Yesterday, FBI Director James Comey declared that “no reasonable prosecutor” would pursue a criminal case against Hillary Clinton for mishandling classified information under 18 USC 793. The FBI investigation found “evidence of potential violations,” but Comey suggested that a lack of “intent” would hamper a successful prosecution — even though 793(f) specifically makes “gross negligence” the bar for a felony prosecution. Absent “intentional or willful” mishandling, “vast quantities” of materials, or “efforts to obstruct justice,” Comey insists, no prosecutor would take the case.
That’s news to Derrick Hogan. Hogan represents Kristian Saucier, a Navy sailor being prosecuted for violations under 18 USC 793. I spoke with Hogan yesterday after Comey’s announcement for my column at The Week, and Hogan challenged Comey’s assertion of a lack of prosecutorial willpower in these cases. There was no functional difference between what Hillary did and what the Department of Justice prosecuted his client for doing, Hogan told me:
Consider the extant case of Kristian Saucier, a sailor who unwisely decided to use his cellphone to take a few photographic mementos of his tour of duty on board a submarine. The photographs allegedly include classified systems within the ship. Saucier is not accused of transmitting the photographs, unsecurely or otherwise. Saucier’s case didn’t involve “vast quantities of materials,” exposed or not. Nevertheless, Saucier has been charged under 18 USC 793 (e), and has accepted responsibility for those violations in an agreement with prosecutors.
Saucier did attempt to render his storage of the photographs unusable and inaccessible after suspicion arose. However, there seems to be little difference between Saucier’s attempts and the efforts by Clinton’s team to “wipe” her server rather than submit it to the State Department when requested — actually, a number of servers, as Comey pointed out. If Saucier’s actions amount to obstructing justice, then shouldn’t Clinton’s?
“Clearly, a double standard [exists],” Saucier’s attorney Derrick Hogan told me hours after Comey’s statement. “To me, there’s really nothing that Mrs. Clinton did that was any different than what Mr. Saucier did.” Saucier currently faces 63 to 78 months in prison for the 793(e) violations.
It’s worth noting, too, that Saucier is still an active-duty sailor. The Department of Defense could have handled this case within its own chain of command, especially since Saucier has taken responsibility for the violations. Instead, the DoJ has pursued this case — a rather remarkable rebuttal to Comey’s inexplicable surrender.
It’s not the only case, either. Bryan Nishamura, a Navy reservist, got convicted of mishandling classified information that he downloaded to his own devices and retained. Despite never having attempted to transmit them, the DoJ got its conviction on a misdemeanor count, resulting in a fine and probation for Nishamura.
Rudy Giuliani continued his criticism of Comey this morning on Fox & Friends by saying he can recall at least eight prosecutions under 18 USC 793 off the top of his head:
"As Jim Comey's boss for two or three years, I was very disappointed in him." -Rudy Giulianihttps://t.co/17HBfm7fq0
— FOX & friends (@foxandfriends) July 6, 2016
The lesson of this decision is clear, I conclude in my column — some folks are just more equal than others:
Nishimura now has a criminal record and cannot get access to classified material for the rest of his life. Saucier faces several years in prison for his personal photographs. Clinton, for her attempts to bypass the Federal Records Act, FOIA actions, and Congressional oversight, faces the real possibility of holding the highest and most powerful elective office in the world.
The only conclusion to draw from this dichotomy is that some Americans are just too big to indict.
Or too big to fail … and to jail.