and being interviewed by the FBI she is a complete incompetent when it comes to the safeguarding of classified information.

A real investigator’s head would have exploded. There were no discussions of FINDINGS and FACTS, other than the legally squishy meme of “being reckless,” regarding the obvious violation of “the unauthorized removal or retention of classified documents or material.” 18 U.S. Code Chapter 93 – PUBLIC OFFICERS AND EMPLOYEES. FACT: Any accidental unauthorized removal or retention of classified documents or material constitutes, at a minimum, gross negligence.
FBI Director Comey said during his testimony, “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.” Also, “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.”

Really? What is the difference between the cases against Alger Hiss and Hillary Clinton? Alger Hiss lied to the FBI about how he, a Democrat, lawyer, and senior State Department official used his WOODSTOCK typewriter to move classified material out of the building at Foggy Bottom and push it into the hands of his soviet handler. Alger Hiss, whose Soviet codename was ALES, was ultimately charged—not with gross negligence, or being reckless, or even espionage, but with perjury. Hillary Clinton, a Democrat, lawyer, and senior State Department official used a BlackBerry to move classified material out of the building at Foggy Bottom and push it into the unsecure hard drive of an unprotected email server. If hackers didn’t have a field day with that bathroom server, I would have asked for a FINDING: Who had administrator rights to that server?

Technology is wonderful when you can remove the middle man. Hillary Clinton’s only saving grace was that unlike the poorly-informed former attorney Alger Hiss, she learned a crucial lesson from the old soviet spy and, apparently, didn’t lie to the FBI. And when Director Comey informed the Congress the former Secretary wasn’t deposed formally, that she did not testify under oath, blood leaked from my eyes. Having to put senior Marine Corps officers under oath was not pleasant but necessary in the conduct of my investigations. Not putting Mrs. Clinton under oath was a Get Out Of Jail Free Card. Not to do so was an abrogation of one’s responsibilities when conducting an investigation. It is a necessary tool to conduct an investigation, so why didn’t they do it? Maybe it was because she didn’t have a soviet or Muslim Brotherhood codename. No one at the Congressional hearing would articulate the obvious—you didn’t give her a chance to lie to the hear-no-evil FBI. Therefore, her whole interview was bogus. Maybe Director Comey and Mrs. Clinton talked about their grandchildren.

Even Inspector Clouseau, the fictional inept and incompetent police detective in the French Sûreté, would find the former Secretary’s own admission of 33,000 emails, scrubbed or “wiped clean” from a private server, to be highly suspicious. It is so irregular in the intelligence community that anyone else on Planet Earth caught doing this unilateral action would have been the immediate roommate of Private Bradley Manning at the military prison at Fort Leavenworth, Kansas. FINDING. The intentional destruction or negligent loss of evidence suggests that Hillary Clinton believed that her emails were harmful to her, and that consciousness of guilt led her to destroy, hide or lose them. Under the rubric of “lack of intent,” the FBI Director wouldn’t acknowledge the FINDINGS and FACTS of Secretary Clinton’s admitted intentional destruction of her emails—classic spoliation of evidence—even if her 11-foot high stack of emails fell on top of him.

Hillary Clinton is the new Houdini. The Department of Justice is as corrupt as her magical support crew at the State Department since no reasonable (DOJ) prosecutor could find a dripping wet indictable charge even if they used a divining rod while standing in a wading pool. Maybe the ghost of Vince Foster paid them a visit. Director Comey and his FBI are a joke. Reminds me of the old line: What did the county sheriff say about a robber who had been shot 15 times? “Worst case of suicide I’ve ever seen.” No reasonable prosecutor would bring such a case. Nothing to see here.

Isn’t it time we get some reasonable people in these positions?