www.nationalreview.com/2018/05/clinton-email-trump-russia-probes-justice-department-double-standards/In Politicized Justice, Desperate Times Call for Disparate Measures
By ANDREW C. MCCARTHY
May 19, 2018 6:00 AM
FBI director Comey and the Obama Justice Department applied a double standard in their handling of the Clinton-email and Trump–Russia investigations.
We wuz robbed. That’s the theme Democrats and their media allies are working hard to cement into conventional wisdom. And robbed in a very specific way: The 2016 presidential election, we’re to believe, was stolen from Hillary Clinton by disparate treatment. As Democrats tell it, the FBI scandalized their candidate while protecting Donald Trump.
You might think peddling that story with a straight face would be a major challenge. But they figure it may work because it was test-driven by the FBI’s then-director, James Comey, in his now infamous press conference on July 5, 2016 — back when the law-enforcement and intelligence apparatus on which we rely to read the security tea leaves was simply certain that Mrs. Clinton would win.
If you or I had set up an unauthorized private communications system for official business for the patent purpose of defeating federal record-keeping and disclosure laws; if we had retained and transmitted thousands of classified emails on this non-secure system; if we had destroyed tens of thousands of government records; if we had carried out that destruction while those records were under subpoena; if we had lied to the FBI in our interview — well, we’d be writing this column from the federal penitentiary in Leavenworth. Yet, in a feat of dizzying ratiocination, Director Comey explained that to prosecute Mrs. Clinton would be to hold her to a nitpicking, selective standard of justice not imposed on other Americans.
So it was that the New York Times, in this week’s 4,100-word exposé on the origins of the FBI’s Trump–Russia probe, recycled the theme: Government investigators were savagely public about Clinton’s trifling missteps while keeping mum about the Manchurian candidate’s treasonous conspiracy with Putin.
As we contended in rebuttal on Thursday, the Times’ facts are selective and its narrative theme of disparate treatment is hogwash: Clinton’s bid was saved, not destroyed, by Obama’s law-enforcement agencies, which tanked a criminal case on which she should have been indicted. And the hush-hush approach taken to the counterintelligence case against Donald Trump was not intended to protect the Republican candidate; it was intended to protect the Obama administration from the specter of a Watergate-level scandal had its spying on the opposition party’s presidential campaign been revealed.
But let’s put that aside. Let’s consider the disparate-treatment claim on its own terms.
The DNC Server
It has now been confirmed that the Trump campaign was subjected to spying tactics under counterintelligence law — FISA surveillance, national-security letters, and covert intelligence operatives who work with the CIA and allied intelligence services. It made no difference, apparently, that there was an ongoing election campaign, which the FBI is supposed to avoid affecting; nor did it matter that the spy targets were American citizens, as to whom there is supposed to be evidence of purposeful, clandestine, criminal activity on behalf of a foreign power before counterintelligence powers are invoked.
But what was the rationale for using these spying authorities?
The fons et origo of the counterintelligence investigation was the suspicion — which our intelligence agencies assure us is a fact — that the Democratic National Committee’s server was hacked by covert Russian operatives. Without this cyber-espionage attack, there would be no investigation. But how do we know it really happened? The Obama Justice Department never took custody of the server — no subpoena, no search warrant. The server was thus never subjected to analysis by the FBI’s renowned forensics lab, and its evidentiary integrity was never preserved for courtroom presentation to a jury.
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How come? Well, you see, there was an ongoing election campaign, so the Obama Justice Department figured it would be a terrible imposition to pry into the Democrats’ communications. So, yes, the entire “Russia hacked the election” narrative the nation has endured for nearly two years hinges on the say-so of CrowdStrike, a private DNC contractor with significant financial ties to the Clinton campaign.
In Investigations 101, using foreign-intelligence authorities to spy on Americans is extraordinary, while taking custody of essential physical evidence is basic. By the way, the government’s failure to ensure the evidentiary integrity of the DNC server by taking possession of it and performing its own rigorous testing on it makes it practically impossible to prosecute anyone for “colluding” in Russia’s cyber-espionage. It’s tough to prove that anyone conspired in something unless you can prove beyond a reasonable doubt that the something actually happened the way you say it happened. To do that in a courtroom, you need evidence — a confident probability analysis by your intelligence agencies won’t do.
The Espionage Act v. the Logan Act
Here is then-director Comey’s explanation of why Mrs. Clinton should not be indicted for patent felony violations of the Espionage Act’s provisions on mishandling classified information:
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.
This statutory analysis is gibberish. Notwithstanding that Mrs. Clinton’s actions were intentional and willful, the Espionage Act does not require proof of that mental state. Despite considerable evidence that she obstructed investigations, it’s not necessary to prove that either. Nor to establish disloyalty or any intent to harm the United States. To avoid indicting Mrs. Clinton, the FBI and Justice Department ignored the statute that has been on the books for a century and substituted an impossible-to-prove statute of their imagination.
Now, let’s consider a statute that’s been on the books for over two centuries, the Logan Act.
The Logan Act is patently unconstitutional, but no court has had the opportunity to invalidate it because, to borrow a phrase, no reasonable prosecutor would bring such a case.
Despite the absence of any evidence that the Trump campaign conspired in Russia’s espionage, the Obama Justice Department — led by then–acting attorney general Sally Yates — relied on the Logan Act to conduct a criminal investigation of General Michael Flynn, a 30-year decorated combat veteran. A key Trump campaign adviser who played a central role in the Trump transition and was designated as the incoming national-security adviser, it was Flynn’s job to communicate with such foreign counterparts as Russian ambassador Sergey Kislyak, a Washington fixture whose dance card has never been short on Democrats. Flynn was also an intense Obama critic, and the outgoing administration understood that he was preparing to reverse Obama policies.
The Obama Justice Department and FBI investigated Flynn — including an ambush interview — on the theory that his discussions with Kislyak and other diplomats violated the Logan Act. Currently codified as Section 953 of the federal penal code, this statute purports to criminalize “any correspondence or intercourse” with agents of a foreign sovereign conducted “without authority of the United States” — an impossibly vague term that probably means permission from the executive branch. The Logan Act is patently unconstitutional, but no court has had the opportunity to invalidate it because, to borrow a phrase, no reasonable prosecutor would bring such a case. As our Dan McLaughlin has explained, the Act dates to 1799, a dark time for free-speech rights during the John Adams administration. Never in its 219-year history has it resulted in a single conviction; indeed, there have been only two indictments, the last one in 1852.
By contrast, there have been several prosecutions under the Espionage Act, including several convictions of military personnel prosecuted under the same provisions at issue in Mrs. Clinton’s case — although their misconduct was far less extensive.
Incidentally, in the ambush interview, Flynn, without counsel and apparently unaware that he was being questioned as a suspect, was grilled about what was said in a conversation with Kislyak. There was no intelligence need to do this because the FBI had a recording of the conversation. The agents who questioned Flynn, including counterespionage specialist Peter Strzok, determined that Flynn did not lie to them.
He was later prosecuted by the special counsel for lying to the FBI.
Truth or Consequences
Speaking of lying to the FBI, Mrs. Clinton — during the brief interview the FBI conducted after Director Comey’s speech exonerating her was already written — told agents she did not know what the designation “(C)” in classified documents meant. She claimed to have assumed it might have had something to do with putting paragraphs in alphabetical order, notwithstanding the absence of any (A), (B), or (D) paragraphs.
Patently, this was a false statement: Mrs. Clinton, who was in the Senate for eight years, was indoctrinated in classified-information practice on becoming secretary of state, a position in which classified documents abound. She signed an acknowledgment that she understood her obligations and had read the relevant executive orders on classification — the main one had been issued by her husband. (C), which stands for confidential, the lowest level of classification, is a ubiquitous marking in classified documents, well known to officials with security clearances. But Mrs. Clinton had falsely told the public she had never sent or received any documents “marked classified,” so she needed to pretend that she didn’t know what the classified markings meant.
She wasn’t prosecuted, of course. She got to run for president. Her underlings weren’t prosecuted either — Clinton confidants Cheryl Mills and Huma Abedin both told the FBI they were unaware that Clinton was using a private server while they worked for four years as her top State Department staffers; as the Daily Caller’s Chuck Ross points out, Mills explicitly asked Abedin about the server in a 2010 email.
Paul Combetta, the Platte River Networks technician who serviced Clinton’s homebrew server and applied the “BleachBit” program to destroy tens of thousands of her emails, lied to the FBI in his initial interviews; far from being prosecuted in order to squeeze him for cooperation, he was given immunity. With no fear that there was any interest in prosecuting him, Combetta proceeded to tell a risible story about why he destroyed the emails, transparently protecting Clinton and her subordinates.
