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Why Not Indict James Comey?

Why Not Indict James Comey?

Every day on Facebook I see several posts claiming that FBI Director James Comey said Hillary Clinton had lied about her emails, and several posts counter-arguing that Comey proved Hillary didn’t lie. It all proves to me one very unimpeachable fact: James Comey did a crappy job of clearing things up.

In his July 5th press conference, reading from a prepared script, Comey mixed up his explanation of what material was marked classified, what wasn’t, and whether it was indeed classified at the time or not. He further expressed his opinion that Clinton exhibited “extreme carelessness,” a subjective opinion not bound in law and therefore beyond the scope of his official responsibilities. The FBI director is not supposed to give opinions or pass judgments beyond what is legal and what is not. His job was to find evidence of criminal wrongdoing, not to evaluate Mrs. Clinton’s performance as Secretary of State.

Then, in his July 7th testimony before congress, Comey backtracked on most of the so-called facts he had laid out a few days earlier. He acknowledged that only three out of 30,000 emails were indeed suspected of containing any material that was classified at the time, that those emails had no formal headers to show them being classified, just a small (c) marking in the body of the text, and that it was therefore a “reasonable inference” for Clinton to think they weren’t classified. He also changed his characterization from “extreme carelessness” to “great carelessness” (a distinction lost on me) and gave plenty of other testimony to either exonerate Clinton or dilute his earlier, stinging rebuke from behind his FBI lectern.

Frankly, I don’t think Comey was all that clear about what had transpired himself. He got into the weeds and lost in the maze of confusing facts.

His initial statement was clear about the key fact: there was no evidence that Clinton lied in her FBI interview, and he went out of his way to avoid claiming she had lied to the public. Yet the American public still clearly confused about those facts.

A more polished FBI Director would have stuck to these basic points:

  1. The actual facts of the case. Not his interpretation of what Clinton should have thought or known. As Sergeant Joe Friday would’ve said, “Just the facts, ma’am.”
  2. Where Clinton’s account differed from the evidence. Not whether he thinks she “lied” or not, as that is an opinion. Several times during his congressional testimony, he was asked if Clinton “was lying” when she stated in a press conference that she had never sent or received classified emails. He avoided saying yes, but his answers were framed in a way that led some listeners to infer he may have indeed thought she was lying. Comey’s testimony should have been more clear on that point.
  3. Whether he was recommending criminal charges or not, and why. This part he did fairly well. Though, as a law enforcement official, he should have stopped there and not projected his opinion as to whether Clinton’s behavior was “careless” or not.

Think of a traffic cop who stops you for driving erratically. Under the law, he can either cite you for Driving Under the Influence or Reckless Driving. Those are legal definitions of criminal activity. There is no such thing as “Driving While Extremely Careless” and it would not be an officer’s place to publicly announce that verdict. (I know many of Clinton’s critics think “extreme carelessness” equates to “gross negligence.” But Comey’s office didn’t and that’s their call. We don’t get to overrule him.)

The new national craze of quoting law statutes to prove that the two phrases are legally the same or not would never have gained Hula Hoop popularity had Comey not improperly uttered that phrase in the first place. If he wanted to indict, indict. If not, stifle it. He’s paid for his legal opinions, not his moral ones.

By expressing his muddled opinions, Comey made himself the center of the story, rather than the former Secretary of State. That was neither helpful nor professional. He should’ve known better.

In conclusion, regardless of the provocative headline above, I have decided not to recommend an indictment against Director Comey, as I can find no evidence that his mishandling of the Clinton matter broke any laws.

BUT…I do believe the confusing, ambiguous, and unprofessional way Director Comey handled the matter exhibited extreme carelessness on his part.

I will be happy to testify before congress on this matter if asked.

Kevin Kelton is the co-host of the “A More Perfect Union” political podcast and administrator of the Facebook political debate group, Open Fire.

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