Gen. Petraeus’s case included messages showing he knew that the information was being mishandled, and initial misrepresentations to the FBI, although neither is required under the misdemeanor statute. And although the FBI may not have been involved, there are indeed reported felony prosecutions of soldiers for putting copies of classified documents in a gym bag and then not returning them out of fear of discovery; placing classified documents in a friend’s desk drawer and forgetting them; tossing documents meant to be destroyed in a dumpster rather than in the appropriate facility.
The FBI director said the investigation of Mrs. Clinton was a case for “unusual transparency,” and the transparency in Tuesday’s exercise was certainly unusual. Mr. Comey’s disclosure of his recommendation outside the context of any discussion with Justice Department lawyers was anomalous. What is supposed to happen in a matter like this is, as the director mentioned, a “prosecutive” decision—i.e., a decision made by prosecutors. It is not an investigative decision. Investigators are supposed principally to gather facts.
Mr. Comey didn’t explain why, with evidence clearly fulfilling the requirements of the two statutes involved, no reasonable prosecutor would bring a case—except for the director’s inaccurate assertion that it had never been done before.
And finally, although there was transparency about process, there was no discussion of underlying facts, only conclusions.
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