What is Comey Doing?

James Comey’s decision to reopen the investigation against Sec. Hillary Clinton has caused an immense amount of conjecture.  His initial, rather confusing, statements about Sec. Clinton after the first investigation that she had been wreckless, dishonest, and at the very least violated policy related to the handling of classified documents ended with a recommendation that she not be indicted.   Attorney General Loretta Lynch was undoubtedly all too happy to receive the news, but Comey’s comments hinged on what he said was a lack of clear evidence of intention that could make a legal case against her.  As many pointed out, intent is not vital when it comes to breaking the law.  Critics suggested that Comey’s actions could be explained by two possibilities:  1) he simply did not have the evidence he needed to convict her or 2) he succumbed to pressure from leadership within the executive branch to not pursue the case against Sec. Clinton.  Fast forward four months and once again, Comey has made headlines again.  He notified Congress that he was reopening the investigation after more emails had been found in an unrelated investigation.  The investigation involved estranged husband of Sec. Clinton’s top aid, Huma Abedin.  Abedin’s husband, Anthony Weiner, is under investigation for sending inappropriate texts to underage girls.  The revelations seem now to have estranged Clinton and Abedin as well.  But that is not at issue here.  The question now is what is Comey doing and why?

If we accept the options for Comey’s original decision not to pursue indictment, how do we assess his decision to reopen the investigation?  If Comey refused to recommend indictment originally because of lack of evidence, it would appear that he now thinks there is additional evidence of import.  If Comey refused to recommend indictment originally because he was a mere sycophant, then it would appear that the evidence he is now looking at must be very compelling to override the political pressure he has been facing.  Either way, it seems reasonable that he must have good reason for reopening the investigation.  Americans ought to take notice.  I am sure there are other arguments to be made here.  Some might say Comey simply wants to leave his mark on American history, but the reality is he has already done that from his original decision.  It seems unlikely he is doing this to simply add to that legacy.  We are indeed in a strange situation to have a candidate with the specter of an unfinished investigation and possible indictment hanging over her head.  The allegations swirling around are disconcerting. The email scandal is just the tip of the iceberg.  The prospect that donors, particularly representatives of foreign governments, could gain access to State Department personnel and even the Secretary of State herself because of donations to the Clinton Foundation is cause for serious concern.  Honestly, I am as bothered by the fact that the Federalist reported that only fifteen cents of every dollar donated to the Clinton Foundation actually goes to the causes it allegedly supports.  Most average Americans would find it hard to donate to such a “charity,” suggesting Clinton is not as in touch with the common American as she claims.  I am further struck by the irony of Sec. Clinton’s past service as a lawyer investigating the Nixon scandals while now finding herself the subject of such investigations.  One would think that investigating Watergate would leave an indelible mark regarding the need for ethical behavior.

It was not that many years ago that another Clinton was running for president amid speculation and allegations about inappropriate behavior.  The American electorate largely ignored those allegations and elected him anyway.  The country later learned that many of those allegations were true and lived through the national embarrassment of an impeachment investigation and trial.  Have we learned anything?

16 thoughts on “What is Comey Doing?”

  1. Dr. Mach – Just to clarify: in the law, crimes require both an “actus reus” (physical action taken) and a “mens rea” (mental state). Different crimes require different mental states. So, yes, intent is quite important when it comes to breaking certain laws and committing certain crimes. One cannot, for instance, be charged with M1 (first degree murder) without the requisite mental state (in that case, a premeditated intent to murder).

    1. Aren’t there some crimes that a person can get charged with regardless of intent because of the risk factor? If the person who “made the accident” knew that there was a good chance that “disaster” would happen, then isn’t the accident is still a kind crime because any rational person would know it was a risky idea? Like if drunk driver went out on the road and caused deaths in an accident. They’re still charged with the crime of murder right? Or is that something different?

    2. Classified information is different. Military and government personnel face prosecution all the time for mishandling such information, most times unintentionally. Intention plays far less if a role in these cases. The term I believe is “criminal negligence”.

      1. Actually that’s not quite true. If a military person committed a similar crime they must likely would have an administrative punishment not a criminal punishment.

      2. But military personnel DO sometimes get prosecuted, and for less that what Clinton did. So, actually, it is true.

        Brings up a question though… How would you recommend “administratively punishing” the President of the United States? Such punishments usually result in revocation of security clearances for classified data. Since it is impossible to be President without access to ALL of the classified data in the United States, where would that leave us?

      3. Yes, there are some crimes that only require “recklessness” or “negligence.” However, that isn’t the case with this crime. Given the way the public has responded, it sounds like Congress should consider amending the appropriate laws.

        Crimes work in the following: Prove the requisite actions taken (“actus reus” / stealing, murder) and the requisite mental state (“mens rea” / intentional, premeditated, negligent, etc). In this case, the FBI could not prove the requisite mental state (intentional) even the conduct was present. You need both.

        Nathan, can you please point to the statute with which you would prosecute Clinton under where she would satisfy the elements of the crime with mere “negligence” or “recklessness”?

        This isn’t really a partisan issue; either she committed the crime (both conduct and mental state) or she did not. And if there isn’t even enough evidence to charge her then it seems very unlikely that she committed the crime in question.

      4. Actually, most of the statutes mentioned in that article still require “willful” or “intentional” behavior. The FBI has been pretty clear that they don’t have the evidence to prove an “intentional” mens rea.

        18 USC 798 – willful, intentional
        18 USC 1031 – knowingly
        18 USC 371 – conspires/conspiracy (implies intent
        18 USC 1924 – knowingly
        18 USC 2071 – willfully
        18 USC 641 – steals, etc (implies intent)
        18 USC 343 – devised, intended
        18 USC 505 – intent
        18 USC 1519 – knowingly
        18 USC 793 – “with the purpose” (purposeful intent)

        You are entitled to your opinion, Nathan, but you are wrong. If there is no evidence of intentional wrongdoing, then law enforcement cannot bring a case for an intentional crime.

        And, apparently, the emails discovered in the Anthony Weiner matter did not affect their analysis whatsoever regarding Clinton.

        http://www.npr.org/sections/thetwo-way/2016/11/06/500929164/comey-we-have-not-changed-our-conclusions-as-fbi-finishes-clinton-email-review

      5. If you want to know what I truly think, I believe the FBI chose not to prosecute because in order to do so they would need the okay from the Justice Department, something I don’t think they were ever going to get. Because the FBI publicly says “there was no intent” as justification for no prosecution does not mean nothing prosecutor occurred. From what I hear, there are plenty in the FBI who are furious that this conclusion was made.

        A further question: You said “Actually, most of the statutes…”. You did not say “all of the statutes”. So apparently you think there is at least one that left open the possibility?

      6. Nathan, to be fair, most of the statutes from the article you cited that I went through are barely applicable (even if she possessed the requisite mental state). However, I believe I reviewed each of the statutes, and they each require a variation of intentional or willful conduct, neither of which she possessed.

        (the one I didn’t include is a mere statutory definition; it isn’t a “law” someone could break)

        I think you’re theory regarding the DOJ is interesting, but that’s all it really is: a speculative, conspiratorial theory. It’s fueled by gut instinct, and contradicted by both a major federal law enforcement agency and a pile of statutes that require a mental state she wasn’t found to possess. When you begin to ignore that much evidentiary weight, you reveal a conspiratorial mind that ultimately can’t be persuaded by evidence.

        One thing that’s often forgotten: Trey Gowdy – a highly touted and well-respected GOP lawmaker – led several congressional investigations into Secretary Clinton’s scandals, and not once did he return with a charge of any kind. Again, if there was something here, either he or Comey would have been more than happy to bring a lawful charge. They haven’t.

    1. From 2009-2012, of the $500 million taken in by the Clinton Foundation, $75 million went to direct aid. That is 15% (or fifteen cents on the dollar) of donations.

      I have not studied the Clinton Foundation’s finances in any great detail, but this seems to be where the “headline” comes from. Charities can provide support other than monies sent to direct aid, so it would, in fact, be “factually incorrect” that only 15% goes to causes the Foundation supports. But it does lead to questions about where all the other money (75%) NOT going to direct aid ends up.

      So it’s perfectly understandable why the “15%” belief is circulating. Maybe persons looking to correct others could take that into account and actually make an attempt to do so respectfully and constructively rather than being priggish about it, no?

      1. 15% went to grants. The Clinton foundation primarily does good things not grants. Look at charity navigator for some more details. They’re not perfect but the Clinton foundation is a heck of a lot better than 15%

  2. If the second reason (authority leaning on Comey) was the reason that the trial was never initiated then it may be unlikely that it will bear fruit now… especially if the member under scrutiny is President of the U.S… just saying?

  3. I think that the decision to reopen the case is quite interesting. Perhaps it was personal preference, maybe it was pressure from the opposing party, but if we look at both Clinton’s history, we see that they have a remarkable ability to sweep things under the rug, given enough time. Perhaps Comey knew that a recommendation for indictment when he released his first statement would have been fruitless and would’ve been another passing fad. However, if he saved that recommendation until just prior to election day, then the Clinton campaign wouldn’t have enough time to clean up the mess. It’s a bit of a conspiracy theory, but it’s just one possibility, and in today’s political culture, it really doesn’t seem too far fetched.

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