July 6, 2016

FBI Director’s Statement: What Does It Mean?

Filed under: Probable Cause — Tags: , — Bill @ 12:16 pm

Clinton 100OpacityIn a prepared statement to the media yesterday FBI Director James Comey declared the FBI has determined “…no charges are appropriate in this case.”  He’s referring to Hillary Clinton’s private email server having been improperly used to store and communicate national security information.

So what does Director Comey’s declaration mean?  It means exactly what it says and nothing more:  The FBI does not recommend to the Department of Justice (DoJ) that any criminal complaints relating to the email server be filed or indictments sought against anyone in that matter.

Ultimately the decision to seek indictment or an arrest warrant rests entirely with the DoJ in its role as prosecuting attorney over federal laws.

If they choose, the layers of lawyers at Main Justice can accept the FBI’s recommendation, reject it, or after evaluating the results of the FBI’s investigation, direct the FBI to investigate further before DoJ makes its charging decision.

So is it over?

No.  Not until the DoJ lawyers say it’s over.  If and when the feds decide prosecution is warranted and most appropriate, it is still on the table as long as the actions commence within the statutes of limitations on the crimes alleged.

As we’ve commented in previous OpenCdA posts on this matter, criminal prosecution is not the most important or even the most desirable result of the FBI’s investigation.

The first, most important, and most desirable result of the FBI’s and the Intelligence Community (IC) investigations is to determine exactly how much damage this entire matter of the Clinton email server and collateral issues (e.g., the use or misuse of foreign and domestic funds routed through The Bill, Hillary & Chelsea Clinton Foundation) has harmed our national security.

In his statement yesterday, Director Comey alluded to this when he said:

“Where an e-mail was assessed as possibly containing classified information, the FBI referred the e-mail to any U.S. government agency that was a likely “owner” of information in the e-mail, so that agency could make a determination as to whether the e-mail contained classified information at the time it was sent or received, or whether there was reason to classify the e-mail now, even if its content was not classified at the time it was sent (that is the process sometimes referred to as “up-classifying”).” [emphasis ours]

That type of referral was part of the overall damage assessment that is ongoing in the IC.

The IC’s damage assessment will more effectively reveal the damage Clinton’s “extremely careless” actions did if the assessment is not done under the demanding and very public glare of a criminal prosecution.  In the process of ensuring a Constitution-compliant criminal trial for any defendant, the DoJ prosecution would be put in the risky position of possibly revealing even more information damaging to our national security and the methods the IC uses to protect it.

Senator Charles Grassley and Senator Ted Cruz have both insisted that FBI Director Comey “… release all evidence from the criminal investigation into Hillary Clinton’s private email servers …” according to an article posted on Townhall website.  For the reason state in the immediately preceding paragraph, OpenCdA disagrees with Grassley and Cruz.

We suggest that all members of Congress ought to focus on providing the IC with the support it needs to complete the damage assessment rather than engaging in self-serving political posturing and pandering.   Preserving the national security ought to be first and foremost in the minds of all elected and appointed officials at all levels of government.


  1. I disagree … there is nothing to preserve. We have no security. Our IC whoever they are — are not doing a very good job or we would not be in this mess. I feel Congress should be demanding the evidence, I also feel our own State Senators should be demanding the evidence, so they can protect their own states. Risking Crooked Hillary as President while the IC takes their sweet time for a “damage assessment” is not the answer. The FBI statement was enough. It says it all. She needs kicked off the ballot, NOW. Congress needs to act swiftly and they need to be very loud about their demands. Crooked Hillary is the terrorist and we cannot barter with her, but it looks like the FBI and the DOJ do not mind being her scapegoats. I am not a fan of Ted Cruz but in this case, I hope he turns this fiasco upside down and gets it all. There is no more trust and exposing EXTREMELY CARELESS Crooked Hillary as the terrorist and traitor that she is is vital to the security of this country. They cannot waste one minute. Hillary Clinton has committed an atrocity of a different caliber, but that is what she has done and I am mad as hell.

    Comment by Stebbijo — July 6, 2016 @ 5:36 pm

  2. Stebbijo,

    Thank you.

    You are absolutely correct and I completely agree with you that Congress members (but not any of their staff members) should be demanding to see the evidence — BUT not initially in a public session and not for the purpose of partisan exploitation in an election year. If the FBI Director and the Attorney General can make a plausible and rational case for national security which necessitated squelching an otherwise prosecutable case against Hillary Clinton or any of her cohorts, let them make it where the highly sensitive national security information can be discussed without further compromise.

    Here’s a purely hypothetical situation:

    Suppose that the existing case against Hillary Clinton, Bill Clinton, Huma Abedin, Cheryl Mills, et al ad nauseum is as shaky as Comey and Lynch have suggested. Suppose further that a much stronger criminal case against Hillary Clinton for violations of the Foreign Corrupt Practices Act or even the Espionage Act is being built but would be compromised during defense discovery for trial under the shaky charges regarding mishandling national security information. What serves the national security better? Dumping the lesser charges now, charges that could conceivably result in no prison time or disqualification from holding public office or, worse, acquittal? What if dumping the lesser charges now preserves the investigation and leads to far more serious charges later, charges that ultimately go to trial and result in more solid and substantially more severe convictions with very severe penalties?

    Even worse in my opinion would be a trial now that compromises our counterintelligence methods and measures. If a criminal trial now reveals to adversaries what our counterintelligence capabilities and limitations are, are we really better off with the immediate but fleeting gratification of seeing Hillary Clinton serve no prison time because her Vice President succeeded her under the 25th Amendment and then immediately gave her a Presidential pardon as Gerald Ford did for Richard Nixon?

    Presuming it is Hillary Clinton versus Donald Trump in the November general election, the voters have the ultimate say in which one is elected. The voters are the ultimate jury. Fully understanding that a disgusting number of people eligible to vote won’t, I nevertheless would rather have the decision about Hillary Clinton’s or Donald Trump’s presidency in the voters’ hand rather than in Congress’s.

    Comment by Bill — July 6, 2016 @ 7:21 pm

  3. I appreciate your logic and hypothetical situation. Here is mine.

    She is not worth the risk. It is like letting a convicted pedophile onto the street again with an FBI warning with hopes he/she behaves better in the future. However, if he/she doesn’t and hurts one more kid we have a better chance of putting him/her away for good. “I won’t do it again”, she says … just like the sick pedophile. How’s that for an analogy, comparing Crooked Hillary to a pedophile? I like it. 🙂 After all, the pedophile showed no intent, there was no clear evidence, just extremely reckless behavior (I won’t get graphic, but I am sure you get my point). That’s okay pedophile, you can go now, we want to watch and see if you are a really bad pedophile.

    How would a trial reveal counterintelligence methods and measures? That would not be available to the public, I assume, because it would be an an act of national security to keep the trial closed to the public.

    She is too dangerous to even be considered as our President. The FBI made a big mistake, as far as I am concerned. While the FBI Director was candid in his statement, the public would have been better served if he had presented his statement with other wording, citing the federal statues that were violated along with his “unclear evidence” but “extremely careless evidence” and then dumped it in the DOJ’s lap without recommending anything, but offering support on the DOJ’s ultimate decision.

    As a national security measure, much of the proceedings would not be available to the public anyway it she were to go to trial.

    The FBI and the DOJ were not strong enough if not corrupt.

    The fix is probably already in just like everything else, Hillary will be the next President but not mine, she is already cleaning house.

    Comment by Stebbijo — July 6, 2016 @ 8:41 pm

  4. The determination that a criminal trial could reveal counterintelligence methods, measures, capabilities, and limitations is one that the prosecution would have to make in evaluating the quality of the evidence it could present without risk of further harm to the national security. The FBI and DoJ has seen and evaluated the evidence, but we haven’t.

    It should be able to conduct a fair criminal trial involving national security evidence without further compromising the evidence. That assumes everyone involved who has the appropriate security clearances and accesses will play by the rules pertaining to the handling, storage, and communication of national security information. Ninety-four of our country’s Takata airbag US Senators assumed Hillary Clinton would play by those rules when they voted to confirm her as Obama’s chosen Secretary of State.

    Now that DoJ has closed the nearly year-long investigation into Hillary Clinton’s use of a personal email system during her time as Secretary of State and has apparently declined to bring criminal charges against any individuals within the scope of that investigation, Comey and Lynch should be able to reveal more information to Congress and the public about that particular investigation. Hopefully the revelations will be used productively to correct the harm she did rather than perpetuate it. Here’s one perfectly appropriate action Congress has already taken.

    Comment by Bill — July 7, 2016 @ 7:00 am

  5. If I heard FBI Director Comey correctly this morning, the FBI’s determination is that USC § 18-793(f) is invalid because Congress did not include an “intent” requirement in it. But I don’t understand what gives the FBI or DoJ the authority to decline to apply a statute because of an as-yet unchallenged perceived defect in it.

    It seems very unlikely that Hillary Clinton was serving as Secretary of State, a position with original classification authority, without being require to read, understand, and sign both SF-312 (in its 2009 format) and Form 4407. Both forms explicitly cite USC § 793 as one of the several statutes with which by her signature Clinton agreed to comply.

    “Lack of requisite intent” is the universal excuse lazy, politically motivated, or otherwise incompetent prosecutors can always fall back on to justify declining prosecution. Since the sufficiency of the evidence is within the discretion of the prosecutor to determine, it is rarely effectively challenged. It’s use is not limited to prosecutors in Fantasyland-on-the-Potomac.

    Happily, Rep. Jason Chaffetz seemed very willing this morning to seek a Congressional referral asking the FBI to investigate the degree to which Hillary Clinton lied to Congress. That investigation and charging decision should come without any of the complications associated with classified and compartmented national security information.

    Comment by Bill — July 7, 2016 @ 12:20 pm

  6. Happens all the time, even locally, they are lazy here, too. I get it …they want to be hand fed grapes before they get off their dead-@sses and actually work.

    I wish I could have watched it, so much better than reading the news, but interesting that the door is open on the interpretation of the statute, which is good, I guess. I read where the State Dept. has reopened their case on Hillary which is also not a bad thing, but I do not expect great things, better than nothing … nice that the American people at least get some crumbs with their flimsy safety net.

    Comment by Stebbijo — July 7, 2016 @ 7:23 pm

  7. Bill, it may be too early, but I would be interested in an analysis on on your preferred Presidential candidate, or will it be a write – in? 🙂

    Comment by Stebbijo — July 10, 2016 @ 2:44 pm

  8. Stebbijo,

    Let’s see what comes out of the two national rabidista party conventions. Regardless, I think the country is in big, big trouble.

    Comment by Bill — July 10, 2016 @ 3:19 pm

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