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Did the FBI Rewrite Federal Law to Benefit Hillary Clinton?

by Jeremy Holcombe

The “biggest load of bull I ever heard.”

That’s how Bill Clinton responded to a question during a campaign event in Las Vegas on Friday.

Clinton was talking about the allegations that his wife, Hillary, lied about mishandling classified emails.

The former-President’s remarks renewed the Republican-Democratic debate that has been brewing since early July when FBI director James Comey cleared Hillary Clinton. Legal experts see Comey’s statement as re-writing federal law. They may be right.

According to Comey, Clinton met every requirement for a felony violation of Section 739(f) of the federal penal code

Clinton had lawful access to classified information and acted with “gross negligence” in removing and causing to be transferred from a protected place of care. Clinton sent it and ordered it to be transmitted to others who were not authorized to posses the information.

Two hours before Clinton and President Obama left Washington, Director Comey even conceded Clinton was careless and suggested her “recklessness” probably led to communications later intercepted by foreign intelligence services.

Director Comey then surprised the establishment by recommending against prosecution on the idea of no “intention” to harm America existed.

The FBI revised the statute so Clinton could get a pass. Congress never inserted an “intention element” into the law, and its presence in Comey’s statement makes no sense to observers.

The whole idea of having a law criminalizing “gross negligence” is to drive home the idea of administration executives having a unique responsibility to guard federal secrets. When they abandon the responsibility, they are chargeable of wrong doing. The absence of intent to cause harm is irrelevant. No one ever intends bad things to happen because of gross negligence.

A common practice of defense lawyers is the establishment of a straw-man for the jury: a crime the accused did not commit. The thought is that by knocking down one crime, the prosecution doesn’t allege and can’t prove, the defense may confuse the jury. Judges often do not allow this sleight-of-hand as the innocence of an uncharged crime is irrelevant.

Experts are saying this is what the FBI did. The FBI informed the populace since Clinton did not show the intention of harming America, she should not be indicted for a crime which does not demand evidence of intention to injure.

In different words, though there may have been significant impairment to national security by “gross negligence” the FBI decided Clinton should not be indicted for negligence.

Director Comey claimed no “reasonable prosecutor” would open a case built on the evidence uncovered by the FBI. A sensible prosecutor would question: “Why did Congress criminalize the mishandling of classified data?”





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