The collective media narrative is that FBI Director James Comey did severe political damage to Hillary Clinton in his public statements explaining why he and his investigators unanimously recommended against pursuing charges against the former Secretary of State. According to the media, his public statement on July 5th contradicted a number of Mrs. Clinton’s claims and he then provided hours of testimony on Capitol Hill two days later which made her look even worse.
The confluence of politics and the law is a tricky one - optics matter more in the former, facts in the latter. But what the media owes the public is accuracy and conflating Comey’s statements with the idea that Mrs. Clinton’s actions reinforce the belief she is untrustworthy is an editorial decision divorced from the facts in this case. Members of the media like to hide behind the idea that they are simply reporting on what polling or interviews with the public tell them, but this excuses their own responsibility for shaping that narrative.
Comey’s most sensational claim was that classified emails – that were classified at the time they were sent of received – were found on Clinton’s email server. This seemed to contradict Mrs. Clinton’s statement that she neither sent nor received classified email. Here is what Comey said:
From the group of 30,000 e-mails returned to the State Department, 110 e-mails in 52 e-mail chains have been determined by the owning agency to contain classified information at the time they were sent or received. Eight of those chains contained information that was Top Secret at the time they were sent; 36 chains contained Secret information at the time; and eight contained Confidential information, which is the lowest level of classification …
Separately, it is important to say something about the marking of classified information. Only a very small number of the e-mails containing classified information bore markings indicating the presence of classified information. But even if information is not marked “classified” in an e-mail, participants who know or should know that the subject matter is classified are still obligated to protect it.
Seems pretty scandalous right? But Comey was being a bit of a slippery lawyer. The “very small number” of email that were marked classified at the time turned out to be three – yes, three. Not three thousand, or three hundred, or even thirty, but three. In other words, one one-hundredth of one percent (.01%) of the roughly 30,000 email the FBI reviewed were marked as classified. It was not until two days later at Comey’s Congressional hearing, that we learned the rest of the story:
In short, contrary to State Department policy, which connotes an email’s classification in the header, here, the markings were buried somewhere in the email strings where they could have easily been missed. More importantly, it turned out these three email were improperly marked – a fact shared by the State Department within hours of Comey’s press conference.
So, none of the three email Comey mentioned in his press conference turned out to be classified. But what about the 110 emails that were classified at the time, of which eight were top secret? Again, the colloquy is helpful. None of those email bore markings showing they were classified. In other words, the State Department did not think these email were classified at the time, it was the FBI’s call after-the-fact. As Comey conceded, absent some notation in the heading of an email that the subject matter is classified, the recipient of the email could reasonably conclude it was not classified.
In any event, those eight email (out of 30,000) that were top secret? Seven had to do with drone strikes in countries where their leaders demand plausible deniability yet everyone knows attacks occur (e.g., Pakistan and Yemen). The other email was a run-of-the-mill description of a conversation with the President of Malawi. Yes, Malawi, a country few people even know exists and even fewer could find on a map.
In sum, the “small number” of email that bore classified markings were all in error and none of the other 110 email had markings. Of the eight (out of 30,000) supposedly “top secret” email, seven were on a subject widely reported on but kept secret solely to protect our allies and the eighth had notes on a conversation with a leader of a country no one has even heard of.
The other Comey statement getting a lot of attention is this one:
Secretary Clinton used several different servers and administrators of those servers during her four years at the State Department, and used numerous mobile devices to view and send e-mail on that personal domain.
This comment seems to contradict one by Secretary Clinton that she used only one device. But here’s the thing. Comey never explained what he meant by “numerous devices.” Apple now has a program that lets you upgrade your iPhone every year. Are you using “multiple devices” when you go from the iPhone 6 to the iPhone 7? It may be that Comey and Clinton are both telling the truth in that she perceived swapping out her phones as using “one device” and he interprets that same action as using “numerous devices.” Is this really grounds for a perjury investigation?
This was bad enough, but Comey layered his own opinions (a real no no for an investigator and something, as a former U.S. Attorney, he should know better than doing) and speculation. There were two particularly egregious examples:
Given that combination of factors, we assess it is possible that hostile actors gained access to Secretary Clinton’s personal e-mail account.
Here, he engages in rank speculation without any factual support, a cardinal sin that any first-year law student would know not to do.
Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.
This little nugget ended up being one of Comey’s most quoted lines, but aside from suffering from the same opinion testimony any good prosecutor would know to avoid, taken together with the context of the rest of his statement, it is also untrue. As Comey would later admit, none of the email he considered classified were designated as such at the time and without the markings, a person could infer they were not confidential. So how is it that Secretary Clinton was “extremely careless” when less than 1% of her email were classified (not that she would have known that, as per Comey’s own statement!) and the three (out of 30,000) that had markings turned out not be classified at all. It does not make sense and it also supports Hillary’s statement that she neither received nor sent classified information – the documents Comey said were classified at the time either bore no markings to show that they were or had markings, but turned out not be classified at all.
For Comey, this whole episode is a perfect illustration of why prosecutors typically do not make statements when charges are not filed. We are all entitled to the presumption of innocence and that right is even greater when a criminal investigation concludes without evidence sufficient to charge us with a crime. When a prosecutor decides instead to inject his own opinion it denigrates an innocent person’s reputation for reasons that have nothing to do with a legal determination of their guilt or innocence.
For reporters, this is another in a long litany of examples this campaign season where they went with the sizzle instead of the steak. All of the information I wrote about above was readily available to them if they were doing their jobs and putting this type of context into their stories. Instead, as is more and more common these days, they skipped right past the facts and ran right for the political angle that reinforced their preferred narrative.
Follow me on Twitter - @scarylawyerguy