- - Monday, July 11, 2016

A wide swath of Americans is outraged at FBI Director James Comey’s decision not to prosecute Hillary Clinton for what seems an obvious violation of criminal law.

After all, Section 793(f) of the U.S. criminal code could not be clearer: The law makes it a felony punishable with a prison term of up to 10 years to treat information relating to the national defense with “gross negligence.”

It would be difficult to imagine a circumstance that more clearly violates this statute than storing classified information on a private, unsecured server. While Mrs. Clinton has repeatedly maintained that the material stored on her server was not stamped classified, under the law, that is irrelevant. If she had communicated the information orally, she would still be violating the law.

Beyond saying that no “reasonable prosecutor” would charge the presidential candidate and that her intent to violate the law had not been established, Mr. Comey has offered no understandable explanation for his decision. In his statement at FBI headquarters and in his congressional testimony, Mr. Comey clearly chose not to go into the thinking behind his decision to exercise prosecutive discretion and how he approached what any prosecutor grapples with: Will a jury convict?

For 25 years, John L. Martin was the Justice Department official in charge of prosecuting the espionage laws, including the statute in question. When Mr. Martin took over the Justice Department’s Internal Security Section, no spies had been successfully prosecuted in a federal court for 10 years.



That was not because there were no spies. It was because agencies like the CIA and the National Security Agency had convinced the Justice Department that prosecuting spies would disclose too many secrets. In fact, Mr. Martin would say, these agencies wanted to conceal their embarrassment over their own security lapses. Powerful as they were, Mr. Martin had the intellect and courage to take on all the agencies.

By the time he retired in August 1997, Mr. Martin had supervised the prosecution of 76 spies, from John A. Walker Jr. to Aldrich Ames to Jonathan Pollard. Only one of the prosecutions resulted in an acquittal.

During his tenure, Mr. Martin never used Section 793(f). Instead, when cases involved only mishandling of classified material, he would defer a prosecutive decision and send the case back to the employee’s agency to take administrative action, such as lifting a security clearance or firing the employee.

The reason Mr. Martin felt he could not invoke Section 793(f) alone is that as a prosecutor, he had to weigh whether a jury would find a defendant guilty of a criminal violation without a showing of criminal intent, regardless of the fact that that law does not specifically require it.

In Mrs. Clinton’s case, the question was: Would a court accept a case and jurors convict if the government could not show that she knowingly mishandled specific classified items with criminal intent, as would be clear, for example, if she had lied to the FBI and attempted to cover up what she had done?

For that reason, in charging a defendant with mishandling classified information, the Justice Department has historically combined the charge with additional violations that would insure a conviction. Thus, former CIA Director David Petraeus agreed to a plea disposition after not only giving classified information to his biographer and lover but lying about it to FBI agents.

Besides the absence of criminal intent, Mr. Comey had to consider the fact that many jurors could give Mrs. Clinton a pass simply because she is a presidential candidate. And did Mr. Comey want the FBI to be responsible for throwing the presidential election process into chaos if, in the end, the prosecution resulted in a dismissal by the court, a hung jury or an acquittal?

This may sound like a double standard, but it’s a reality. The issue is much like a journalist’s approach to breaking a big story. Does he go with one source who may turn out to be unreliable or does he insist on another source and more corroboration before signing off on a story that could backfire and besmirch his reputation?

Mr. Comey likely did not want to reveal the thinking that went into his decision because it would expose the fact that a determination to prosecute by its nature is a matter of judgment. But Mr. Martin calls Mr. Comey’s decision and handling of the case brilliant and courageous.

“Taking on an unwinnable case which cannot be proven beyond a reasonable doubt against a high-profile defendant makes you look like you are not motivated by examining the facts and the law,” Mr. Martin tells me. “You lose credibility with the courts, Congress and the public. It undercuts the entire government and the way it treats its citizens.”

Mr. Comey’s detailed recitation of what he called her “extremely careless” handling of classified material as secretary of State will resonate throughout Hillary Clinton’s campaign. But in deciding not to take a chance on prosecuting her, the FBI director vindicated all those who believed from the outset in his integrity.

Ronald Kessler, a former Washington Post and Wall Street Journal investigative reporter, is the author of “The Secrets of the FBI” (Crown Forum, 2012).

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