Charles Ambrose is a graduate of the United States Air Force Academy, a former USAF JAG officer and served for 25 years as an Assistant U.S. Attorney in D.C. and the Western District of Missouri. He is the author of the Jeff Trask crime dramas, writing under the name Marc Rainer. His newest novel in the series, A Winter of Wolves.
By Chuck Ambrose
The announcement Friday by FBI Director James Comey that he was re-opening the investigation into the Hillary Clinton email scandal has most of the nation wondering what led to this change of status, and the timing of his announcement. Before joining that guesswork, a review of what brought us to this point is appropriate.
In July, Comey took the highly unusual step of publicly castigating Clinton before announcing that he would recommend against any prosecution. His legal “analysis” of the proof against Clinton was also highly unusual.
First, there were the facts of the investigation as summarized by Comey himself. These facts included the intentional establishment of an unauthorized server in the Clinton residence, the repeated sending and receipt of highly classified matters, the former secretary’s repeated lying about her actions and the nature of the emails, and her attempts to destroy the evidence against her. Proof of intent is generally established by evaluating the actions of the suspect, including false statements and the destruction of evidence. Nevertheless, Comey initially decided that there was insufficient evidence in all of that to show any criminal intent.
After ignoring evidence which would have met the intent prong of the statute, Mr. Comey essentially wrote subsection (f) (the gross negligence section) out of the applicable statute. The Director’s explanation that he had worked all his life to “decriminalize negligence” and thereby would not recommend prosecution was nothing short of ridiculous. It should be first noted that Mr. Comey offered no such examples of his “life’s work,” and it is doubtful that there are any.
There has always been prosecution of criminal negligence, and with good reason. Negligent homicide by reckless driving is one common example that should come readily to mind. Intent to kill is not required. The negligent actions taken are so inherently reckless as to endanger human life, and are therefore included in virtually every state and federal criminal code as punishable offenses. It must also be noted that Mrs. Clinton’s unguarded emails may have similarly resulted in at least one death—that of an Iranian scientist who was executed by Iran as a spy after his name surfaced in one of the emails on Clinton’s unprotected private server.
Comey’s recommendation against indictment in the Clinton case was—to some extent—a delusion of grandeur, since it presumed that any contrary recommendation would have been given serious consideration by the Obama/Holder/Lynch Department of “Justice.” The FBI cannot convene a grand jury or seek an indictment without the approval of DOJ, and in cases involving high-level officials such as the former Secretary of State, such approval is generally reserved to the Attorney General herself or her designee. Given Ms. Lynch’s infamous tarmac tryst with the husband of the target of this investigation, indictment was never really in the cards.
In fact, even the empanelment of a grand jury in this matter was never in the cards. Ever since the Supreme Court’s decision in the Nixon Watergate case, it has been established that executive privilege cannot be successfully used as a shield against grand jury subpeonae which seek to uncover evidence of criminal wrongdoing. The act of convening a grand jury would therefore have had the effect of exposing even the President—now known to have used an alias to communicate with Clinton on her illegal private server—to the investigation.
Faced with these rules of the game, Comey did what he has always done: first, attempt to be all things to everyone, and second, if challenged, play the role of the omnipotent superior being.
In his July conference, Comey first issued a damning verbal indictment of Clinton, laying out more than sufficient evidence for conviction under several prongs of the Espionage Act. He then attempted to preempt the inevitable reversal by a politically-compromised DOJ by recommending no indictment.
When his decision was challenged by an incredulous congressional committee, Comey reverted to his alternative posture. He imperially declared that his decision was based upon a “unanimous” decision by the investigative team and FBI hierarchy, and that “no reasonable prosecutor” would have disagreed with his recommendation against indictment. Since that time, leaks to news agencies have claimed that the agents actually investigating the case were unanimously in favorof indictment, and seasoned former federal prosecutors have openly challenged Comey’s assertion that they would not have filed the case.
We are now left to wonder what changed the Director’s mind, and why the reversal came at the eleventh hour of the presidential campaign. While each of the following possibilities is admitted speculation, each also has merit for consideration:
- There is truly the proverbial “smoking gun” in the newly recovered materials from the digital devices used by Huma Abedin and Anthony Wiener. The new material is so explosive that Comey has no choice but to reverse course.
- The revolt by line agencies and/or DOJ staff attorneys working the Clinton case is so severe that Comey is caving to this backlash in order to save face and maintain some credibility within the agency he commands.
- Members of Congress have been trying to go behind the curtain that Comey drew around his investigators after claiming that they were all in “lock step” with his decision not to prosecute Clinton. Investigators were, after all, required to sign non-disclosure “gag orders.” A demand by congressional Republicans for the names of the “worker bees” for whom Comey dared to speak could be the first step toward calling those agents themselves to testify. Their public, contradictory testimony could have the effect of permanently destroying Comey’s credibility, or even paving the way for contempt and/or perjury proceedings against Comey himself. By finding a “smoking gun” in the Abedin/Wiener devices, Comey could shift the focus back onto Clinton. Congressional members would lose their desire to pierce the veil of deception created by the Director’s former testimony, and might even lose their desire to pursue Comey himself.
It remains to be seen which of these possibilities—or a combination of them— is established as fact. One thing is for certain. A chameleon changes colors to protect himself, and fall is the season for changes of colors.