- - Wednesday, September 14, 2016

ANALYSIS/OPINION:

The notion that FBI Director James Comey took a fall to protect Hillary Clinton for political reasons is now gaining as much traction as the claim that President Obama was not born in the United States.

But as with the Obama conspiracy theory, a few simple facts undercut the claim that Mr. Comey acted improperly by not moving to indict Mrs. Clinton.

In the case of the Obama conspiracy theory, the Honolulu Advertiser ran an announcement of his birth in Hawaii at the time. Unless you believe that Obama’s parents knew in advance that he would be president of the United States and conspired to place the announcement in the Hawaii paper to legitimize his election, the announcement should have ended any claim that Mr. Obama was not born in the U.S.

Likewise in the case of the FBI’s decision not to indict Mrs. Clinton, if you believe that Mr. Comey succumbed to pressure from President Obama to let her off, you would have to ignore the fact that Mr. Comey damaged her election chances far more than if he had moved to indict her by taking the unprecedented step of releasing the details uncovered by the FBI investigation.

Calling her actions in handling classified material “extremely careless” and refuting her yearlong litany of excuses and dissembling are hardly the actions of someone who is trying to cover up for her. To the contrary, had Hillary been indicted, a trial would not have taken place for at least a year. The electorate meanwhile would have been in the dark about the damaging details of how shockingly she violated the public trust.



Jim Kallstrom, who did groundbreaking work as an FBI agent, has been on TV saying that the FBI should have recorded its interview of Hillary, that she should have been placed under oath so she could have been prosecuted for perjury if she had lied, and that she should have been given a polygraph test. But the FBI never records interviews unless a subject has been arrested and is in custody. Lying to the FBI in itself is a federal crime and thus a more direct way of dealing with perjury. And the FBI has no authority to require a polygraph test.

The fact that Mr. Comey released damaging documents from the investigation just before the Labor Day weekend has more to do with the fact that human beings typically try to finish their work before a weekend if they possibly can. Nor have the documents exactly gone unnoticed by the media.

Mr. Comey had no obligation to release the material in the first place, or, for that matter, to authorize the investigation and assign 12 agents to work on it full-time for a year.

A Wall Street Journal editorial began by claiming that, “Regular FBI practice is to get a subject on the record early then see if his story meshes with what agents find. In this case they accepted Mrs. Clinton’s I-don’t-recall defenses after the fact.”

Not true. Whether the FBI conducts an interview near the beginning or end of an investigation is a judgment call based on the case. In a complex investigation of this kind, where the subject likely would not consent to be interviewed unless she thought the FBI had already gathered extensive damaging evidence, it is more likely that the FBI would conduct an interview when all the facts had been amassed.

The Wall Street Journal editorial went on to nitpick information in the FBI’s 58-page summary of the interview. It said the agents never grilled Mrs. Clinton on her intent in setting up the server. But a memo cannot possibly encompass all the information gathered during a yearlong investigation, nor all the questions that were or were not asked in a three-and-a-half hour interview. On the question of intent, no matter how many times agents may have asked her, Mrs. Clinton was not about to admit that she had knowingly violated criminal law by storing classified information on her server.

Since Section 793(f) of the U.S. criminal code makes it a crime to treat information relating to the national defense with “gross negligence,” you would think that Hillary would have been indicted long ago. But actually convincing a jury that Mrs. Clinton should be found guilty of a crime is another matter.

Besides the absence of provable criminal intent, Mr. Comey had to consider the fact that some jurors could give Mrs. Clinton a pass simply because she is a presidential candidate. 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?

For 25 years, John L. Martin was the Justice Department official in charge of prosecuting the espionage laws, including the statute in question. He never used that law without evidence of criminal intent, such as lying to the FBI.

“Comey did the right thing,” Mr. Martin tells me. “He put the facts out to let the people decide.”

Ronald Kessler, a former Washington Post and Wall Street Journal investigative reporter, is the author of “The Secrets of the FBI” (Crown Forum, 2012), and “The First Family Detail: Secret Service Agents Reveal the Hidden Lives of the Presidents” (Crown Forum, 2015).

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