“Extreme Carelessness” Not Supported by the Undisputed Facts

by Lanny Davis – 7/15/16
Hillary Clinton has acknowledged, with the wisdom of hindsight, that she made a mistake in using one device for sending personal and business emails rather than using two when she was secretary of State, and in sending all of her emails to a private server.

I respect and agree with FBI Director James Comey’s conclusion, speaking on behalf of a unanimous team of FBI professionals, investigators and expert technologists, that there was no criminal conduct.

Almost all of the former prosecutors and experts with whom I have consulted agree with that conclusion, including a former inspector general of the National Security Agency.

So Republicans were left with the awkward position of calling a congressional hearing to attack an FBI director who was appointed by a Republican president, George W. Bush, to serve as a top prosecutor in New York and subsequently as deputy attorney general. And Donald Trump, the Republican Party’s standard-bearer? Surprise! He attacked the integrity of Comey and his entire team, declaring their investigation as “rigged” — similar to his racist attack on a federal judge’s integrity due to the judge’s heritage.

As to Comey’s characterization that Clinton’s handling of her official emails was “extremely careless,” I believe there are three undisputed facts that undermine his subjective characterization.

First, as Clinton repeatedly has stated over the last year, she never received or sent any email that was marked as classified. At Comey’s press conference on Tuesday, he appeared to contradict that claim, saying there were “very few” that had classified markings. But then at the congressional hearing on Thursday, he withdrew his claim. He said that three, out of more than 30,000, had a marking of a small “C” — something he said a classification expert would not regard as sufficient to know the document contained classified information.

Not surprisingly, the media on Tuesday and Wednesday hyped the fact that the FBI director had contradicted Clinton’s repeated assertions that she had never sent or received emails marked as classified, but then when Comey later withdrew that claim, the media barely covered the reversal.

Second, despite accusations by partisan Republicans to the contrary, there is no evidence — none — that the former secretary of State in fact compromised national security by using a private server. Both the FBI director and the State Department inspector general confirmed that. Comey’s statement that it is “possible” is pure speculation — questionable for the head of the FBI to use such a speculative word publicly.

He also did not point out at his press conference or during the hearing that using the State Department server, state.gov, was a known, definite risk; we know that the department server has been hacked multiple times by Chinese and Russian hackers.

Third, Comey used the expression “extreme carelessness” because he said Clinton “should have known” that more than 100 emails that were sent to her private server using nonsecure communications channels contained classified information, albeit without any classification markings. But what he did not say is that more than 300 State Department officials, including many longtime, nonpartisan career professionals and diplomats, also used the same nonclassified channels to send her these emails allegedly containing classified information. If over 300 State professionals and experts didn’t recognize classified information in the emails they sent to Clinton, and they used nonsecure channels to send them to her, then how can Clinton plausibly be accused, alone, of showing “extreme carelessness” because she “should have” known what 300-plus government professionals did not? I don’t think she can.

My respectful suggestion to the media and to fair, open-minded voters — I still believe there are a lot of those left — is that if you look at these indisputable facts, you will conclude that Clinton may have made mistakes, but certainly not at the level of “extreme carelessness.”

The subject of Clinton’s emails at State has now been closed — except by partisan Republicans, who are desperate to pound away on the subject so they don’t have to defend the racist, misogynistic and reckless statements of their own presumptive presidential nominee.

Now, I believe, the American people want both Clinton and Trump to give them specific solutions to address the serious problems facing the country at home and abroad. Clinton has been doing this week after week in detail. I seriously doubt that Trump has any intention of doing the same — or any ability to do so even if he wanted to.

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Davis is co-founder of the Washington law firm Davis Goldberg Galper PLLC, and Trident DMG, a strategic media firm specializing in crisis management. He served as special counsel to President Clinton from 1996 to 1998 and is a regular columnist for The Hill newspaper. He has been a friend of Hillary Clinton since they were students at Yale Law School together in 1969-70.

To read the column on The Hill, click here.