Making a materially false statement to Congress is a crime under 18 U.S.C. 1001.50 It is also obstruction of justice under 18 U.S.C. 1505 and 1515(b) to act “corruptly” by “withholding, concealing, altering, or destroying a document or other information” in a congressional investigation.51 Not all of Clinton’s emails were produced as the committee had demanded and as Clinton had represented. The act of wiping her server clean of all original documentary evidence sought by congressional committee meets the legal requirements of these crimes.
Significantly, Clinton broke other laws involving the very serious matter of mishandling of classified documents. In his statement to the national media on July 5, 2016, FBI director Comey revealed his findings:
From the group of 30,000 emails returned to the State Department, 110 emails in 52 email chains have been determined by the owning agency to contain classified information at the time they were sent or received. Eight of those chains contained information that was Top Secret at the time they were sent; 36 chains contained Secret information at the time; and eight contained Confidential information, which is the lowest level of classification. Separate from those, about 2,000 additional emails were “up-classified” to make them Confidential; the information in those had not been classified at the time the emails were sent.52
Comey’s statement should have been the equivalent of an indictment of Clinton under 18 U.S.C. 793(f):
Whoever, being entrusted with or having lawful possession or control of any document . . . relating to national defense, (1) through gross negligence permits the same to be removed from its proper place of custody . . . or (2) having knowledge that the same has been illegally removed from its proper place of custody . . . shall be fined under this title or imprisoned not more than ten years, or both.53
Clinton surely knew that if her emails were stored on her private server in the basement of her home, there would inevitably be innumerable classified documents residing in an unauthorized place. This very clearly jeopardized national defense as the statute envisions. At the very least, her conduct was grossly negligent as the above statute requires.
But beyond gross negligence, Clinton’s handling of classified information appears to have been quite intentional. She intended to establish a nongovernment server and intended that it be used for all her government business, which necessarily included classified documents. Such willful and deliberate retention is defined as criminal under 18 U.S.C. 793(d) and (e).54 This will be explored in greater detail in the next chapter.
A separate law also criminalizes Clinton’s actions. 18 U.S.C. 1924(a) prohibits the following:
Whoever, being an officer . . . of the United States, and, by virtue of his office, employment, position, or contact, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this titled or imprisoned for not more than five years, or both.55
The facts show that Clinton intended to create a private server. She knew it was unauthorized. Yet, she deliberately used it for all her electronic communications, including classified documents. These actions are violations of the above-stated statutes. Other people in government have been prosecuted and convicted with much less incriminating evidence, as will be explained in the next chapter.
In addition to the potential felony charges outlined, Clinton could also be charged with multiple conspiracy counts since her actions involved acting in concert with other participants as defined in 18 U.S.C. 371 and 18 U.S.C. 286.56
Clinton’s Protectors
The evidence shows that Clinton felt privileged and above the law. She wanted to control the records of her high office and keep them secret at any cost. She thwarted public access to nonclassified documents. In the process, she left vital classified information, including “top-secret” material, vulnerable to theft by hackers, foreign intelligence services, and governments seeking to steal America’s national security information.
Clinton’s principal defense of her actions was, in truth, no defense at all. She insisted that she utilized a private server “for convenience” as if that was somehow a legal excuse for violating multiple criminal statutes.57 The law abides no such defense, as Lord Justice Pearce observed long ago. She also attempted to shift the blame or minimize her responsibility by claiming that others in her position had done the same thing.58 That is a fatuous argument. It is a little like saying that other people have robbed banks, so it is okay for me to rob a bank.
While it is true that some government officials had in the past used private email accounts for some occasional official business, the practice was rare. None of Clinton’s predecessors created a private server for all their communications as secretary of state. The reasons were quite simple. The law imposes strict rules limiting such use. First, the emails must be carefully preserved by the employee’s agency.59 Second, the communications cannot be destroyed by the employee.60 Third, and most significantly, no classified material can be maintained on any private account.61
Clinton managed to violate these provisions of law during her four-year tenure as secretary of state. The public was unaware because there was no one in authority at the State Department to oversee whether Clinton was complying with the law. This would have been the duty of an internal inspector general who is charged with uncovering mismanagement and corruption. However, during the entire time of Clinton’s service, President Barack Obama never nominated anyone to fill the position.62 While there was an “Acting Inspector General,” there was never a permanent I-G who might have exercised greater authority to uncover how Clinton had circumvented the law. This was likely a deliberate arrangement furtively negotiated by Clinton. Any other explanation was implausible.
Joseph diGenova, a former U.S. Attorney for the District of Columbia who also served as an independent counsel, was blunt in his assessment of how Clinton avoided detection:
She was surrounded by a group of people at senior levels who protected her and protected the information. And, of course, it wasn’t on government servers, so there wasn’t an easy way for people in government to find out about it.
So, she had a scheme, she had a methodology, and they had made sure that a watchdog was not present as long as she was Secretary of State. It was brilliantly carried out and it was accomplished with the complicity of the president who agreed not to appoint a permanent Inspector General.
The president and the people in the White House knew she had a private server and they didn’t object.63
Doug Burns, who served as assistant U.S. Attorney for the Eastern District of New York, concluded that Clinton broke the law and should have been indicted for several crimes:
The establishment of the private server and its use with classified information plainly violated the law, all of her excuses notwithstanding. And to those excuses, the withholding, wiping and destruction of such huge amounts of email evidence removes all doubts about intent and knowledge.64
Given all the compelling evidence of criminality, how can it be explained that Hillary Clinton managed to escape prosecution?
It appears she had considerable help.
Chapter 2
Comey Contorts the Law to Clear Clinton
It is a public scandal when the law is forced to uphold a dishonest act.
—LORD EDWARD MACNAGHTEN, HOUSE OF LORDS (1894)
After a year of gathering incriminating evidence of wrongdoing, FBI director James Comey held a news conference on July 5, 2016, to announce the findings of his investigation.
Across the country, many of those closely following the case expected him to outline evidence of a series of crimes committed by Hillary Clinton for the Department of Justice to pursue. After all, many top officials who committed similar transgressions on a smaller scale saw criminal charges that ended their political careers.
It was one of the mos
t bizarre, bewildering, and incomprehensible explanations of a legal case in modern American history. Comey detailed evidence of crimes but did not refer her for prosecution. Comey’s assessment of the law was not just flawed, but completely inaccurate and conspicuously wrong. His reasoning for not recommending prosecution of Clinton was beyond improbable. It was impossible.
Just as Lord MacNaghten feared, Comey bent and distorted the law to uphold dishonest acts by Clinton.
Comey’s Tortured Interpretation
In front of a national media, Comey read a lengthy statement that presented a compelling case of how Clinton repeatedly violated the law: 110 classified emails were stored by her on an unsecured private server in her home without authorization and “none of these emails should have been on any kind of unclassified system.”1
Comey dismissed as untrue Clinton’s ever-changing excuses that classified documents were marked in a way that she would not recognize them as such. “But even if information is not marked ‘classified’ in an email, participants who know or should know that the subject matter is classified are still obligated to protect it,” he observed. For example, Comey cited seven email chains involving top-secret communications, stating, “There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position . . . should have known that an unclassified system was no place for that conversation.”2
Clinton’s routine failure to protect America’s classified information jeopardized national security. “We assess it is possible that hostile actors gained access to Secretary Clinton’s personal email account,” Comey concluded.
Having laid out a meticulous case of how Clinton broke the law, Comey suddenly offered an implausible reason for why she should not be prosecuted:
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.3
The first part of Comey’s finding that “there is evidence of potential violations of the statutes” was more than legally sufficient to refer the case to the Justice Department for criminal prosecution and presentment of evidence before a grand jury to seek an indictment. He unambiguously asserted facts which would meet any standard of probable cause that crimes appeared to have been committed by Clinton. On this basis alone, Comey was duty-bound to tender a criminal referral for prosecution. No subsequent qualifying predicate or condition to the statement can eliminate that legal requirement under the law.
The second part of Comey’s statement that “no reasonable prosecutor would bring such a case” was nothing more than speculation by him personally. The law does not accept this as a valid basis for declining to levy charges. Moreover, Comey had no grounds for making such a bold claim. He appeared to have simply invented it. In truth, plenty of prosecutors would have been willing to “bring such a case” and, indeed, many have done so under similar circumstances.
All the former FBI officials interviewed for this book said they had never heard of a decision being based on what “a reasonable prosecutor” might or might not do. Danny Coulson, who served as deputy assistant director of the FBI during his three decades at the bureau and is also a lawyer, stated:
My view, and the view of agents in the field, was shock. When Comey came to the end and said no reasonable prosecutor in the entire country would prosecute Clinton, that was a total lie. I was flabbergasted. The agents were, too. It didn’t make any sense to any of us.
There was never an FBI investigation of Hillary Clinton. Comey controlled it from start to finish and came out with the results he wanted.4
Former assistant FBI director Steve Pomerantz was equally shocked and appalled by what he witnessed the day Comey made his televised announcement:
I could have fallen off my chair while watching that news conference. Setting aside the conclusion he drew, it is not the FBI’s job to recommend prosecutions. The FBI investigates and then turns it over to the Department of Justice. In all my years in the FBI—over thirty years—and hundreds of investigations, probably thousands, I never ever saw that done. For Comey to do that was astonishing and wrong.5
Comey’s assertion that “no reasonable prosecutor would bring such a case” was remarkably inaccurate. In truth, federal prosecutors have brought numerous cases against individuals who mishandled classified documents in much the same way that Clinton did.
Samuel “Sandy” Berger, who served as national security adviser under President Bill Clinton, removed classified documents from the National Archives and stored them in an unauthorized location. Like Clinton, Berger said he did it for convenience.6
David Petraeus, who was director of the Central Intelligence Agency under President Barack Obama, kept classified documents at his home and allowed his biographer, with whom he was having an affair, to read them.7 Both Berger and Petraeus faced criminal charges and pleaded guilty. Both were fined, put on several years’ probation, and stripped of their security clearances.
John Deutch served as CIA director under President Clinton. Classified materials, including top-secret documents, were found on a computer in his home. While negotiating a plea agreement with prosecutors, he received a presidential pardon.8
Crucially, Petraeus, Berger, and Deutch never worked for the government again. Even though none of them served time behind bars, their prosecutions and inability to maintain security clearances meant that the holding of high office was an impracticality. Had Clinton faced the same legal standard for mishandling classified documents, her ambition to serve as president would have ended.
Other individuals who did not hold public office have also been prosecuted for the same actions as Clinton. Navy engineer Bryan Nishimura downloaded classified documents on an unsecured computer system and stored them on personal electronic devices.9 He also destroyed some of the evidence. Like Clinton, he insisted that he had no “intent” to break the law. Nevertheless, he was charged and pleaded guilty in 2015.
In 2016, a young navy sailor, Petty Officer First Class Kristian Saucier, was charged with mishandling classified material when he took six photographs of the inside of a submarine with his personal cell phone, an unauthorized and unsecured device.10 He was eventually forced to plead guilty, even though his attorney argued what he called “the Clinton defense,” claiming that if Clinton could get away with far worse conduct, his client should not be found guilty.11
The fact that the “Clinton defense” did not work for Saucier suggests that it would not have succeeded for Clinton. But, of course, she was never even charged, unlike the sailor and several other troops. In March 2018, having served one year in prison, Saucier received a presidential pardon. Trump had previously noted that the sailor had been held to an unfair “double standard” compared to Clinton, who managed to escape prosecution entirely.12
During President Obama’s term, more than half a dozen people were charged and convicted of mishandling classified materials.13 Nearly all of them served time behind bars. Thus, Comey’s assertion that “no reasonable prosecutor would bring such a case” was demonstrably untrue.
Proof of these prior cases of a similar nature made another of Comey’s legal pronouncements even more bewildering. In his July 5 statement, he advanced this specious claim:
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. . . .14
The prosecutions of Berger, Petraeus, Deutch, Nishimura, and Saucier disproved the first part of Comey’s statement since they all bear a notable resemblance to Clinton’s case. Moreover, at the time Comey cleared Clinton, the FBI and the DOJ were already in the process of building a criminal prosecution against Harold T. Martin III, a forme
r national security contractor who stored classified documents in his home—some of which were on his computers—just as Clinton did. Martin was arrested, charged, and jailed one month after Comey absolved Clinton for doing the same thing.15
The number of classified materials found at Martin’s home was described by federal prosecutors as “astonishing.” The same could be said of Clinton’s tranche of prohibited records. Her computer server held not just a handful of classified documents, but “110 emails in 52 email chains . . . determined by the owning agency to contain classified information at the time they were sent or received. . . . Separate from those, about two thousand additional emails were ‘up-classified,’ ” meaning they were later determined to contain classified information that someone in Clinton’s position should have recognized immediately upon reading them.16
Former deputy assistant director of the FBI Danny Coulson believes that Comey’s statement that he knew of no other comparable cases that would support charging Clinton shows the director was either thoroughly uninformed or severely biased in favor of the ex-secretary of state:
All of these individuals were prosecuted for doing a lot less than Clinton did. I don’t know how Comey can look at those cases and look at what he recommended for her and not see the inconsistency, unless you come to the conclusion that he got the result he preconceived.17
The Criminal “Intent” Canard
In his quest to exonerate Clinton of any wrongdoing, Comey decided to focus on the suspect’s “intent” and then proceeded to misconstrue the law that governs intent.
His tortured logic was set forth in this key sentence during his July 5 announcement:
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