Washington (CNN)FBI
Director James Comey relied heavily on eight words Tuesday when
recommending that no charges be brought against Hillary Clinton for her
use of a private email server.
"No reasonable prosecutor would bring such a case," Comey said.
The
comments triggered a fierce debate between former prosecutors,
government officials and legal experts on the exact definition of
"reasonable" as it pertains to Clinton's case.
"A
reasonable prosecutor could bring a case because the facts clearly
establish many violations of law" said Joseph E. diGenova, a former U.S.
attorney for the District of Columbia appointed by Ronald Reagan.
"Comey's statement that there was no intent is completely negated by the
fact that Clinton used multiple private servers and devices which were
unencrypted and thus she knew that classified information would be
compromised."
He
added: "This is simple stuff. It was clear to me that he was
predisposed not to bring a case. This was a political decision, not a
legal one."
Michael Mukasey who served as attorney general under the George W. Bush administration, said Comey's explanation was lacking.
"Mr.
Comey didn't explain why, with evidence clearly fulfilling the
requirements of the two statutes involved, no reasonable prosecutor
would bring the case," Mukasey wrote in a Wall Street Journal op-ed.
In
his unusual news conference, Comey revealed that 110 emails in 52 email
chains had been determined to contain classified information at the
time they were sent or received. Comey castigated Clinton and her
colleagues for being "extremely careless" in their handling of the
classified information. But he said the FBI did not find "clear
evidence" that Clinton "intended" to violate laws governing the handling
of classified information.
He was
referring mostly to 18 USC 793, which makes it a felony for someone
"entrusted" with information relating to the national defense "through
gross negligence" to allow information to be "removed from its proper
place of custody."
Comey noted
that prosecutors weigh a number of factors before bringing charges
including the strength of the evidence and how similar situations have
been handled in the past.
He said
that cases that had been prosecuted before involved a 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."
"We do not see those things here," he said.
But
Mukasey argued that Comey's decision left some "puzzled and dismayed"
in part because Comey stressed intent over gross negligence. "Gross
negligence," he said, rather than purposeful conduct, is enough.
DiGenova
said that Comey's decision was "political" meant to help Clinton. "In
doing so he permanently enshrined a double standard in U.S. law
enforcement," he said.
But Abbe Lowell, an attorney who has been involved in classified information cases as a defense attorney, disagreed.
"The FBI Director could not have been more correct," Lowell said in an interview.
"The
common denominator of every criminal case that has ever been brought
under the classified information protection laws is that the individual
under investigation intentionally sent material to someone not
authorized to receive it -- such as a journalist, foreign country or a
government contractor," Lowell said.
"Here
it was clear from the beginning that Secretary Clinton shared whatever
information she shared with people in the government -- that makes it
different than any case that everybody is throwing up for comparison,"
he added.
Steven Levin, a former
federal prosecutor and a registered Republican, says that he understands
why some might take offense to Comey's phrasing as to who might be a
"reasonable prosecutor" but he believes that Comey was trying to draw a
distinction between those who exercise strong discretion and those who
abuse it.
"Comey makes clear that
even though the statute doesn't require willful intent, he does, and he
thinks reasonable prosecutors should look for that. I think it's
refreshing for the FBI director to exercise discretion when all too
often prosecutors bring charges simply because they can, not because
they should," he said.
At the end
of his statement Comey -- who also served during the George W. Bush
administration -- acknowledged that his decision would trigger "intense
public debate" but he stressed that the investigation was done
"competently, honestly and independently."
"Only the facts matter," he said, "and the FBI found them here in an entirely apolitical and professional way."
Comey is scheduled to testify Thursday on Capitol Hill regarding the investigation.
Clinton campaign spokesman accused Republicans of playing politics based on Comey's decision.
"For
weeks Republicans have said they trusted FBI Director Comey to lead an
independent review into Secretary Clinton's emails, but now they are
second-guessing his judgment because his findings do not align with
their conspiracy theories," Fallon said in a statement.
Soucre: CNN
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