During his July 7 testimony on Capitol Hill, FBI Director James Comey dismantled several right-wing media myths about Hillary Clinton’s use of a private email server while she served as secretary of state. In his testimony about the FBI’s recommendation against pursuing criminal charges, Comey debunked flawed comparisons and corrected faulty definitions that right-wing media have repeatedly pushed.
FBI Director James Comey Testifies On Capitol Hill Over Clinton Email Investigation
Comey Defends FBI Recommendation Against Criminal Charges In Capitol Hill Testimony. ABC News reported that on July 7, FBI Director James Comey testified in front of the House Committee on Oversight and Government Reform about “the probe into Hillary Clinton's use of a private email server.” ABC noted that in his testimony, “Comey strongly defended his recommendation that charges not be brought against Clinton or her aides for mishandling classified information while using a private email server as Secretary of State.” From the ABC News report:
FBI Director James Comey faced skeptical and angry congressional Republicans this morning in a hastily called hearing on Capitol Hill to question his findings in the probe into Hillary Clinton's use of a private email server.
Comey strongly defended his recommendation that charges not be brought against Clinton or her aides for mishandling classified information while using a private email server as Secretary of State.
“The decision was made and the recommendation was made the way you would want it to be: by people who didn’t give a hoot about politics, but who cared about what are the facts, what is the law and how have similar people – all people – been treated in the past,” Comey told the House panel. [ABC News, 7/7/16]
Comey Corrected At Least Five Examples Of Right-Wing Media Misinformation During His Testimony
Comey: “No Reasonable Prosecutor” Would Bring Charges Against Clinton “On Gross Negligence.” During the July 7 hearing, Comey explained that the Justice Department has “grave concerns about whether it's appropriate to prosecute somebody for gross negligence," nothing that those concerns are the reason the agency has done it only "once that I know of in a case involving espionage.” Comey added that “given that assessment of the facts, my understanding of the law, my conclusion was and remains: No reasonable prosecutor would bring this case. No reasonable prosecutor would bring the second case in 100 years focused on gross negligence.” From Comey’s testimony:
JAMES COMEY: There are two things that matter in a criminal investigation of a subject: What did the person do and, when they did that thing, what were they thinking. When you look at the 100 years plus of the Justice Department's investigation and prosecution of the mishandling of classified information, those two questions are, obviously, present. What did the person do, did they mishandle classified information? And when they did it, did they know they were doing something that was unlawful? That has been the characteristic of every charged criminal case involving the mishandling of classified information.
I'm happy to go through the cases in particular. In our system of law, there's a thing called mens rea. It's important to know what you did, but when you did it, this Latin phrase, mens rea, means what were you thinking? We don't want to put people in jail unless we prove that they knew they were doing something they shouldn't do. That is the characteristic of all the prosecutions involving mishandling of classified information.
There is a statute that was passed in 1917 that on its face makes it a crime, a felony for someone to engage in gross negligence. So that would appear to say, well, maybe in that circumstance you don't need to prove they knew they were doing something that was unlawful, maybe it's enough to prove that they were just really, really careless beyond a reasonable doubt. At the time Congress passed that statute in 1917, there was a lot of concern in the House and the Senate about whether that was going to violate the American tradition of requiring that before you're going to lock somebody up, you prove they knew they were doing something wrong. So there was a lot of concern about it. The statute was passed.
As best I can tell, the Department of Justice has used it once in the 99 years since, reflecting that same concern. I know from 30 years with the Department of Justice they have grave concerns about whether it's appropriate to prosecute somebody for gross negligence, which is why they have done it once that I know of in a case involving espionage. And so when I look the facts we gathered here, as I said, I see evidence of great carelessness, but I do not see evidence that is sufficient to establish that Secretary Clinton or those with whom she was corresponding both talked about classified information on email and knew when they did it they were doing something that was against the law. So given that assessment of the facts, my understanding of the law, my conclusion was and remains: No reasonable prosecutor would bring this case. No reasonable prosecutor would bring the second case in 100 years focused on gross negligence. And so I know that's been a source of some confusion for folks. That's just the way it is. I know the Department of Justice, I know no reasonable prosecutor would bring this case. I know a lot of my former friends are out there saying where they would. I wonder where they were the last 40 years, because I'd like to see the cases they brought on gross negligence. Nobody would, nobody did. So my judgment was the appropriate resolution of this case was not with a criminal prosecution. As I said, folks can disagree about that, but I hope they know that view -- not just my view, but of my team -- was honestly held, fairly investigated and communicated with unusual transparency because we know folks care about it. [House Oversight and Government Reform Committee hearing, 7/7/16]
Right-Wing Media Claimed Clinton Should Have Been Indicted For Being “Grossly Negligent” With Her Emails
National Review: According To Comey, Clinton “Acted With Gross Negligence,” And FBI Rewrote Federal Law To Let Her Off The Hook. National Review contributing editor Andrew McCarthy wrote that “there is no way of getting around” the fact that Clinton “acted with gross negligence” regarding her emails, adding, “Director Comey even conceded that former Secretary Clinton was ‘extremely careless’” in her actions (emphasis original):
There is no way of getting around this: According to Director James Comey (disclosure: a former colleague and longtime friend of mine), Hillary Clinton checked every box required for a felony violation of Section 793(f) of the federal penal code (Title 18): With lawful access to highly classified information she acted with gross negligence in removing and causing it to be removed it from its proper place of custody, and she transmitted it and caused it to be transmitted to others not authorized to have it, in patent violation of her trust. Director Comey even conceded that former Secretary Clinton was “extremely careless” and strongly suggested that her recklessness very likely led to communications (her own and those she corresponded with) being intercepted by foreign intelligence services.
Yet, Director Comey recommended against prosecution of the law violations he clearly found on the ground that there was no intent to harm the United States.
In essence, in order to give Mrs. Clinton a pass, the FBI rewrote the statute, inserting an intent element that Congress did not require. The added intent element, moreover, makes no sense: The point of having a statute that criminalizes gross negligence is to underscore that government officials have a special obligation to safeguard national defense secrets; when they fail to carry out that obligation due to gross negligence, they are guilty of serious wrongdoing. The lack of intent to harm our country is irrelevant. People never intend the bad things that happen due to gross negligence. [National Review, 7/5/16]
Rudy Giuliani: “The Minute You Say Someone Is Extremely Careless, You Are Saying They’re Grossly Negligent.” Frequent Fox guest Rudy Giuliani claimed that “the first definition of gross negligence” in the dictionary is “being extremely careless.” Giuliani added that “the minute you say someone is extremely careless,” as Comey did, “you are saying they’re grossly negligent.” From the June 5 edition of Fox News’ The Real Story:
KIMBERLY GUILFOYLE (HOST): Director Comey has decided not to -- or in fact is saying that no reasonable prosecutor would recommend that this case would go forward against Hillary Clinton. Your thoughts?
RUDY GIULIANI: My thoughts are that it would be unreasonable for a prosecutor not to go forward with it and almost an abdication of duty. What Elizabeth just laid under 18 USC section 793 is what we would call a no-brainer back in the U.S. attorney's office that Jim Comey belonged to, he was one of my assistants. It does not require intent, it just requires gross negligence. He said during his long statement that she was extremely careless. The first definition of gross negligence that comes up if you take out the legal dictionary is being extremely careless.
GUILFOYLE: Yeah, and that’s the problem. People at home want to know, what is this distinction, is it a distinction without a difference? Because a lot of people hear this -- we're both former prosecutors. Why wouldn't it go forward?
GIULIANI: The minute you say someone is extremely careless, you are saying they're grossly negligent. That is what a judge will charge a jury. The judge will charge a jury, has the government proven that she was extremely care -- what do we mean by gross negligence? We mean extremely careless. Regular negligence is not using the proper degree of care under the circumstances. Gross negligence is being extremely careless in exercising your responsibilities. That's what Jim Comey found. He then just didn't come to the conclusion that it's a violation of the statute. He came to the other conclusion. I think that's why he walked out, there's no way to square the two things. [Fox News, The Real Story, 7/6/15]
Fox’s Peter Johnson Jr.: Comey “Depict[ed], In My Mind, What Defines Gross Negligence.” Fox News contributor Peter Johnson Jr. stated that Comey “depict[ed], in my mind what defines gross negligence” when he outlined the FBI’s recommendation that Hillary Clinton not face criminal charges for her use of a private email server. From the July 5 edition of Fox News’ Outnumbered:
MELISSA FRANCIS (HOST): I mean at the top when he laid out the case of everything that she had done and her team had done there were more details, there was more damning evidence in there than what had even been reported.
PETER JOHNSON JR.: That is absolutely correct. And Hillary Clinton really should be down on her knees at this very moment thanking her creator for avoiding an indictment. She came within a hair of an indictment based upon what Mr. Comey said this morning at this press conference. He talked about potential violations of statutes, he talked about extreme carelessness, he talked about dozens if not 100 or more top secret, secret, and confidential, classified emails that were found. He talked about thousands of emails that were not turned over by Secretary Clinton, that were destroyed by her lawyers without even looking at them. So in the end the FBI director said well, as a matter of judgement, as a matter of discretion, based on the fact that there was no real sense of espionage or disloyalty, that charges would not be brought. But what the FBI director did based on this extreme carelessness statement, and based upon this cavalcade of missteps, whether intentional or not, depicted a secretary running a culture totally unlike any department in the United States of America, with a total disregard of keeping secrets. And secrets in the secretary of state’s office mean lives very, very often. So this was an extraordinary day; the FBI director parsing words very carefully. But at the same time depicting, in my mind, what defines gross negligence under the law and could have put Hillary Clinton with an FBI charge, and information, and then an indictment by a grand jury. Incredible, incredible. [Fox News, Outnumbered, 7/5/16]
Fox Host Gregg Jarrett: Clinton Appears To Be Guilty Of “Gross Negligence.” Fox host Gregg Jarrett claimed the phrase “extremely careless” “means something to lawyers and judges” since that phrase is how they describe “gross negligence.” From the July 5 edition of Fox News’ Happening Now:
JON SCOTT (HOST): The tone of his news statement early on was quite negative and we learned some things about Hillary Clinton's email use that were even more damning than what we had been led to believe to this point, and yet the FBI director sums it up by saying we cannot find a case that would support bringing criminal charges. Your reaction.
GREGG JARRETT: A lot of lawyers across America are really going to be puzzled and scratching their heads to make sense of what Director Comey said because he seemed to contradict himself and the law. He used the phrase seriously, or excuse me, “extremely careless” to describe Hillary Clinton's use of classified information on her private unauthorized email server. Well, that phrase means something to lawyers and judges. That is the phrase they use to explain what gross negligence is, and we can put the statute, the criminal statute up on the screen and I'll read, it's very short. 18 USC section 793-F, “whoever being entrusted with national security documents,” and that includes by the way classified information, “through gross negligence permits the same to be removed from its proper place of custody shall be fined under this title or imprisoned not more than 10 years, or both.” So the key phrase there is “gross negligence.” What is that? If you look up any standard jury instruction, or Black’s law dictionary for example, you’re going to find the definition of “gross negligence” is “extremely careless.” So the moment he said she was extremely careless, I think most lawyers probably thought well, he's obviously going to recommend criminal prosecution, and yet he did not. It's hard to understand. [Fox News, Happening Now, 7/5/16]
Fox’s Melissa Francis: “It Seemed Like He Was Saying We Have Found Gross Negligence.” Fox host Melissa Francis asked Fox chief intelligence correspondent Catherine Herridge if Comey’s use of the phrase “extremely careless” caught any attention when he announced that the FBI would not seek criminal charges in the case, since “it seemed like he was saying we have found gross negligence.” From the July 5 edition of Fox News’ Outnumbered:
MELISSA FRANCIS (HOST): Catherine, let me start with a quick question to you and then I’ll let some other folks get in on it. He said that she was extremely careless, and when you use that phrase in legal terms, immediately your ears perk up because that is the definition of gross negligence. So it seemed like he was saying we have found gross negligence, which under the statute, would bring charges. And then he concluded otherwise. I mean, did I hear that right? Is that what you were hearing along the way too?
CATHERINE HERRIDGE: Well, what he laid out was their findings which was they found evidence of a possible mishandling of classified information which would be under the gross negligence statute and a subsection that does not require intent. Practically speaking, having intent is always better in these cases because it is cleaner from a prosecutor's standpoint, and that this was the findings of 15 months of painstakingly, as he said, going back through the systems and trying to sort of reconstruct or re-engineer -- as he said, it was like a jigsaw puzzle where the border had been taken away and pieces had been thrown on the floor, and it was their job to put it back together. [Fox News, Outnumbered, 7/5/16]
Fox Guest Jay Sekulow: Clinton’s Actions That Comey Called “Extremely Careless [Are] Gross Negligence.” Frequent Fox guest Jay Sekulow claimed that “extremely careless is gross negligence,” and that it “frankly is absurd” that Comey did not recommend charges be filed. From the July 5 edition of Fox News’ The Real Story:
KIMBERLY GUILFOYLE (HOST): You just heard Rudy Giuliani weighing in on his analysis of what has transpired here. What is your take?
JAY SEKULOW: Well, I did the same thing that Rudy Giuliani did. I looked up the words “extremely careless” in the legal dictionaries and looked at the case law, and it became clear. Extremely careless is gross negligence. Gross negligence under the statute is a felony. So Jim Comey laid out -- and I have a lot of respect for Jim, but I'll tell you something -- the fix was in on this from the beginning. We saw the beginning of it last week when Bill Clinton entered Loretta Lynch's airplane. I have no idea what took place in there, maybe it was, get your wife in to get the testimony done, we're wrapping this thing up, because gross negligence is extreme carelessness, that is just fact. So the reality is, Jim Comey said there was a crime here, he just decided not to prosecute it. But he was clear, Kim, he said there was in fact, without any doubt, gross negligence, his wording, extreme carelessness, that is gross negligence under the law. That's a violation. That's a crime. This frankly is absurd and the American people have had one pulled on them. [Fox News, The Real Story, 7/5/16]
Comey: Petraeus Did Not Get “In Trouble For Far Less,” Than Clinton, “It Is The Reverse.” In his testimony, Comey noted the distinctions between Clinton’s case and the investigation into Gen. David Petraeus’ mishandling of classified information, saying Petraeus did not get “in trouble for far less,” and in fact, “it is the reverse.” Comey described the differences, saying Petraeus “knew what he was doing was violation of the law. Huge amounts of information that even if you couldn't prove he knew it, it raises inference he did it, and effort to obstruct justice. That combination of things makings it worthy of prosecution.” From the testimony:
REP. ELIJAH CUMMINGS (D-MD): What did General Petraeus mean when he said he intentionally shared, quote, “code word information” with her? What does that mean?
JAMES COMEY: The Petraeus case, to my mind, illustrates perfectly the kind of cases the Department of Justice is willing to prosecute. Even there they prosecuted him for a misdemeanor. In that case you had vast quantities of highly classified information, including special sensitive compartmented information. That’s the reference to codewords. Vast quantity of it, not only shared with someone without authority to have it, but we found it in a search warrant hidden under the insulation in his attic, and then he lied to us about it during the investigation. So you have obstruction of justice, you have intentional misconduct, and a vast quantity of information. He admitted he knew that was the wrong thing to do. That is a perfect illustration the kind of cases get prosecuted. In my mind it illustrates importantly the distinction to this case.
CUMMINGS: Here is what the department filing said about General Petraeus, and I quote. “The acts taken by defendantDavid Howell Petraeus were in all respects knowing and deliberate, and were not committed by mistake, accident, or other innocent reason,” end of quote. Is that an accurate summary in your view, Director Comey?
CUMMINGS: So the question is, do you agree with the claim that General Petraeus, and I quote, “got in trouble for far less,” end of quote? Do you agree with that statement?
COMEY: No. It’s the reverse.
CUMMINGS: And what do you mean by that?
COMEY: His conduct to me illustrates the categories of behavior that mark the prosecutions that are actually brought. Clearly intentional conduct. Knew what he was doing was violation of the law. Huge amounts of information that even if you couldn't prove he knew it, it raises inference that he did it. An effort to obstruct justice. That combination of things makes it worthy of a prosecution. A misdemeanor prosecution but a prosecution nonetheless. [House Oversight and Government Reform Committee hearing, 7/7/16]
Right-Wing Media Have Repeatedly Compared Clinton’s Case To General Petraeus’ Mishandling Of Confidential Information
Fox’s Jon Scott Compared Clinton Case To Petraeus Case, Asking, “Is There No Parallel Here?” Fox host Jon Scott asked Fox’s Bret Baier whether there was a “parallel” between the Clinton email case and the case surrounding Gen. David Petraeus, former director of the CIA, noting that Petraeus was “originally charged with a felony.” Baier used the opportunity to speculate about the “political timing of this.” From the July 5 edition of Fox News’ Happening Now:
JON SCOTT (CO-HOST): It is certainly not something that she's going to be putting on her campaign brochure as part of her qualifications. I'm sure the Clinton campaign will try to distract people from it, say look, the FBI found nothing, and there's Hillary Clinton right now appearing live at a campaign appearance. We don't expect her to address this announcement from the FBI director, but she is out on the campaign trail right now. I'm curious, Brett, when the FBI director started to talk about past cases where they've looked at mishandling of classified information, one of those involves Gen. David Petraeus, war hero, head of the CIA, gave his personal diaries that had some classified information on them apparently to his biographer and he was originally charged with a felony. Eventually that was brought down. He pled down to a misdemeanor is my recollection. But is there no parallel here?
BRET BAIER: I think it really came down to what General Petraeus told the FBI along the way talking about that specific investigation, and I think that's where the difference was. it's interesting and just the political timing of this. It comes obviously after the Bill Clinton Loretta Lynch meeting, we talked a lot about that. Then you have -- it’s coming on the same day President Obama is campaigning for Hillary Clinton in North Carolina, so the image is just not that great to begin with, but it's also that if you look into exactly what James Comey said, it is not flattering and it really goes up against what Hillary Clinton has been saying about this from the beginning. That said, the bottom line is that she likely is not going to face any charges, because the prosecution, the prosecutors at the DOJ are going to go along with the FBI, and we heard that from Loretta Lynch in defending that Clinton meeting on the tarmac. [Fox News, Happening Now, 7/5/16]
Fox’s Meghan McCain: "If You're Conservative,” “A General,” Or “Not In Line With The Obama Administration, You’ll Go To Jail.” Fox host Meghan McCain praised Donald Trump’s comparison of the Clinton email case to charges brought against Petraeus (“General Petraeus got in trouble for far less,” he tweeted), saying that “if you're a conservative, if you’re a general, if you’re someone that’s not in line with the Obama administration, you’ll go to jail, or you’ll lose your job,” but “if you’re Hillary Clinton, she can do whatever she wants.” From the July 5 edition of Fox News’ Outnumbered:
MEGHAN MCCAIN (CO-HOST): It feels like a really sad day for democracy in a lot of different ways. People are so jaded right now, especially young millennials after the end of Bernie Sanders’ campaign. And it’s hard enough to sell why young people should be involved in politics and feel inspired when if you have enough money, if you’re powerful enough, if you have the right husband, you can do a lot of illegal stuff, and you’re not going to get charged. And I actually think Donald Trump's tweet talking about General Petraeus completely showcases the great juxtaposition between if you're a conservative, if you’re a general, if you’re someone that’s not in line with the Obama administration, you’ll go to jail, or you’ll lose your job. But if you’re Hillary Clinton, she can do whatever she wants. That’s what’s scary about this. She can do literally whatever she wants and she’s going to get away with it. [Fox News, Outnumbered, 7/5/16]
Rush Limbaugh Claimed Petraeus “Was Charged With The Crimes That Hillary Clinton Could Have Been Charged With.” Conservative radio host Rush Limbaugh claimed that the “Obama administration … pursued and went after Petraeus” and charged him “with the crimes that Hillary Clinton could have been charged with.” From the July 5 edition of Premiere Radio Networks’ The Rush Limbaugh Show:
RUSH LIMBAUGH (HOST): And, remember, Petraeus was actually charged with the crimes that Hillary could have been charged with. He revealed classified data to his biographer/mistress. Writing a book on him, she gave him, or he gave her classified information, passed it along, and it was the regime, it was the Obama administration, which pursued and went after Petraeus and basically took him out. He was somebody at one time being talked about as a potential Republican presidential or vice presidential candidate, but they took care of him. Petraeus’ reputation’s gone, and it’s no better than the guy who did the video that did not incite the protests and the violence in Benghazi. [Premiere Radio Networks, The Rush Limbaugh Show, 7/5/16]
Comey: Unlike Clinton, John Deutch Had Large Amounts Of Documents And Intent, While Obstructing Justice
Comey: Unlike Clinton Case, Deutch Case Has “Clear Intent, Huge Amounts Of Documents, [And] Obstruction Of Justice.” Comey dismantled a comparison made between Hillary Clinton’s case and that of former CIA Director John Deutch -- who was pardoned in 2001 for using an unsecured CIA computer at his home to improperly access classified material -- saying that in the Deutch case “you have clear intent, huge amounts of documents, obstruction of justice,” unlike Clinton’s, which is why “no reasonable prosecutor would bring” charges in her case. From the testimony:
REP. STEPHEN LYNCH (D-MA): We have a lot of comparisons in other cases and it seems like all the cases where prosecutions have gone forward, the subject of the investigation has demonstrated a clear intent to deliver classified information to a person or persons who were unauthorized to receive that. So if you look at the PFC Bradley Manning, now Chelsea Manning, that was a court-martial but he demonstrated a clear intent to publish that information, which was classified. Julian Assange, the Wikileaks editor I guess, published, again a wide and deliberate attempt to publish classified information. General Petraeus, which we talked about earlier today shared information with his biographer. Jeffrey Sterling sending stuff to The New York Times. The former CIA officer Kiriakou, who was interested in writing a book, so he hung onto his information. And even former Director of the CIA John Deutch, who retained classified information on a couple of servers, one in Belmont, Massachusetts, and one in Bethesda, Maryland, and that was after he became a private citizen. So in all those cases, there's a clear intent as you said before you look at what people did and what they were thinking when they did that. And I would just ask you, is there a clear distinction between what those people did and what Secretary Clinton did in her case?
JAMES COMEY: In my view, yes. The Deutch case illustrates itperfectly. He took a huge amount of documents, almost all of the TSSCI level, has in a hard copy at his house, had them on unclassed system connected to the internet, attempted to destroy some of them when he got caught, admitted I knew I wasn't supposed to be doing this. So you have clear intent, huge amounts of documents, obstruction of justice. Those are the kind of cases that get prosecuted. I meant it when I said, in my experience which is three decades, no reasonable prosecutor would bring this case. I know that frustrates people but that’s the way the law is and that’s the way the practices of the Department of Justice. [House Oversight and Government Reform Committee hearing, 7/7/16]
Right-Wing Media Claimed Clinton Should Have Been Prosecuted By Comparing Her Case To Deutch’s
National Review Likened Clinton's Email Use To Deutch's Access Of “Classified Material On Unsecured Home Computers.” National Review likened Clinton's email use to Deutch's case, writing, “Perhaps [Clinton has] forgotten” the “presidential pardon to former CIA director John Deutch” for “keeping classified material on unsecured home computers”:
Former secretary of state Hillary Clinton insists she did nothing wrong by running all of her government communications, including classified material, through her unsecured, home-brewed computer server. Perhaps she's forgotten one of her husband's final acts in the Oval Office: issuing a presidential pardon to former CIA director John Deutch.
Deutch's offense? Keeping classified material on unsecured home computers. [National Review, 8/21/15]
Fox's Dana Perino Likened Clinton To Deutch Because “He Had Classified Information On His Home Server.” Fox host Dana Perino compared Clinton to Deutch and insinuated she should be convicted of a crime just as Deutch nearly was. From the August 21, 2015, edition of Fox News' The Five:
DANA PERINO (CO-HOST): But why would her husband -- Jedediah, Bill Clinton, as president, had to actually pardon John Deutch from the CIA. Why? Because he had classified information on his home server.
JEDEDIAH BILA (CO-HOST): That's exactly right.
PERINO: Why do you pardon somebody? You don't pardon them for burping at the table. You pardon them because they were going to be convicted of a crime. [Fox News, The Five, 8/21/15]
Fox’s Marc Thiessen: Deutch Case Represents An “Ominous Precedent For Hillary Clinton.” Washington Post columnist and Fox News contributor Marc Thiessen wrote that Deutch's case represents an “ominous precedent for Hillary Clinton,” asserting, “The parallels between the Deutch and Clinton cases suggest that come January 2017, instead of planning her presidential transition, Clinton may find herself lobbying for a last-minute pardon of her own.” From his August 24 Washington Post column:
Former CIA director John Deutch was also found to have stored classified documents -- including top-secret intelligence -- on computers in his homes in Bethesda and Belmont, Mass., leading to an investigation by the CIA inspector general and a criminal investigation by the Justice Department. Deutch was stripped of his security clearance and ended up reaching a plea agreement admitting to his crimes -- but was saved by a last-minute pardon from none other than . . . President Bill Clinton.
The parallels between the Deutch and Clinton cases suggest that come January 2017, instead of planning her presidential transition, Clinton may find herself lobbying for a last-minute pardon of her own.
Another parallel with Clinton: The inspector general found that Deutch had used the same unclassified computers to process both classified information and conduct personal business, which made the “classified information residing on Deutch's computers . . . vulnerable to possible electronic access and exploitation.” [The Washington Post, 8/24/15]
WSJ's Mary Kissel: Deutch Was “Held To Account For Less” Than Clinton's Actions. Mary Kissel, a member of The Wall Street Journal’s editorial board, claimed Deutch was “held to account for less than” Clinton's use of a personal email. From the August 23 edition of Fox News' Sunday Morning Futures:
ALAN COLMES: There's a server in the State Department, state.gov, which is also not secured. There's secure and non-secure within State.
COLMES: The same issues could appear if you were using a State Department server. We've seen hacking at the Pentagon. She might have been safer on a private server.
MARY KISSEL: Well, David Petraeus and John Deutch and Sandy Berger were held to account for less than this.
COLMES: She didn't put stuff in a sock and sneak it out of a room like Sandy Berger.
KISSEL: This is worse. [Fox News, Sunday Morning Futures, 8/23/15]
Comey: The Facts In Nishimura's Case Are “Very Different” Than In Clinton's. In his testimony, Comey rejected Rep. Scott DesJarlais' (R-TN) argument that Brian Nishimura's case and Clinton's case were “very similar” and that they related to the same statute. Comey responded by noting that Nishimura was punished under a misdemeanor statute and that the facts of his case were “very different.” From the testimony:
REP. DESJARLAIS (R-TN ): In the last minute, director, I want to talk little bit about precedent. Because I think my colleague Trey Gowdy made a great point, that there still is really no precedence in terms of punishment for this type of behavior. Are you familiar with Brian Nishimura's case?
JAMES COMEY: Yes.
DESJARLAIS: He's a naval reservist for those who don't know, and he was prosecuted. What is the difference between his case and Hillary Clinton's case in terms of extremely carelessness and gross negligence? Because we're dealing with statute 793 section F where it does not require intent, is that correct?
COMEY: I'm sorry, 793-F is the gross negligence standard.
DESJARLAIS: Right, and is that why Brian Nishimura was punished?
COMEY: No. Nishimura was prosecuted under the misdemeanor statute, 1924, on facts that are very different. If you want me to go through them, I'll go through them. But very different than this.
DESJARLAIS: OK. I think that there's been a review of this case and they're very similar and that's why people feel that there's a double standard.
COMEY: What they're reading in the media is not a complete accounting of the facts in that case. [House Oversight and Government Reform Committee hearing, 7/7/16]
Right-Wing Media Have Repeatedly Compared Clinton’s Case To Nishimura’s
Fox’s Bill Hemmer: “What In The World Is The Difference” Between Clinton's And Nishimura’s Cases? Fox News host Bill Hemmer asked what "in the world is the difference” between Clinton and Nishimura’s cases. From the July 6 edition of Fox News’ America’s Newsroom:
BILL HEMMER (CO-HOST): You ever hear of Bryan Nishimura, age 50?
ALBERTO GONZALES: I’m aware of his case.
HEMMER: A year ago this month, in fact, age 50, pled guilty on unauthorized removal and retention of classified materials. They found classified materials in his house. She had a private server in her home. Please explain to our audience what in the world is the difference. [Fox News, America’s Newsroom, 7/6/16]
Fox’s Steve Doocy: “Like Hillary Clinton, The FBI Investigation Did Not Reveal Evidence That [Nishimura] Intended To Distribute” Classified Information. Fox & Friends co-host Steve Doocy compared Clinton’s email use to Nishimura’s mishandling of classified information, saying, “Like Hillary Clinton, the FBI investigation did not reveal evidence that he intended to distribute to unauthorized personnel and yet that man was sentenced to two years probation.” From the July 6 edition of Fox News’ Fox & Friends:
STEVE DOOCY (CO-HOST): Well, how about this? Here’s the case the federal government brought against a Naval reservist last year, a guy by the name of Bryan Nishimura. He admitted handling classified materials. He was in Afghanistan in 2007 through 2008. Apparently he had some stuff on one of his laptops. Like Hillary Clinton, the FBI investigation did not reveal evidence that he intended to distribute to unauthorized personnel, and yet that man was sentenced to two years probation, he was fined $7,500, and ordered to surrender any currently held security clearance. [Fox News, Fox & Friends, 7/6/16]
Townhall’s Matt Vespa: Nishimura Was “Convicted For Mishandling Classified Material” And “Acting Just Like Clinton Did With Her Email Usage.” Townhall contributor Matt Vespa claimed that “other people,” including Nishimura “have been convicted for mishandling classified material for acting just like Clinton did with her email usage.” From the July 5 Townhall post:
You don’t need intent to violate the gross negligence statute. Moreover, other people have been convicted for mishandling classified material for acting just like Clinton did with her email usage.
In 2015, Navy reservist Bryan Nishimura downloaded classified information onto electronic devices during his deployment in Afghanistan in 2007 and 2008. [Townhall.com, 7/5/16]
National Review Editorial: Charges Have Been Brought “Against Persons Accused Of Much Less” Than Clinton, Including Nishimura. A National Review editorial claimed that “‘reasonable prosecutors’ have brought charges against persons accused of much less” than Clinton, including Nishimura. From a July 5 National Review editorial:
Notably, though, “reasonable prosecutors” have brought charges against persons accused of much less. U.S. Navy officer Kristian Saucier faces ten years in prison for taking pictures of the engine room of his submarine with his cell phone. Bryan Nishimura, a naval reservist who served in Afghanistan from 2007 to 2008, was fined and given two years of probation for downloading classified military information to his personal device and taking it back to his California home. [National Review, 7/5/16]
Comey: Guccifer “Admitted That” His Claim That He Hacked Into Clinton’s Server “Was A Lie.” In the testimony, Comey acknowledged that the hacker known as Guccifer “admitted that [it] was a lie” that he hacked into Clinton’s private server. From the testimony:
REP. BLAKE FARENTHOLD (R-TX): During your investigation, did you or anyone in the FBI interview the hacker, Guccifer?
JAMES COMEY: Yes.
FARENTHOLD: And he claimed he gained access to Sid Blumenthal's email account and traced him back to Clinton's private server. Can you confirm that Guccifer never gained access to her server?
COMEY: Yeah, he did not. He admitted that was a lie. [House Oversight and Government Reform Committee hearing, 7/7/16]
Right-Wing Media Have Repeatedly Hyped Guccifer’s Claims
Fox’s Eric Bolling: Clinton’s Server “Was Getting Hacked Repeatedly By Guccifer.” Fox host Eric Bolling hyped Guccifer’s baseless claims, saying that Clinton’s server “was getting hacked repeatedly by Guccifer.” From the May 5 edition of Fox News’ The Five:
ERIC BOLLING (CO-HOST): She left the top-secret information on a server that was getting hacked repeatedly by Guccifer. And by the way, you're right, he is up for trial. We may have only 10 percent of what he actually did, so he doesn't want to get anymore trouble. [Fox News, The Five, 5/5/16, via Nexis]
Laura Ingraham: “I Have This Spidey Sense” That Guccifer “Not Only Got Into Her Server, But There Are A Lot Of Documents That He Gained Access To.” Conservative radio host and Fox News contributor Laura Ingraham baselessly speculated that “this Guccifer guy not only got into her server, but” also “gained access” to “a lot of documents.” From the May 26 edition of Courtside Entertainment Group’s The Laura Ingraham Show:
LAURA INGRAHAM (HOST): Don’t you all have the feeling that this Guccifer guy not only got into her server, but there are a lot of documents that he gained access to? And who knows? Some of these documents could be among the 22 emails that were not released to the public. I don’t know. I have this spidey sense about this Guccifer, what he got and what he didn’t get. [Courtside Entertainment Group, The Laura Ingraham Show, 5/26/16]