By George Parry
As a criminal defense lawyer who has been forced by unfortunate circumstances to champion any number of hopeless causes, I wish to express my professional admiration for FBI Director James Comey's creative and, dare I say it, "Clintonian" public exoneration of former Secretary of State Hillary Clinton.
The FBI investigated Clinton for possible violations of a criminal statute that makes it a felony for anyone lawfully possessing information pertaining to the national defense to allow it, through "gross negligence," to be removed from its proper place of custody and disclosed. In other words, under the statute, one need not intend to cause harm. As with a drunken driver who accidentally runs down a pedestrian, "gross negligence" alone is sufficient to warrant a felony charge.
In his press conference, Comey made it clear that Clinton had repeatedly and over a period of years stored, sent, and received "very sensitive, highly classified information" on her unclassified, nongovernment email server. But although Comey conceded that Clinton was "extremely careless" in doing so, he nevertheless concluded that she should not be charged because there was no "clear evidence" that she "intended to violate laws governing the handling of classified information."
Hit the pause button. Do you see what he did?
Confronted by an insurmountable mountain of proof of Clinton's grossly negligent and therefore felonious mishandling of classified information, the G-man didn't flinch. Instead, with a straight face and without apparent embarrassment, he smoothly raised a totally irrelevant nonissue (lack of clear proof of intent) to give Clinton a pass. In doing so, Comey employed a time-honored rhetorical device used by criminal lawyers every day in courtrooms across America, i.e., raising an utter irrelevancy to divert, distract, confound, and confuse the jury. The unusual twist here is that instead of a slick, devious mouthpiece straight from central casting, we have no less than the FBI director himself resorting to this venerable dodge. Coming from the pinnacle of law enforcement, Comey's well-executed sleight of hand might even impart a veneer of respectability to what many have long called a cheap, pettifogging lawyer trick.
Of course, others have been convicted on far less evidence. But unlike Clinton, they were just little people. Take, for example, naval reservist Brian Nishimura, who in 2012 was convicted of handling "classified materials inappropriately" while deployed in Afghanistan.
According to the FBI, Nishimura had access to classified materials that "could only be retained and viewed on authorized government computers." Nishimura downloaded those materials to "his personal, unclassified electronic devices and storage media," which he carried "when he traveled off-base in Afghanistan" and, ultimately, when he returned home. Even though the FBI found no evidence that he "intended to distribute classified material to unauthorized personnel," Nishimura was convicted of a felony, sentenced to two years' probation, fined $7,500, stripped of his security clearance, and forbidden to ever again apply for such a clearance.
Which raises this question: If Nishimura's use of his "personal, unclassified electronic devices" was criminal, how can Clinton's wholesale use of her personal, unclassified email system to store, send, and receive top-secret information not be criminal? And in terms of potential harm to the nation's security, who exposed us to greater risk, Nishimura or Clinton?
The next time some hapless soldier or file clerk is indicted for placing a classified file in a gym bag or otherwise mishandling government secrets, I recommend that his or her counsel place in the record the entire transcript of Comey's inspired and very helpful press conference. For if we are indeed a nation where the law applies equally to all, no one need ever again fear prosecution for negligently mishandling government secrets. After all, what's sauce for the goose must be sauce for the gander. If Hillary's not guilty of negligently mishandling government secrets, then no one else ever can be.
Unfortunately for poor Brian Nishimura, Comey's public sheep-dipping of Hillary Clinton comes too late. He's a convicted felon and can never again apply for a security clearance. But Hillary? Thanks to Comey, she's in the clear and on her way to getting the highest security clearance of them all.
We can only wonder what she and the money managers at the Clinton Foundation will do with all those valuable government secrets to which she will once again have official access.
George Parry is a former state and federal prosecutor practicing law in Philadelphia. firstname.lastname@example.org