LeMieux: Voters left to give verdict on Hillary Clinton

FBI Director James Comey prosecuted Hillary Clinton with his remarks and then declined to make the recommendation that she be prosecuted in fact.   Associated Press
FBI Director James Comey prosecuted Hillary Clinton with his remarks and then declined to make the recommendation that she be prosecuted in fact. Associated Press
Published July 6, 2016

I thought I was witnessing history.

FBI Director James Comey held an unscheduled news conference Tuesday on Hillary Clinton's use of a personal email server during her time as secretary of state. He prefaced his remarks by stating he was going to "include more detail about our process" than he ordinarily would because "the American people deserve those details in a case of intense public interest" and that he had "not coordinated or reviewed this statement in any way with the Department of Justice or any other part of the government."

He stated dramatically: "They do not know what I am about to say."

Before dissecting what he would go on to say, a little background on Comey. He is an extraordinary public servant. He is a career prosecutor who served in New York and Virginia, and was the U.S. attorney for the Southern District of New York. In 2003, he became deputy attorney general, the No. 2 position in the Justice Department, serving under Attorney General John Ashcroft.

It was in that job that Comey had his finest hour. As reported by the Washington Post, in March 2004 Ashcroft was hospitalized in an intensive care unit. The power and authority of the attorney general was transferred to Comey while Ashcroft was hospitalized. During that time, the Justice Department released its determination that President George W. Bush's warrantless domestic surveillance program was not legal. On the night of March 10, Comey received an urgent call. The chief of staff to the president, Andrew Card, and White House counsel Alberto Gonzales were on their way to the hospital to persuade an impaired Ashcroft to reauthorize Bush's domestic surveillance program. Comey raced, sirens blaring and lights flashing, to the hospital and was able to speak to Ashcroft moments before Card and Gonzales arrived. Based on Comey's counsel, Ashcroft refused to sign the reauthorization. The crisis was ultimately resolved when Bush overruled Card and Gonzales. President Barack Obama thought so much of this profile in courage that he appointed Comey as head of the FBI even though Comey is a registered Republican.

With that backdrop, and with the respect of Republicans and Democrats alike, Comey stood before the cameras on Tuesday to address the growing scandal of Clinton's misuse of private email as secretary of state. Like the good prosecutor he is, he made his case. He stated the law — telling Americans it was a felony to mishandle classified information intentionally or in a grossly negligent way. He then described the extensive work the FBI had undertaken: the review of 30,000 emails turned over by Clinton; the review of thousands of additional emails drawn from government servers; and the analysis of millions of email fragments from deleted emails.

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Of the emails and email fragments reviewed, Comey reported 113 emails in 52 email chains contained classified information. Eight of those chains contained information that was top secret; 37 chains contained secret information; and 10 contained confidential information.

This directly refuted several claims Clinton previously made in her defense. First, she did not turn over all of her work-related emails, and most importantly she did have classified, even top secret, information on her private devices. Perhaps most damning, and also contrary to what Clinton had claimed, Comey concluded that Clinton's private devices may have been accessed by hostile actors (she even used her private devices while in hostile countries) and that "hostile actors gained access to the private commercial email accounts of people with whom Secretary Clinton was in regular contact from her personal account."

Having presented the facts, Comey then passed judgment. He found that none of these emails should have been on any unclassified system without governmental security; that Clinton should have known the information she was sending and receiving was highly sensitive, even if not marked as such; that the security culture of the State Department she led was lacking compared to the rest of government; and that Clinton and her colleagues were "extremely careless in their handling of very sensitive, highly classified information."

With that, I was ready for the announcement. The FBI would recommend to the Justice Department that Clinton be criminally prosecuted. After all, if Clinton was "extremely careless" with sensitive information, wasn't she also grossly negligent? What is more careless or negligent than "extremely"? We were about to witness Clinton, campaigning with the president, announce that she was suspending her campaign for the presidency.

But that is not what happened.

In a quick about-face, Comey concluded the news conference saying there was no precedent for a prosecution where there was no intent, and that "no reasonable prosecutor" would bring such a case. Excuse me? Congress wrote the law to include gross negligence, not just intentional misconduct, for a reason.

So, what happened? Why did Comey prosecute her with his remarks and then decline to make the recommendation that she be prosecuted in fact?

It is hard to imagine his reasoning, but here is a try. Prosecutors do not like to indict candidates — they do not want that much power to impact the democratic process. Normally, they wait until after the election, but Comey could not take that path with the stakes being so high. So he tried to carve a middle path — prosecute her in the court of public opinion so the public could render the ultimate verdict by not electing her president.

I think he made a grave error in judgment. Only time will tell.

George LeMieux served as a Republican U.S. senator, governor's chief of staff and deputy attorney general.