Friday, July 15, 2016

The Curious Case of James Comey and Donald Trump/Updated

 On Tuesday July 5, 2016, FBI Chief James Comey gave a speech. As many others have mentioned, there seemed actually to have been two, unconnected, Comey speeches.

 The first speech gave us a detailed description of lawless activity clearly in violation of  18 U.S. Code § 793 - Gathering, transmitting or losing defense information. 
(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence* permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—
Shall be fined under this title or imprisoned not more than ten years, or both. (Emphasis added)

Comey, in the first speech, characterized Clinton and her associates as having been "extremely careless" in their handling of her emails in general and classified ones in particular. As far as I know "extremely careless" is not a legal term, although "carelessness" is defined in Black's Law Dictionary in part as,

"...The careless person is the person who does not take the care he ought to take: never mind whether he felt careful. He can be held to be negligent in making a perfectly honest mistake". Black's Law Dictionary, 7th Edition, P. 205. (Emphasis in the original).

When used by an experienced lawyer like Mr. Comey, it may or may not be a euphemism for gross negligence. From all I have read and from my own viewing experience I had the impression that he intended it to convey the depths of his contempt for Clinton and company's disregard for the norms of behavior in the handling of state secrets.

The reason for his use of the expression in lieu of gross negligence became clear to me in the second speech, the one that said, essentially, nothing to see here. Had he used "gross negligence" in the first speech he would have materially reduced the already limited coherence of drawing the no prosecution conclusion in the second. An already incoherent conclusion would have been rendered more incoherent.

As you can see from the statute above, the intentions of the subjects being investigated have no relationship to the breaking of the law in subsection (f). This contrasts (f) with (a) and (b) which require intent as part of the crime.

In his second speech Comey said:

 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.

Far more authoritative voices than mine have called foul on this. It just doesn't ring true. Andrew McCarthy at NRO
demolishes Comey's assertions in detail.

We are left to wonder why Mr. Comey, of apparently spotless reputation, chose to humiliate himself in this manner.

None of the wondering leads anywhere we want to go.

 The presidential election of 2008 ushered in, in my opinion, our Emperor's New Clothes era (ENC). Mr. Comey continued it, in grand style, with his speech.

We elected a black President, have had two black Attorneys General, a black man sits on the Supreme Court, a black man heads Homeland Security, we have dozens of black mayors, congresspersons, thousands of black state legislators, city council members and judges (I found no firm figures but extrapolated from this )and descend into racial chaos because we are racists.

We know we are not racists and the evidence is everywhere and overwhelming, but, we must admire the ENC. Among the most overwhelming evidence we have of this is that at 13.125% of the population, black people cannot elect anyone without a great deal of help from us racists. source

We  are told of a great new deal with Iran that will stop them from building a nuke, but we aren't allowed to see the whole deal...because it is so good. But, we must admire the ENC.
UPDATE: Now we know that the part we weren't supposed to see will allow Iran to halve, to six months, the time it will take them to build a bomb when the deal expires . Who could have guessed?

We are told how brilliant our President is but we cannot see his college transcripts...because they are so great. ENC.

Unemployment is at pre-2008 levels Hooray! Not! ENC source  

Everybody knows that right-thinking Americans have always supported gay marriage, and not agreeing makes you a neanderthal.
Right. source  Note the relationship between Obama's change of heart and the 2012 election. ENC.

The list goes on forever. Black is white, white is black. ISIS is not an Islamic organization. We are not sure what motivated Mateen. Hillary didn't do anything she should be prosecuted for and, according to Mr. Comey, a statute that says gross negligence is the required level of responsibility to complete the crime doesn't really mean that.

Which brings us to Donald Trump. I am, at the moment, an extremely reluctant supporter. Among the reasons for my reluctant support is that I can't take being told black is white and white is black anymore.

As I have written before, good luck to all of us.

*Gross Negligence is defined in part as ...A conscious, voluntary act or omission in reckless disregard of a legal duty and of the consequences to another party. Black's Law Dictionary, 7th edition, P. 1057

A lot has been written about conservatives' discomfort with the threshold of gross negligence as sufficient for a criminal conviction. The reason for the discomfort is the exploding number of new crimes being minted by government agencies. Using gross negligence as the replacement for criminal intent places ordinary citizens in jeopardy.

Hillary Clinton is not an ordinary citizen. She signed several documents confirming that she understood the rules. She was grossly negligent in carrying out her duties and should be prosecuted for that malfeasance.



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