Fresh off the rumors that special counsel Robert Mueller could soon be submitting his final report on the investigation into whether the Trump campaign colluded with Russia during the 2016 election, The Hill has a story related to the other scandal that consumed so much of the news cycle back then, but was quickly buried by the media just as soon as they could get away with it.
It was right around the 4th of July that year, when then FBI Director James Comey held a press conference during which he declared that the Bureau would not be recommending charges against Hillary Clinton, the Democrat nominee for president, for her mishandling of classified material while she worked as Barack Obama’s Secretary of State. As it turns out, however, not everyone at the FBI shared Comey’s view that Clinton’s actions, while careless, did not rise to the level of criminal intent:
For most of the past three years, the FBI has tried to portray its top leadership as united behind ex-Director James Comey’s decision not to pursue criminal charges against Hillary Clinton for transmitting classified information over her insecure, private email server.
Although in the end that may have been the case, we now are learning that Comey’s top lawyer, then-FBI General Counsel James Baker, initially believed Clinton deserved to face criminal charges, but was talked out of it “pretty late in the process.”
The revelation is contained in testimony Baker gave to House investigators last year.
For those of us who watched that press conference, during which Comey seemingly laid out the case that Clinton had in fact violated the law by transmitting highly-classified documents over an email server that had likely been hacked by hostile foreign actors—a server, by the way, that she had set up for the express purpose of dodging public records laws—the decision to all but absolve her of responsibility was an outrage. And based on Baker’s testimony, we weren’t the only ones who thought so.
During questioning by Rep. John Ratcliffe (R-Texas), Baker was unequivocal about his early view that Clinton should face criminal charges.
“I have reason to believe that you originally believed it was appropriate to charge Hillary Clinton with regard to violations of law — various laws, with regard to mishandling of classified information. Is that accurate?” Ratcliffe, a former federal prosecutor, asked Baker.
Baker paused to gain his lawyer’s permission to respond, and then answered, “Yes.”
So what ultimately caused Baker to change his mind?
“So, I had that belief initially after reviewing, you know, a large binder of her emails that had classified information in them,” he said. “And I discussed it internally with a number of different folks, and eventually became persuaded that charging her was not appropriate because we could not establish beyond a reasonable doubt that — we, the government, could not establish beyond a reasonable doubt that — she had the intent necessary to violate (the law).”
Which, by the way, is the same reason that Comey gave at his press conference. The only problem? It’s complete bollocks. As National Review’s Andy McCarthy has noted, the relevant provision of the law does not require criminal intent to establish guilt—merely a reckless disregard for the proper procedure in handling classified material:
Hillary Clinton checked every box required for a felony violation of Section 793(f) of the federal penal code (Title 18): With lawful access to highly classified information she acted with gross negligence in removing and causing it to be removed it from its proper place of custody, and she transmitted it and caused it to be transmitted to others not authorized to have it, in patent violation of her trust. Director Comey even conceded that former Secretary Clinton was “extremely careless” and strongly suggested that her recklessness very likely led to communications (her own and those she corresponded with) being intercepted by foreign intelligence services.
In essence, in order to give Mrs. Clinton a pass, the FBI rewrote the statute, inserting an intent element that Congress did not require.
In other words, James Comey convinced James Baker that Clinton shouldn’t be charged by interpreting a statute in a way that both of them knew damn well was incorrect. Maybe I’m just being cynical here, but that sure looks to me as if the FBI was bending over backwards to let Hillary off the hook.
It only gets worse when you consider the other unusual ways in which the Bureau conducted this particular investigation. Practically every witness was given blanket immunity. Witnesses were also questioned in the presence of other witnesses—and, in the case of Cheryl Mills, were simultaneously allowed to function as an attorney during these interviews. Clinton had all of the data wiped from her server before FBI forensic specialists could examine it—which amounts to destruction of evidence in a criminal investigation, itself a blatant violation of the law—and yet was never charged for that offense, either.
Finally, there’s the matter of Comey himself getting the final say over whether Clinton would be referred for charges. That has never been the FBI’s job. The Bureau merely investigates crimes, gathering evidence and presenting it to the Department of Justice. It should have ultimately been the decision of the Attorney General—but given Loretta Lynch’s close political ties to the Obama administration, and that Clinton’s innocence had already been predetermined, handing the whole thing to Comey was supposed to give this corrupt enterprise the imprimatur of legitimacy.
My, how appearances have changed.
At any rate, when you compare how the federal law enforcement and intelligence establishment has treated every wild accusation against Donald Trump and his supposed collusion with Russia with grave credulity, all while assiduously looking the other way when it comes to Hillary’s flouting of the law, it’s easy to believe that there’s a Deep State—and that its hand is at work here.