April 25th, 2024


The FBI should release the memo

Marc A. Thiessen

By Marc A. Thiessen The Washington Post

Published July 8, 2016

In his news briefing, FBI Director James Comey said he was going to provide more detail about Hillary Clinton's "extremely careless . . . handling of very sensitive, highly classified information" than he normally would "because I think the American people deserve those details in a case of intense public interest."

He's right. But his 2,314-word statement is woefully inadequate. The FBI has amassed a huge amount of evidence on Clinton's reckless conduct - evidence that it has presented to the Justice Department in a detailed "decline to prosecute" memorandum. This memo, and supporting documentation, should be publicly released (with redactions to protect the classified information Clinton so dangerously exposed in her emails). While the evidence against Clinton may never be submitted in a court of law, it must be submitted to the court of public opinion so that Americans can judge whether Clinton's behavior disqualifies her from holding the highest office in the land.

Based on the information Comey did make public, we now know beyond a shadow of a doubt that Clinton repeatedly lied to the American people about her emails. For example, in March 2015, Clinton held a news conference in which she assured Americans, "I did not email any classified material to anyone on my email. There is no classified material." That statement, Comey says, was flatly untrue. "Seven email chains concern matters that were classified at the Top Secret/Special Access Program level when they were sent and received," Comey said in his briefing, adding, "These chains involved Secretary Clinton both sending emails about those matters and receiving emails from others about the same matters." He added that the FBI also found emails that were "properly classified as Secret by the U.S. Intelligence Community."

Clinton also lied when she changed her story and declared that "I did not send nor receive anything that was classified at the time" (emphasis added). That is also false, according to Comey: "110 emails in 52 email chains have been determined by the owning agency to contain classified information at the time they were sent or received," he declared (emphasis added). "Eight of those chains contained information that was Top Secret at the time they were sent; 36 chains contained Secret information at the time; and eight contained Confidential information."

Clinton also lied when she said that "this process will prove that I never sent nor received any email that was marked classified" (emphasis added). Her emails did include some that "bore markings indicating the presence of classified information," Comey said. But he added that whether they included such markings was irrelevant. "Even if information is not marked 'classified' in an email, participants who know or should know that the subject matter is classified are still obligated to protect it," he said.

Clinton also lied when she definitively assured the American people that "there were no security breaches" of her private server. She had no way to know that, Comey explained. "Given the nature of the system and of the actors potentially involved, we assess that we would be unlikely to see . . . direct evidence" of security breaches, Comey said. But the FBI did conclude "that hostile actors gained access to the private commercial email accounts of people with whom Secretary Clinton was in regular contact from her personal account." The FBI also concluded that Clinton "used her personal email extensively while outside the United States, including sending and receiving work-related emails in the territory of sophisticated adversaries." And the "emails were housed on unclassified personal servers not even supported by full-time security staff, like those found at departments and agencies of the U.S. government - or even with a commercial service like Gmail." Therefore, Comey said, "we assess it is possible that hostile actors gained access to Secretary Clinton's personal email account."

The reason all this did not result in criminal charges, Comey said, was that the FBI "did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information" (emphasis added). As many legal scholars have pointed out, the statute in question does not require intent, simply evidence of "gross negligence." Comey provided that in spades. "None of these emails should have been on any kind of unclassified system," Comey said, adding that "any reasonable person in Secretary Clinton's position . . . should have known that an unclassified system was no place for that conversation."

While he declined to recommend prosecution, Comey did say that "in similar circumstances, a person who engaged in this activity" would "often" be "subject to security or administrative sanctions." Such sanctions usually include the suspension of that individual's access to classified information.

Indeed, the Daily Caller reports that in 2015, a Navy reservist was found by the FBI to have stored classified materials "on his personal, unclassified electronic devices and storage media" during a deployment to Afghanistan. He was prosecuted and sentenced to two years of probation and a $7,500 fine and "ordered to surrender any currently held security clearance and to never again seek such a clearance." Apparently, the rules that apply to Navy reservists don't apply to Clinton.

Based on Comey's conclusions, it's hard to see how Clinton should ever be allowed to hold a security clearance again. Indeed, House Speaker Paul Ryan, R-Wisconsin, has called on the director of national intelligence to block Clinton's access to classified information while she is a presidential candidate.

While Clinton's actions may not land her in the jailhouse, they should disqualify her for the White House. That decision rests not with the FBI but the American people - which is why the FBI must give them the evidence they need to decide.

Release the memo!

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