woody zimmermann 120Long ago, in 1974, when honesty still mattered in public officials and law enforcement agencies, the much-despised Richard Nixon stood before a TV camera and said, “Your president is not a crook.” That was certainly true, but later disclosures showed that he had lied about his knowledge of a break-in at Democratic headquarters in the Watergate apartments. Consequently, an enraged public and a press corps aroused by the smell of blood raised so much hell that Mr. Nixon resigned “for the good of the country.” (If I had $5 for every politician who declaimed, “He lied to the American people!” I would be as rich as Hillary.)

No such luck now. As Bob Dylan famously sang, “the times, they are a-changin’…” Last week FBI Director James Comey publicly rehearsed the damaging details of Mrs. Clinton’s handling of sensitive e-mails while she was Secretary of State. Millions of Americans who have served in positions of trust as civil servants or as government contractors (as I have) saw that she had clearly violated federal statutes governing the treatment of classified paper and electronic documents. Any one of us would have at least been fired for such conduct. Indeed, judicial sanctions, including jail time, might have resulted. But the Director concluded that a case against Mrs. Clinton could not be prosecuted.

As I have explained in earlier articles, Mrs. Clinton did not merely disobey a few “internal regulations” drawn up by State Department bureaucrats – as she has led us to believe. Hardly that. Those regulations are based on federal laws that govern the handling of sensitive materials. To be culpable, you don’t have to “intend” mischief or harm when you mishandle such documents. Carelessness or negligence, alone, will land you in deep doo-doo. Mere discard of a blank sheet stamped SECRET – as I once did – can produce a severe scolding and no supper that night.

Director Comey’s statement came in the wake of an elaborate Kabuki Theater act staged by AG Loretta Lynch, in which she met privately with former President Bill Clinton on her private jet – at his request, supposedly in a chance encounter. She characterized the meeting as purely social – chitchat about grandchildren, etc. (Ms. Lynch has been married only since 2007; she has no grandchildren.)

When a storm of protest arose over her private meeting with the husband of a woman under investigation by the FBI, Ms. Lynch reacted like an embarrassed schoolgirl caught in flagrante delicto. (‘My goodness, I didn’t realize how this would look…’) Really, what grown person – particularly an experienced public figure – would not realize how inappropriate such a meeting would look? Ms. Lynch then used the uproar as a reason to “recuse” herself from deciding whether to prosecute Mrs. Clinton. She would follow the recommendation of the FBI director, she said. (Anyone buying this absurd story might be interested in the Brooklyn Bridge…)

Accordingly, Director Comey carefully laid out the details of what Mrs. Clinton had done. He minced no words in calling her conduct careless and negligent. The following passages are extracted from his statement of July 5, 2016:

“…Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information. (Emphasis mine.)

“For example, seven e-mail chains concern matters that were classified at the Top Secret/Special Access Program level when they were sent and received. These chains involved Secretary Clinton both sending e-mails about those matters and receiving e-mails from others about the same matters. There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation. In addition to this highly sensitive information, we also found information that was properly classified as Secret by the U.S. Intelligence Community at the time it was discussed on e-mail (that is, excluding the later “up-classified” e-mails).

“None of these e-mails should have been on any kind of unclassified system, but their presence is especially concerning because all of these e-mails 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…

“Only a very small number of the e-mails containing classified information bore markings indicating the presence of classified information. But even if information is not marked “classified” in an e-mail, participants who know or should know that the subject matter is classified are still obligated to protect it.

“While not the focus of our investigation, we also developed evidence that the security culture of the State Department in general, and with respect to use of unclassified e-mail systems in particular, was generally lacking in the kind of care for classified information found elsewhere in the government…”

Director Comey concluded by relating his decision on the case:

“…Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past.

“In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.

“To be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences. To the contrary, those individuals are often subject to security or administrative sanctions. But that is not what we are deciding now.

“As a result, although the Department of Justice makes final decisions on matters like this, we are expressing to Justice our view that no charges are appropriate in this case.

“I know there will be intense public debate in the wake of this recommendation, as there was throughout this investigation. What I can assure the American people is that this investigation was done competently, honestly, and independently. No outside influence of any kind was brought to bear.” [1]

In 1908 a good professional baseball player named Fred Merkle made a base-running error that cost his team, the New York Giants, the National League Pennant. [2] The mistake was not really his fault: inadequate crowd control – far different in 1908 than today – let hundreds of celebrating spectators rush onto the field of play when an apparent game-winning hit was struck. Merkle’s failure to reach second base cost his team the win. Legendary manager John McGraw didn’t blame Merkle, but his “boner” (in 1908 parlance) followed him to the grave. It was even mentioned in his 1956 obituary. Although he compiled a .273 batting average over a fine 20-year career, he is mostly remembered for that one incident.

Mr. Comey – by all accounts a scrupulously honest and highly respected law-enforcement official – might be remembered similarly. His entire career of dedicated government service will be eclipsed by being “the FBI guy who let Hillary Clinton walk.” I felt sympathy for the embarrassment he must be feeling, as he delivered his nonsensical conclusion of the FBI’s investigation.

Did Ms. Lynch not realize that a public educated by decades of TV police dramas know that the cops don’t decide whether a case is “prosecutable?” That’s the AG’s job. At the federal level, the cops are the FBI. They don’t even investigate a case unless the USAG thinks there’s a strong likelihood that crimes were committed.

“…no reasonable prosecutor would bring such a case…”??? Are you kidding me? All kinds of weird cases are prosecuted. A business is sued – successfully!! – by a customer scalded by coffee she held between her legs as she drove. (She claimed it was “too hot.”) A guy gets locked up for posting an internet video that “defames” the Prophet Mohammed. And Scooter Libby – an aide to Vice President Cheney – is prosecuted and convicted for “lying” to the FBI in a case where no underlying crime was actually committed (i.e., the Valerie Plame case).

Director Comey’s statement showed that Mrs. Clinton repeatedly lied when she said she neither sent nor received classified e-mail on her unsecured personal server. Did he somehow forget (or not realize) that lying to the FBI is actually a serious crime for which people have gone to jail and paid large fines?

No, I don’t think he was unaware or had somehow forgotten that Mrs. Clinton’s “mistakes” were actually crimes. I think he was acknowledging – without saying it straight out – that a trial of a major political figure like Hillary Clinton would become a political circus that could never produce a conviction because no jury – indeed, perhaps no judge – could be found that would convict Mrs. Clinton. The political dynamics would prevent it. She would become the O. J. Simpson of her time. She would beat the rap – or get a hung jury – and emerge triumphant. Except for Mrs. Clinton and her followers, who would be the better for that?

What Director Comey did do in his highly unusual statement, however, was lay out details of Mrs. Clinton’s case with such clarity that even a school-child could see her guilt. He knew she couldn’t be tried, but he could spill the beans so effectively that the public would see the truth and draw its own conclusions. He also slyly indicated that security rules apply only to ordinary people by saying that others who acted as Mrs. Clinton did could not expect to avoid penalties. By so doing, I earnestly hope that he has salvaged his reputation to some extent. I don’t like to see a good public servant spattered with mud thrown up by the swine he has to work with.

I have always believed that a goodly segment of the people would be as enraged by Mrs. Clinton’s conduct – if they ever saw what she had really done – as when they saw that Richard Nixon had lied to them. Americans have shown that they don’t consider lies about sex a very big deal. But lies about careless handling of national security matters are in an entirely different league. People know that kind of misconduct could actually hurt them, and they will not countenance it. Democrats – particularly Hillary Clinton – are about to find that out.

We live in interesting times. Hang on – it could be a wild ride.


[1] Read Director Comey’s entire statement of July 5, 2016 at https://www.fbi.gov/news/pressrel/press-releases/statement-by-fbi-director-james-b.-comey-on-the-investigation-of-secretary-hillary-clintons-use-of-a-personal-e-mail-system

[2] See “Reliving History with the Chicago Cubs”; October 18, 2015 – http://www.ahherald.com/columns-list/at-large/21028-reliving-history-with-the-chicago-cubs