The head of the FBI has characterized Democratic presidential candidate Hillary Clinton as “extremely careless” in handling sensitive — even classified — information on her private email server when she led the U.S. State Department. Still, FBI Director James Comey generated controversy in July when he concluded that “no reasonable prosecutor” would charge Clinton with a federal crime. One former federal prosecutor, Campbell University assistant law professor Zachary Bolitho, discussed Comey’s conclusion with Mitch Kokai for Carolina Journal Radio. (Click here to find recent CJ Radio episodes.)
Kokai: You heard the FBI director spell out this case, or lack of case, against Hillary Clinton. What was your first impression?
Bolitho: Well, my first impression was that the entire press conference itself was very odd and unusual in the sense that the FBI director, or the FBI in general, doesn’t announce, publicly, recommendations as to charges. So the fact that the FBI director is having a press conference to announce what normally would be a secret communication between the FBI and the U.S. Attorney’s Office, or the U.S. Department of Justice, itself was very strange — something I’d never seen and something some former colleagues of mine, who’ve been DOJ lawyers for a long time, have never seen. So right away, that struck me as odd.
And it colored the whole, entire press conference because the role of the FBI is to find facts and gather information. The role of the U.S. attorney or the U.S. Department of Justice is to look at those facts and make a determination, whether, under the law, there is a case to be brought before the grand jury, and if the grand jury indicts, whether you will go forward to trial.
Here the FBI director was basically making the decision or announcing his decision of what should happen with the prosecution. Just very strange.
Kokai: Now as a prosecutor, had that been done in one of your cases, would you have said, “Hey, wait a minute, that’s my job”?
Bolitho: I would have been very upset because, in a sense, the FBI director has boxed DOJ into a corner because he has come out and publicly said his recommendation. He doesn’t think there’s a basis for a prosecution. But he says that ultimate decision is up to the Department of Justice and its prosecutors. But now, if you’re sitting there as a Department of Justice prosecutor, you’ve had the FBI director say he doesn’t think there’s a case. And so what are you going to do at that point? So it’s painted you into a corner.
And also, to be honest, it’s bowling outside of his lane. If I’m a prosecutor, I would think, “You find the facts. You read the documents. You come up with the investigative report. Let me do the work of determining if a prosecution is appropriate or not. I don’t tell you how to investigate the case. You don’t tell me whether I should prosecute it.”
Kokai: For those who were watching or listening to this news conference — who aren’t attorneys, who aren’t federal prosecutors — I think most people heard the first two-thirds … of it, and said, “Wow. She did all of these really bad things, and it sounds like she’s in real trouble.” And then, near the end, “Oh, but no. No one should do anything about this.” Did we get the same sense that someone who does know the law gets from this?
Bolitho: I have the same sense. In fact, I think you could view that first part of the press conference as almost a prosecutor’s opening statement as to why this was a proper forum for prosecution, why this was a proper case to be brought. And then there was kind of that unforeseen left turn that left me shaking my head as to how the first part of that press conference squared with the end.
Kokai: Now, another key element of this discussion from FBI Director Comey was the notion that, even though there was what he described as “extreme carelessness,” and that there was a possibility that some of these emails got into the wrong hands, that there was no intent from former Secretary of State Hillary Clinton to harm the United States — to do anything wrong, to break the law. And because there was no intent, that was one of the reasons a prosecutor is unlikely to go forward with the case. From some of the commentary I’ve been reading, in this particular type of crime, intent is not an issue.
Bolitho: Intent is not an element of the crime. There are two federal statutes that the FBI was looking at. The first one is Title 18 United States Code, Section 793 (f). All that it requires is that you are an individual who’s been entrusted with national defense information, and that through gross negligence, you have either removed or caused that information to be removed from its proper place. So nowhere in those elements is there an intent to cause harm to the United States or an intent to violate the law. The standard is gross negligence and not an intentional crime.
Kokai: So in this case, the particular crime that they were looking at, intent is irrelevant?
Bolitho: Intent is irrelevant. And in fact, in the law sometimes, as prosecutors, we would refer to — when a defense had created an argument that really had no bearing on the actual issue to be decided — we would call it a “straw man.” We would say that, “The defense, ladies and gentlemen, the defense has just stood up before you, and they’ve created a straw man. And then they’ve beat it down. But what they just said has nothing to do with what the judge is going to instruct you the law is.”
And in fact, if I was giving a rebuttal to FBI Director Comey’s press conference, I would stand up and say, “That’s all well and good. Of course, ladies and gentlemen, when the judge instructs you on the elements of this crime, he’s never going to use the word ‘intent.’ All of the stuff about intent is irrelevant. We don’t have to prove intent.”
Kokai: This is not your case. You’ve not spent a great deal of time looking at all the evidence. Given what you know, though, and given what the FBI director spelled out, if this were dumped in your lap as a prosecutor, what would you be looking at to see whether there should be a case that would go forward?
Bolitho: Of course, I’m not privy to all of the information. I don’t know what the investigators saw. But just based upon his statements at the beginning — that there was evidence of extreme carelessness, and I think he even says there was evidence of criminal activity that occurred here — if I’m looking at that, I’m first taking the elements that I just laid out, I’m looking at those elements, and I’m saying, “What evidence do I have on element No. 1? Where is that evidence going to come from? Is it going to come from a credible source? What are the weaknesses of that particular evidence?” And I’m going to do that with each element to assure myself that I can prove, beyond a reasonable doubt, to 12 citizens that the crime has been committed.
So I think that, of course, this case has a lot of atmospherics, contextual factors, that would have to be considered by DOJ as well. If you’re a prosecutor, you don’t prosecute everybody who has technically violated the law. You have to use discretion. And those are case-by-case determinations based upon circumstances and the context of the case.
Kokai: Some people who’ve been looking at this say, “It looks as if it’s putting into play a situation where the normal person would probably get charged with something like this, but the politically connected people can get away with it.” Based on what you know about how the process works, is this an example that would [lead] people to think this?
Bolitho: I certainly understand how that perception could be conveyed to individuals. I’d like to think that that’s not the way the system really works. I didn’t see it work that way. Of course, this case just has a lot of other things going on that lend itself to that. But what I think is, if you’re trying to convey the message that, “We handled this the way that we would have handled everything else,” then handle it the way that you would handle everything else.
Don’t go out and give a press conference as the FBI director. Send your recommendation privately to the Department of Justice, along with your investigative report. Let the prosecutors there do their job, reach their decision, in the way that you normally do. When you add all these other things that make it look abnormal, I think it just adds to the perception that this has been treated in a different way.