No, Director Comey Did Not "Rig" The Clinton Investigation

No, Director Comey Did Not "Rig" The Clinton Investigation
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The revelation that as early as May 2016 former FBI Director James Comey began formulating public remarks that would ultimately express the FBI’s decision not to recommend prosecution of former Secretary of State Hillary Clinton launched an entirely expected political firestorm. For those who had long viewed the entire investigation into Secretary Clinton as “rigged” from the start, this revelation – derived from transcripts of interviews with FBI officials in a separate matter – was easy pickings to score political points. For those of us who have experience representing individuals in internal investigations and who can assess the situation objectively, however, these preliminary steps taken by Director Comey reflect nothing more than proactive musings on his part with respect to what he anticipated his likely decision would ultimately be with respect to Secretary Clinton and her senior aides.

The controversy surrounding Secretary Clinton’s use of a private e-mail server while she served as Secretary of State dogged her presidential campaign throughout virtually the entire election cycle. That dark cloud hanging over Secretary Clinton’s campaign was entirely deserved and completely self-inflicted. Although I remain of the opinion that Secretary Clinton’s actions did not require prosecution, I completely endorsed the scathing remarks made by Director Comey with respect to the carelessness exercised by Secretary Clinton and her senior aides in properly safeguarding classified information. Their actions may not have been deliberately designed to mishandle classified information, but that excuse holds little weight for the rank-and-file officials my firm routinely represents and should not hold any additional weight for the former Secretary or her senior aides. If any of those individuals are considered for U.S. Government employment again in the future, I predict they will face a considerably difficult and uphill battle in once again being granted access to classified information.

None of that changes the simple truth of the appropriateness of Director Comey’s decision to decline recommending criminal prosecution. DOJ rarely (if ever) seeks to prosecute negligent (even careless) mishandling of classified information, and there was no evidence produced to justify departing from that policy in the case of Secretary Clinton or her aides.

The discovery that Directory Comey was already leaning towards that viewpoint in May 2016, two months before he made his final decision and right before the interviews of relevant individuals (including Secretary Clinton) began, does nothing to change the equation. The FBI investigation into the matter had been ongoing for nearly one year by the time the interviews took place. The FBI already had a fairly comprehensive picture of the history underlying the creation and use of the private e-mail server before the interviews were conducted. There is little evidence (if any) that emerged from the transcripts of those interviews (many of which were made public in the following months) that would have changed the FBI’s understanding of the situation.

The private e-mail server was never designed nor intended to be used to transmit or receive classified information. That Secretary Clinton and her senior aides were sloppy in how they crafted their e-mails, and allowed classified information to slip into the verbiage they were memorializing in e-mails meant to be unclassified, does not render their actions as deliberate or intentional efforts to mishandle classified information. They were serious security violations to be sure, and would warrant possible disciplinary action if they had still been employed by the U.S. Government, but they were not necessarily something that required pursuit as a criminal matter.

Nor do the separate concerns about possibly inappropriate destruction of records subject to preservation requests do anything to paint Director Comey’s remarks in a nefarious light. These were preliminary remarks that, as the transcript of Director Comey’s Chief of Staff, Jim Rybicki, showed, were drafted “knowing the direction the investigation is headed, right, what would be the most forward leaning thing we could do…” The drafting of these remarks did not obligate Director Comey to adhere to that viewpoint if new, adverse information had emerged from the then-pending interviews that would alter that viewpoint. They reflected nothing more than a proactive formulation of thoughts based upon Director Comey’s preliminary assessment of the situation. No evidence has been produced to date to show that any of the investigating officials were aware of these preliminary remarks or that Director Comey sought to interfere with the investigation by making known a pre-conceived determination of innocence.

To immediately leap to the conclusion – as some with brazenly-obvious political and ideological agendas have been quick to do – that the remarks reflect a concerted and inappropriate effort by Director Comey to protect Secretary Clinton is little more than hackery. There is nothing wrong with Congressional investigators inquiring further into this matter, but the way in which some individuals – including in the Oval Office – have sought to score political points here simply further denigrates their credibility and professional reputations.

The Clinton e-mail investigation was by no means flawless, but it was not “rigged”. Beating that dead horse with this new information will not change that fact.

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