Say this for the guy: He may be misapplying federal statutes but he’s misapplying them consistently, at least as far as Team Clinton goes. Ed noted earlier that Comey revealed this morning that Huma was forwarding emails to Weiner to print out for Hillary’s perusal. Did Huma realize that was illegal? Nope, says Comey, and that was the key. Somehow the thought didn’t occur to Hillary’s top aide that transmitting sensitive correspondence involving the world’s most powerful diplomat to unauthorized recipients might tickle the boundaries of what federal law permits.
Is Comey right, though, that there’s no crime here so long as Abedin didn’t intend to mishandle classified information? Nope. The statute is clear:
(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—
Shall be fined under this title or imprisoned not more than ten years, or both.
Sending classified info to the private laptop of someone who isn’t authorized to receive it because you can’t be bothered to print it out yourself does sound suspiciously like gross negligence, especially given Weiner’s other computer pastimes and the opportunities they created for foreign blackmail. (Weiner’s participation here makes the negligence “gross” in every sense of the word.) But then, so does setting up your own private “homebrew” email server to conduct official state business. Comey decided last summer that it doesn’t matter what the federal statute actually says; Congress can write whatever laws it wants but when it comes to applying them, prior DOJ practice will guide the FBI in recommending charges, not the text of the law. And DOJ practice requires proof of knowledge or intent, not mere gross negligence, to justify filing charges, never mind that no one as high up as a Secretary of State had ever been credibly accused of violating this particular statute before. If Hillary’s gross negligence wasn’t enough to get her charged, then Huma’s gross negligence isn’t enough either.
Lucky for them they’re not members of the military, though, notes David French. That’s where the “consistency” here would surely break down:
As I’ve written before, I served in the military, handled classified information, and helped investigate possible violations of laws and regulations governing classified documents. Here’s what I know beyond a shadow of a doubt — if a soldier had sent classified documents to his wife “to print out” his best legal outcome would be a one-way ticket to a dishonorable discharge. His worst outcome would be jail.
Let’s not forget, Hillary and her entire team (including Abedin) were bound by law to protect both marked and unmarked classified information. Moreover, Hillary and her entire team were hardly neophytes. They’d been exposed to classified information for years. They knew exactly the types and categories of information that were typically classified, and they knew how they should handle that information. But Abedin forwarded emails for printing anyway. But Hillary stored messages on her homebrew server anyway. No wonder Hillary lied so loudly and frequently about her emails. The truth was too devastating (and incriminating) to tell.
Much has been written, including by me, reminding Democrats that there never would have been a Comey letter last October if not for Clinton’s own bad email practices and her husband’s idiotic decision to drop in on Loretta Lynch on the tarmac last year. But here’s another hard truth, less often noted: If Comey had simply followed the law and charged Clinton for gross negligence last July, Democrats might well have won the election. Hillary would have either dropped out or been forced out and replaced by Joe Biden or Bernie Sanders, both of whom would have fared better with working-class whites than Clinton did. Comey may have screwed them last fall with his last-minute letter but he definitely screwed them last summer by giving Hillary what Trump described this morning, not incorrectly, as a “free pass.”