Does Jim Comey Think Thomas Drake Exhibited Disloyalty to the United States?

As you’ve no doubt heard, earlier today Jim Comey had a press conference where he said Hillary and her aides were “extremely careless in their handling of very sensitive, highly classified information” but went on to say no reasonable prosecutor would prosecute any of them for storing over 100 emails with classified information on a server in Hillary’s basement. Comey actually claimed to have reviewed “investigations into mishandling or removal of classified information” and found no “case that would support bringing criminal charges on these facts.”

Our investigation looked at whether there is evidence classified information was improperly stored or transmitted on that personal system, in violation of a federal statute making it a felony to mishandle classified information either intentionally or in a grossly negligent way, or a second statute making it a misdemeanor to knowingly remove classified information from appropriate systems or storage facilities.

[snip]

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. 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.

To be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences. To the contrary, those individuals are often subject to security or administrative sanctions. But that is not what we are deciding now.

Before we get into his argument, consider a more basic point: It is not Jim Comey’s job to make prosecutorial decisions. Someone else — whichever US Attorney oversaw the prosecutors on this case, Deputy Attorney General Sally Yates, or Loretta Lynch — makes that decision. By overstepping the proper role of the FBI here, Comey surely gave Lynch cover — now she can back his decision without looking like Bill Clinton convinced her to do so on the tarmac. But he has no business making this decision, and even less business making it public in the way he did (the latter of which points former DOJ public affairs director Matthew Miller was bitching about).

But let’s look at his judgment.

Given that Jeffrey Sterling has been in prison for a year based off a slew of metadata (albeit showing only 4:11 seconds of conversation between James Risen and Sterling) and three, thirty year old documents, classified Secret, describing how to dial a phone, documents which were presented to prove Sterling had the “intent” to retain a document FBI never showed him retaining, I’m particularly interested in Comey’s judgment that no reasonable prosecutor would bring charges based on the facts found against Hillary. Similarly, given the history of the Thomas Drake prosecution, in which he was charged with Espionage because he kept a bunch of documents on NSA’s fraud, at the direction of the Inspector General, which the FBI found in his basement.

I can only imagine Comey came to his improper public prosecutorial opinion via one of two mental tricks. Either he — again, not the prosecutor — decided the only crime at issue was mishandling classified information (elsewhere in his statement he describes having no evidence that thousands of work emails were withheld from DOJ with ill intent, which dismisses another possible crime), and from there he decided either that it’d be a lot harder to prosecute Hillary Clinton (or David Petraeus) than it would be someone DOJ spent years maligning like Sterling or Drake. Or maybe he decided that there are no indications that Hillary is disloyal to the US.

Understand, though: with Sterling and Drake, DOJ decided they were disloyal to the US, and then used their alleged mishandling of classified information as proof that they were disloyal to the US (Drake ultimately plead to Exceeding Authorized Use of a Computer).

Ultimately, it involves arbitrary decisions about who is disloyal to the US, and from that a determination that the crime of mishandling classified information occurred.

For what its worth, I think most of these cases should involve losing security clearances rather than criminal prosecution (though Petraeus also lied to FBI). But we know, even there, the system is totally arbitrary; DOJ has already refused to answer whether any of Hillary’s aides will be disciplined for their careless handling of classified information and Petraeus never did lose his clearance. Nor did the multiple witnesses who testified against Sterling who themselves mishandled classified information lose their security clearance.

Which is another way of saying our classification system is largely a way to arbitrarily label people you dislike disloyal.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

11 replies
  1. pdaly says:

    By having Comey make this argument in public (which the article states is not commonly done) instead of the Attorney General, does it protect Loretta Lynch from becoming a fact witness? The Attorney General’s office avoids the appearance of inconsistently applying the law. Does this prevent Drake or Sterling from asking for a retrial?

  2. Denis says:

    I don’t believe Comey has made any “decision” here except what to
    recommend to the DoJ suits. Comey doesn’t decide to indict or not to
    indict; not even the DoJ does that. DoJ looks at the facts and the
    recommendation made by FBI and decides whether to take the case
    to a grand jury, and the grand jury decides whether or not to indict.
    .
    This is not over by a long shot, the reason being that Hil’s primary
    concern is staying out of prison, not getting into the WH. At this
    point, getting a Democrat into the WH is the way she’ll stay out of
    prison. Double jeopardy doesn’t attach until the first witness is
    called at trial. So Hil’s exposure to prosecution is very much a
    function of who wins the WH. Republicans could re-open the
    investigation de novo or they could take Comey’s work and go to
    a grand jury with it. .
    .
    If Hil’s polls now plummet — and they already dropped 5 points last week —
    she will have to bail out and let Biden take over. He would beat Trump
    easily and Hil would have no worries about doing a long-term AirBnB at
    Leavenworth. If her polls drop another 10 points and it looks like an uphill
    fight to get past Trump and into the Oral Office, famously renamed by her
    husband, she likely won’t take the chance. I wouldn’t.
    .
    I don’t think Trump is going to make a big stink about this . . . yet. He wants
    Hil to get the nomination and then the Republicans will just pound the
    whole Democratic machine into the turf with this non-prosecution, particularly
    given the Bill-Loretta snafu. Some are now reporting that the reason Bill says he
    was in Phoenix was for a golf game, but the temp there was 104F and the cops
    had even closed the public walking trails in the area. Whether or not the story
    about Bill’s phoney golf story is true, the conspiracy stories are getting legs,
    and Comey just gave them even more legs.
    .
    This is one of the most exciting elections I’ve ever had the misfortune to see.

    • bmaz says:

      This is completely loopy. Yes, it is over, and yes Comey did indeed usurp the proper charging jurisdiction of the attorney section of DOJ when he publicly announced a specific finding that “no reasonable prosecutor” would bring the case.

  3. lefty665 says:

    John Kiriakou commented the other day that the judge in his case clearly stated that intent had no bearing on guilt on a charge of mishandling classified information. The issue was the mishandling. That got him a felony conviction and a 30 month jail sentence. Intent would have made it worse.
    .
    Remarkable that the “Off with their heads” emails where Hillary approved drone strikes using her Blackberry and home server merit no more than a “tsk tsk” from Comey.
    ,
    Curious too that Comey held his press conference shortly before Hillary took off in Air Force One to campaign with Obama in North Carolina. No unseemly thumb on the scales there or with Biden either.

  4. lefty665 says:

    EW, consistent with your comments:
    .
    Matthew Miller, who was a spokesman for the Department of Justice under Attorney General Eric Holder, called Comey’s press conference an “absolutely unprecedented, appalling, and a flagrant violation of Justice Department regulations.” He told The Intercept: “The thing that’s so damaging about this is that the Department of Justice is supposed to reach conclusions and put them in court filings. There’s a certain amount of due process there.”
    .
    https://theintercept.com/2016/07/05/fbi-director-comey-preempts-justice-department-by-advising-no-charges-for-hillary-clinton/

  5. RexFlex says:

    I think the idea that it’s about loyalty is supported by Obama’s comments saying on 60 Minutes 6 months ago HRC would never jeopardize national security of the US. As much as it’s been mentioned that the current administration has a severe hatred for whistleblowers it makes sense and is consistent.

    Couple of thoughts:
    How can someone who is so smart, surrounding by smart people do something so stupid and then claim they were just careless?

    Is it me or does it appear that everyone in the media supporting HRC look like they are just vying for a job in the Clinton administration? IE; John Heilman, Steve Ratner, Jonathan Capeheart etc, etc.

  6. jawbone says:

    Well, it looks like HRC has joined the Big Banksters and the Big Banks in being Too Big To Fail.

    The right amount of power and wealth is their get out jail card. I doubt she’ll even get a fine.

    And about the differing treatment of whistle blowers? Just a class (economic class) issue.

    Nothing to see here, just move along. The MCM (Mainstream Corporate Media) will let you little people know when it’s time to vote for Hillary.

    (Also, listening to Tony Blair justify his Iraq War actions has made me some what sick to my stomach.)

  7. Don Bacon says:

    Hillary was an insider threat. “Insider threat is the threat that an insider will use his/her authorized access, wittingly or unwittingly, to do harm to the security of the United States. This threat can include damage through espionage, terrorism, sabotage, violence, unauthorized disclosure of national security information, or through the loss or degradation of departmental resources or capabilities. Insider threat prevention and detection therefore focuses on the trusted insider who misuses his or her access to do damage to the Department.”– here

  8. Ol' Hippy says:

    As exciting as this upcoming clown car of an election proceeds we have to give a requiem to all the average hardworking Americans. They are the ones losing in this race of races as the federal government self-destructs. The secret corruption is now being displayed in all it’s ugliness for even a casual observer to see. We can now only hope we move along on life support but I fear it will be ending fairly soon. Sorry.

  9. earlofhuntingdon says:

    Perhaps Mr. Comey, in a rare fit of empathy for other elites, simply remembered where Mr. Rove hid the private administration and GOP e-mail servers during his Vice President’s term of office, and decided that sauce for the goose. But yes, Mr. Comey seems to forget many things, including that he’s no longer on the legal staff of the DoJ, just one of its employees working in law enforcement.

  10. lefty665 says:

    “It is a felony for anyone entrusted with lawful possession of information relating to national security to permit it, through ‘gross negligence’ to be removed from its proper place of custody and disclosed. ‘Gross negligence’ rather than purposeful conduct is enough. Yet Mr. Comey seems to have based his recommendation not to prosecute on the absence of evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information…”
    .
    “To be ‘extremely careless’ in the handling of information that sensitive (seven email chains classified at the Top Secret/Special Access Program level) is synonymous with being grossly negligent.”
    .
    “And what of the finding that the investigation did not disclose ‘clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information’? Even the felony statute requires no such evidence, and no such intent.”
    .
    “The misdemeanor involves simply removal of classified documents to an authorized location.”
    .
    From Michael Mukasey 7/6/16 WSJ.

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