The Russia Hoax

by Gregg Jarrett

  Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.18

  First, nowhere in 18 U.S.C. 793(f) of the Espionage Act which governs the “grossly negligent” handling of classified information does it state that a defendant must have intended to break the law in order to be charged or found guilty. In clearing Clinton on this basis, Comey inferred language that does not exist. He either misinterpreted the law or chose to rewrite it.

  The plain language of the statute is unmistakable: no intent is required. It states, “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” has committed a felony.19 Unlike other sections of the same statute, the word “willingly” was omitted. This was a deliberate decision by Congress when it revised and expanded the Espionage Act decades after it was enacted. Section (f) was added to provide a lesser alternative to willful conduct; that is, grossly negligent behavior.20

  Second, the other sections of 18 U.S.C. 793—except provision (f)—do, indeed, have an “intent” or “willful” requirement. They state that willfully or intentionally retaining classified information in an unauthorized place or transmitting it to an unauthorized person is a felony.21 Clinton also violated these provisions of law in two ways: by intentionally storing classified emails in an unauthorized place (her home) knowing they would be vulnerable to foreign access and by intentionally giving all of her emails, including classified documents, to her lawyers and others for sorting. They did not appear to have received classified security clearance to review them.

  Despite all of this, Comey once again misapplied the law of “intent” in clearing Clinton. The plain meaning of the statutory language and the accepted legal standard is not whether Clinton intended to violate the law, as Comey claimed, but whether her actions were intentional. Unquestionably, they were.

  Even if one were to accept Comey’s interpretation, the statute also makes it a crime if the possessor of classified documents has “reason to believe (it) could be used to the injury of the United States or to the advantage of any foreign nation” if it is kept in an unsecured place.22 How was it possible that Clinton did not have such a reasonable belief? She must have. Anyone in government knows all too well how classified documents must be protected from foreign theft. Failure to safeguard them could cause injury to the U.S. Under the Espionage Act, it is not necessary to prove Clinton intended to jeopardize national security or to aid a foreign power; only that she had reason to believe it could occur as a consequence of her deliberate actions.23

  This is why Clinton was instructed on her first day on the job that all such materials must be maintained in a government-approved and secure location. Her home was not. Clinton knew this and, therefore, had “reason to believe” her actions would jeopardize national security. Remember, Comey openly admitted this in his July 5 statement when he said, “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,” referring to seven email chains involving Top-secret communications.24

  Clinton didn’t just keep classified documents in an unauthorized place, but she willingly gave them to people she knew did not have security clearance to receive them, in violation of the law. Comey acknowledged that his investigation had discovered this when he was cross-examined by Representative Jason Chaffetz during a hearing before the House Oversight Committee a mere two days after he cleared Clinton:

  CHAFFETZ: Did Hillary Clinton give noncleared people access to classified information?

  COMEY: Yes. Yes.25

  According to Representative Trey Gowdy during the hearing, Clinton gave “up to ten people” access to classified information, and none of them were permitted to have such protected materials.26 It is truly baffling why she was not prosecuted on this basis alone.

  Third, the Espionage Act is not the only law that criminalizes the mishandling of classified documents. 18 U.S.C. 1924(a) makes it a crime to knowingly remove classified records without authority “and with the intent to retain such documents or materials at an unauthorized location.”27 The language of this law properly states the legally accepted “intent” standard. It does not require that Clinton intend to violate the law, as Comey stated. Since she never sought authorization for the server that stored them, she should have been charged under this statute.

  During her March 10, 2015, news conference, Clinton admitted that she intentionally used her personal server for the sake of convenience.28 She deliberately refused to utilize a government email account on a secure server hosted by the Department of State, and her top staff fought efforts to have her do so, as the FBI confirmed.29 These are the intentional acts that placed 110 classified documents in a vulnerable location and that, in the end, exposed America’s national security secrets to foreign intrusion.

  As explained in chapter 1, Clinton had been told at the outset of her service as secretary of state that this was against the law, and she acknowledged she understood it when she signed the document entitled “Classified Information Nondisclosure Agreement.”30 The evidence is conclusive that Clinton knew she was committing crimes.

  Clinton Was Grossly Negligent

  Setting up an unclassified email server that houses classified material is the definition of grossly negligent behavior under the Espionage Act. And the sheer quantity of classified information—110 documents—is evidence of gross negligence. Yet Comey managed to either ignore the law or turn its meaning upside down. He described Clinton’s actions as “extremely careless.” What is the difference? There is none.

  In courtrooms across America, the terms “gross negligence” and “extremely careless” are devoid of any difference and, hence, synonymous. When juries struggle with the meaning of “gross negligence,” judges will often explain that it is behavior of a reckless or extremely careless nature. By describing Clinton’s conduct as “extremely careless,” Comey was admitting that Clinton broke the law, although he twisted the language and the statute to create the appearance that she did not.

  Former federal prosecutor Andrew McCarthy explained it this way: “Substantively, these terms are indistinguishable. The emendation is said to be critical, though, because the statute applicable to Clinton’s conduct criminalizes ‘gross negligence.’ If Comey had said the words ‘grossly negligent,’ so the story goes, it would be the equivalent of pronouncing Clinton guilty. That is, it would be impossible to rationalize not charging her because, after all, this was all about negligence.”31 Instead, Comey cleverly altered the language to create the public impression or illusion that Clinton had barely skated across the thin ice of illegality when, in truth, she had plunged right through.

  Comey must have known Clinton committed felonies because an early version of his so-called exoneration statement written in May 2016 did, in fact, use the words “grossly negligent” to describe Clinton’s handling of classified information. Here is how he recounted Clinton’s conduct in the original draft:

  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.32

  This finding would have led to a criminal referral for prosecution of Clinton and an inevitable indictment. But it never happened. And almost no one knew this is what Comey had first determined.

  Two years after Comey scuttled the case against Clinton, documents uncovered by John Solomon of The Hill showed that the words “grossly negligent” had been edited out with red lines on or around June 10, 2016, three weeks before the FBI interviewed Clinton.33 The term “extremely careless” was substituted. These alte
rnative words, on their face, seemed less culpable and more innocuous. But the law views them as identical to “gross negligence.” Thus, it appears that Comey sought to draw a fine distinction where none exists. By avoiding the exact language of 18 U.S.C. 793(f), Comey managed to exculpate Clinton by employing a legal charade.

  Documents made available by the Senate Homeland Security Committee also show that Comey originally found another basis to conclude that Clinton broke the law. In his draft statement, he noted the following:

  Similarly, the sheer volume of information that was properly classified as Secret at the time it was discussed on email (that is, excluding the “up-classified” emails) supports an inference that the participants were grossly negligent in their handling of that information.34

  This finding reinforced the conclusion that Clinton committed crimes. In other words, there were so many classified documents on her unclassified system that she had to have been “grossly negligent” under the criminal statute. However, this part of Comey’s statement was also later modified in a critical way. The entire reference to the “inference” of criminality was deleted.

  Former federal prosecutor Doug Burns believes Comey fully realized that Clinton committed several felonies, but decided to rewrite the law and reshape the facts to clear her:

  It was beyond embarrassing to see the director of the FBI twist himself into a pretzel trying to explain the non-prosecution decision in the Clinton matter. He violated every rule in the book. Agents do not make prosecutorial decisions and prosecutors would never lay out the proof of the crime and then bizarrely explain that no case is being brought. His explanations about intent and carelessness were wrong legally and, again, totally embarrassing.35

  Did Comey Obstruct Justice?

  These actions by Comey raise the specter that the FBI director may have been motivated to absolve Clinton for reasons that have little to do with the law and the facts. If so, this could constitute obstruction of justice.

  The best evidence that shows Comey cleared Clinton for political reasons is that he wrote his statement exonerating her several weeks before all the facts were known. According to the Senate Judiciary Committee, transcripts of interviews with people close to the FBI director prove that Comey drafted his statement well in advance of the FBI’s interviews with Clinton and sixteen other witnesses.36 How can that be? Comey could not possibly have known what legal conclusions to draw in the absence of fundamental facts that only those key participants could provide, especially the subject of his investigation, Clinton. Comey must have been determined to absolve Clinton regardless of what she or others had to say under FBI questioning.

  Fred Tecce, who was an assistant U.S. attorney in Philadelphia and, later, special assistant U.S. attorney at the Department of Justice, believes Comey threw the case to protect Clinton:

  The Investigation was a sham, a farce. They wrote the press release announcing the results of the investigation before the investigation fully took place. The fact that they even bothered to interview her was a joke. Clinton could have told them “yeah, I stole everything, the computer was illegal, I knew what I was doing was wrong” and they would have said, “thank you very much madam secretary, have a nice day,” and then they would have issued the press release they had written weeks before announcing that there wasn’t enough evidence to prosecute. It was a joke.37

  All the former federal prosecutors and former top officials at the FBI who were interviewed for this book said they had never seen such a practice. They described it as wrong and in violation of FBI standards. The Senate Judiciary Committee accused Comey of predetermining the outcome of the case against Clinton:

  . . . Mr. Comey had already decided he would issue a statement exonerating Secretary Clinton. That was long before FBI agents finished their work. Mr. Comey even circulated an early draft statement to select members of senior FBI leadership. The outcome of an investigation should not be prejudged while FBI agents are still hard at work trying to gather facts.

  Conclusion first, fact-gathering second—that’s no way to run an investigation. The FBI should be held to a higher standard than that, especially in a matter of such great public interest and controversy.38

  Why would Comey change the crucial language to clear Clinton in the face of incriminating evidence that she mishandled classified material by both intentional acts and through grossly negligent behavior? Did Comey absolve Clinton for political reasons? Was he pressured to do so by Attorney General Loretta Lynch or others at the Justice Department? Did top officials at the FBI, motivated by corrupt purposes, dissuade him from making the criminal referral which his original draft statement so plainly set forth? And why exactly did he take it upon himself to usurp the authority of the Justice Department in clearing Clinton?

  If Comey prevented the prosecution of Clinton in the face of sufficient and compelling evidence to indict her or was complicit in doing so, as the evidence indicates, then such interference or intervention in the due administration of justice would rise to the level of obstruction of justice by Comey.

  18 U.S.C. 1505 makes it a crime to obstruct justice:

  Whoever corruptly . . . influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States . . . shall be fined under this title, imprisoned not more than 5 years, or both.39

  The operative word in the statute is “corruptly.” What does it mean? Courts have struggled with its meaning over the years, which is why Congress decided to define it in 18 U.S.C. 1515(b) as “acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information.”40

  Thus, clearing Clinton for a personal or political reason could easily amount to a “corrupt” or improper purpose constituting obstruction of justice. So, too, would the act of altering an exoneration statement with a false finding of “extremely careless” if the facts determined that Clinton’s actions were “grossly negligent.”

  Comey was asked, under oath, by the House Judiciary Committee if he decided not to pursue criminal charges against Clinton before or after she was interviewed by the FBI. He testified “after.”41 However, the documents uncovered by the Senate Judiciary Committee belie his testimony. A full two months before the FBI ever interviewed Clinton and her top aides, Comey began drafting the statement that he used to exonerate Clinton. Absent some extraordinary explanation, it appears that Comey’s investigation was little more than a charade and that he may have lied under oath. If true, it would constitute the crime of perjury under 18 U.S.C. 1621 or a false statement under 18 U.S.C. 1001.42

  This document establishes persuasive evidence that Comey preordained that Clinton would not be charged. What prosecutor writes a statement absolving a suspect before the evidence is fully gathered, especially from the principal witnesses? No prosecutor of which I am aware. Unless, of course, the fix was in. Unless someone instructed or encouraged him to protect Clinton or he decided to do it all on his own with a presidential election hanging in the balance.

  Either way, it is evidence of obstruction of justice. It is a felony to interfere with a criminal investigation, even if you are in charge of it. It is also illegal to use your public office for a political purpose, if that is what Comey did.

  Former FBI assistant director Bill Gavin, who spent twenty-eight years with the bureau, said he had never heard of anyone in the FBI, including the director, composing an exoneration statement prior to the conclusion of an investigation. He referred to it as “unprecedented and wrong.”43 Former assistant deputy director Buck Revell agreed, calling it inconsistent with the duties and responsibilities of the FBI:

  That is totally outside the scope of any reasonable course of action. It never happened to my knowledge, and I ran operations for ten years. I know what happened back t
hen. It would have been something that caused me to go to the Congress and say that we’ve got a conflict of interest in our own organization.44

  The questions then become two-fold: Did Comey do this on his own? Did others exert pressure or unduly influence him to exculpate Clinton? Facts later emerged suggesting that the investigation was corrupted by several people from within the FBI and the Justice Department.

  Loretta Lynch and a Series of Fantastic Coincidences

  We are expected to believe it was a coincidence that former President Bill Clinton just happened to be on the tarmac of Sky Harbor International Airport in Phoenix, Arizona, at exactly the same time as Attorney General Loretta Lynch on June 27, 2016, a scant five days before Hillary Clinton was to meet with FBI officials for questioning about her suspected wrongdoing. Perhaps it was also just a coincidence that eight days after the furtive tarmac meeting the decision was announced that criminal charges against Clinton would not be filed.

  We are supposed to accept that the private meeting on board Lynch’s plane had nothing whatsoever to do with the criminal investigation of Clinton that the AG was overseeing at the time and that it was a “primarily social” interaction. The optics, if not the substance, were beyond improper by any legal and ethical standard: the husband of the subject of a criminal investigation was meeting with the one person who could decide whether charges would be brought against his wife.

  Had a local reporter not been tipped off about the rendezvous, no one would have ever known about their discussion that reportedly lasted for half an hour.45 The secret meeting would have remained a secret and, in all likelihood, Lynch would not have felt compelled to accept whatever recommendation was made by Comey.

  Lynch should never have presided over the Clinton email case to begin with. She owed her career to none other than Bill Clinton, who nominated her to serve as U.S. Attorney for the Eastern District of New York, which nicely positioned her for elevation to attorney general a few years later. She should have recused herself from the Clinton probe at the outset, but never did so. Even when the ethically challenged tarmac meeting took place, she refused to recuse herself, saying she would accept the recommendations of the FBI.46