…in any bureaucratic organization there will be two kinds of people. First, there will be those who are devoted to the goals of the organization. … Secondly, there will be those dedicated to the organization itself. … The Iron Law states that in every case the second group will gain and keep control of the organization. It will write the rules, and control promotions within the organization.
— Jerry Pournelle’s Iron Law of Bureaucracy
James Comey’s new book doesn’t show him to be a political partisan. It shows him to be a shining example of Jerry Pournelle’s Iron Law of Bureaucracy: a man who cared more about the reputation of the institution he headed than he cared about the principles of justice for which it stands.
Why read this review? After all, there have been many reviews of, and articles about, James Comey’s new book. You may be tired of the topic. Based on what I’ve read, I am too. Because all we hear is he said about Donald Trump, because Donald Trump means eyeballs and clicks. We hear nonsensical conspiracy theories from those out to smear him at all costs (“HE WAS BLACKMAILING DONALD TRUMP!!!1!”), or uncritical praise from those looking to hold him up as a hero of the “Resistance.” It’s partisan noise.
I have something different to say because I don’t fall into one of these two categories. I’m just a normal person with a demanding day job, who didn’t get an advance copy and took three days to read it. So if you’re interested in a non-partisan’s take, read on.
I’m someone who agrees with Comey that Donald Trump is morally unfit for office. I tend to like Comey and (for the most part) find the universal disdain for him and his book befuddling. But this post constitutes a harsh criticism of Comey, because it’s the thing that has most bothered me about him — and it’s the part of the book that I found most jarring. It’s his inexplicable decision to let Hillary Clinton off the hook. And to my way of thinking, Comey just keeps digging that hole deeper in his book. To me, nothing demonstrates his elevation of the FBI’s reputation over equal justice under the law like his mishandling of the Hillary investigation.
While I can’t take the time and space to revisit the entirety of the Hillary email investigation, I think it’s worth spending some time on the central issue — in particular because a lot of inaccurate things have been written about it.
Comey in his book makes it clear that the central issue, for him, was Hillary’s “intent” in setting up a private system for communication concerning job-related information, including classified information:
Our investigation required us to answer two questions. The first question was whether classified documents were moved outside of classified systems or whether classified topics were discussed outside of a classified system. If so, the second question was what the subject of the investigation was thinking when she mishandled that classified information.
. . . .
In Secretary Clinton’s case, the answer to the first question—was classified information mishandled?—was obviously “yes.” In all, there were thirty-six email chains that discussed topics that were classified as “Secret” at the time. Eight times in those thousands of email exchanges across four years, Clinton and her team talked about topics designated as “Top Secret,” sometimes cryptically, sometimes obviously. They didn’t send each other classified documents, but that didn’t matter. Even though the people involved in the emails all had appropriate clearances and a need to know, anyone who had ever been granted a security clearance should have known that talking about top-secret information on an unclassified system was a breach of rules governing classified materials. Although just a small slice of Clinton’s emails, those exchanges on top-secret topics were, by all appearances, improper. Put another way, there were thirty-six email chains about topics that could cause “serious” damage to national security and eight that could be expected to cause “exceptionally grave” damage to the security of the United States if released. The heart of the case, then, was the second question: What was she thinking when she did this? Was it sloppy or was there criminal intent? Could we prove that she knew she was doing something she shouldn’t be doing?
Here’s the thing: that’s not the way the statute reads. The relevant statute is 18 U.S.C. § 793(f):
(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—
Shall be fined under this title or imprisoned not more than ten years, or both.
Comey admits that the information was removed from its proper place of custody. So her state of mind was indeed the only issue. But Comey misdescribes the required state of mind under the law. The issue is not whether she was “sloppy” (meaning no filing) or whether she had “criminal intent” (meaning a filing). The issue is whether she acted “through gross negligence…or having knowledge” (meaning a filing) or not (meaning no filing).
And, damningly, we know that the FBI itself initially considered her actions to be grossly negligent, but FBI agent Peter Strzok changed the wording to “extremely careless” in an apparent attempt to obscure the similarity between their view of her actions and the statutory language. And Comey went along with it:
Her actions in regard to her emails seemed really sloppy to us, more than ordinary carelessness. At one point the draft used the term “grossly negligent,” and also explained that in this case those words should not be interpreted the way a hundred-year-old criminal statute used the term. One part of that 1917 law made it a felony if a person “through gross negligence permits [classified material] to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed.”
The history of that provision strongly indicated that Congress in 1917 meant the statute to apply only to conduct that was very close to willful—that is, driven by bad intent—and members of Congress who voted for it back then were very concerned that they not make merely careless behavior a felony. I was told that the Department of Justice had only charged one person under this statute since 1917—a corrupt FBI agent whose conduct was far worse than gross negligence—and no one had ever been convicted under it. This context strongly reinforced my sense that the statute simply did not apply in the Clinton email case and made use of the term “grossly negligent” inappropriate and potentially confusing, given the old statute. So I directed our team to consider other terms that more accurately captured her behavior. After looking at multiple drafts, I settled on “extremely careless” as the best way to describe the conduct.
If Comey had been trying to damage the reputation of the FBI, I can think of few ways better than to describe a presidential candidate’s actions in a manner that directly tracks with the language of a criminal statute, and then authorizing a change in that language for the express purpose of making it read differently from the language of the statute.
Comey makes matters worse by claiming that one of the few regrets he has about the handling of the investigation is using the phrase “extremely careless.” Why? Because it sounds so much like “grossly negligent” — meaning it made Hillary sound guilty.
Hindsight is always helpful, and if I had to do it over again, I would do some things differently. . . . More important, I would have tried to find a better way to describe Secretary Clinton’s conduct than “extremely careless.” Republicans jumped on the old statute making it a felony to handle classified information in a “grossly negligent” way — a statute that Justice would never use in this case. But my use of “extremely careless” naturally sounded to many ears like the statutory language -– ‘grossly negligent’ –- even though thoughtful lawyers could see why it wasn’t the same.
What other language could he have used that would have both accurately described Clinton’s conduct — but would not have made her conduct sound like it fit within the statute? Comey offers no alternative, and the plain truth is, there is none. Because, no matter how you word it, Clinton’s behavior was grossly negligent. Use any phrase you like. It doesn’t change the facts.
And some “thoughtful” lawyers think Comey rewrote the statute. Andrew C. McCarthy made the case very effectively in a piece titled FBI Rewrites Federal Law to Let Hillary Off the Hook. Quote:
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.
By the way, Comey is just wrong that only one person had been charged with gross negligence in handling classified information since 1917. Andrew C. McCarthy has shown that the gross negligence standard has been used in military prosecutions. And in Fortune Magazine, Roger Parloff discusses two such cases of people being charged in the past on a gross negligence theory:
United States v. Rickie L. Roller: In 1989, a Marine Corps sergeant was working in a secured area where he habitually, and lawfully, placed classified material in his desk. After some nasty run-ins with his superior, he was transferred. On his last day, packing his office, he threw a bunch of personal effects from his desk into a gym bag including, as it happens, several classified documents, some of which were Top Secret. A few weeks later, he discovered the classified materials. Fearing reprimand, he hid them in his garage. He planned, he later testified, to destroy them when he got to his next duty station. When he did move to the new location, however, the professional movers helping him came across the classified documents. They notified the authorities. After a search, the remaining documents were found. Roller was sentenced to five years, which was commuted to 10 months confinement.
United States v. Arthur E. Gonzalez: In February 1979, an Air Force staff sergeant took a trip to visit an oil worker friend in Prudhoe Bay, Alaska. When he arrived, he discovered that he’d inadvertently intermingled two Top Secret messages with some personal mail he’d taken. He put the documents in a desk drawer in his friend’s room, intending to pick them up when he returned to his squadron. When he departed on February 25, however, he forgot the documents, leaving them in the desk. Gonzalez’s friend shared the room with another oil worker, with each occupying it on alternate weeks. In early March, the other oil worker discovered the documents, gave it to his oil company supervisor, who gave it to the Air Force authorities. Gonzalez was sentenced to five months confinement, which was commuted to 43 days.
Parloff claims: “Neither case closely resembles Clinton’s situation. In each instance, the perpetrator at some point realized that classified materials had been removed from a secure location and taken to an insecure one, and then failed to act promptly to report or fix the problem. The FBI researchers seemed to believe that Clinton and her colleagues never came to such a realization, even if they should have.” This is laughable on several levels. How could Clinton possibly think that the material on a private server is a “secure” location? Not even Comey tries to make this argument. As we have seen, Comey acknowledges that classified information was mishandled, and that “anyone who had ever been granted a security clearance should have known that talking about top-secret information on an unclassified system was a breach of rules governing classified materials.”
Even if intent were the standard, there was evidence to support it. In previous accounts, Comey always tried to distinguish other cases by pointing to attempts by those defendants to cover up what they had done, such as lying to investigators or taking other actions showing a guilty conscience. But there was evidence that Hillary knew she wasn’t supposed to do what she was doing, and there was evidence that she wasn’t truthful — all evidence Comey doesn’t discuss in his book.
For example, the Washington Post has reported: “A note sent to all State Department employees on Clinton’s behalf warned them against the risks of using personal email addresses for official business.” Clinton claimed not to remember this, but when you’re warning people not to engage in a particular pattern of behavior while engaged in that pattern of behavior yourself, it tends to support a notion that you know that what you are doing is wrong.
And Clinton said some laughable things during her FBI interview. I’ll cite one howler as an example: As NBC News reported on September 3, 2016:
Clinton also told FBI investigators that she wasn’t sure what the “c” meant next to paragraphs in one email that was used to designate confidential information.
This is laughable. But don’t take my word for it. Here is an excerpt from a contemporaneous podcast called Rational Security. The people on the podcast are Brookings Institute types. They’re not really big Hillary Clinton fans, but they are absolutely disdainful of Donald Trump, one and all. So when you hear this opinion, you know you’re not hearing from Trump partisans. Start listening beginning at 28:51, where Shane Harris, a Washington Post reporter, discusses Hillary’s answer that the “c” was possibly just one in a series:
SHANE HARRIS: For instance, there was a moment in the 302 that revealed that she was asked, she was shown an email that had the C, the letter C, next to it, indicating a classified, you know, passage, and they said “Well what did,” essentially “What did you think that this meant?”
SUSAN HENNESSEY: Indicating a confidential passage —
SHANE HARRIS: Confidential, right, confidential goes under the heading of classified, yes, confidential in that case, and she said, “Well, I don’t know. It could have been like C as in a sequence. A, B, C.” That is absolutely ridiculous, and at a press conference she would have been — I mean there would have been cackles in the audience when she said that. You could have followed up on it. You could say: “How in the world could you think that? How could you stand here and think we would believe that you, as the Secretary of State, thought that stood for like the letter C as in Part 3?”
But if you read Comey’s book, it’s clear that he didn’t make these decisions for partisan reasons, as much as partisans would like to claim that. He had no love for Hillary Clinton. He had a love for the FBI as an institution, and he spends pages and pages praising the institution and talking about how he was trying to protect it. It’s clear that the paramount thing in his mind was the organization. And it got to the point where protecting the organization outweighed the simple task of justice: deciding whether one person’s conduct had violated a statute.
Here’s what I said about all this in July 2016:
One rule for the little guy, another for the Important People.
I’m still confused about how deliberately setting up a private system for communication, including routinely sending and receiving classified information up to and including top secret information, is not “intent” to move that information from its proper place of custody. I’m also baffled as to when gross negligence was written out of the statute, or how “extremely careless” is different from being grossly negligent.
Ultimately, Comey’s inaction is the criminal referral analogue to John Roberts’s decision upholding ObamaCare. Someone with a reputation as a good guy had a failure of nerve when it mattered most, and elevated their judgment about the practical consequences to their institution over the rule of law. Weak people act differently when their actions are the subject of intense public scrutiny. They cave, and find ways to rationalize actions that minimize criticism rather than vindicate principles.
I think a central question in any job interview should be: when have you ever taken a large risk or sacrificed something for a principle?
But then, people like that don’t tend to rise to the top.
I now think that assessment is little unfair when used to describe Comey’s entire career. I do think there are times he stuck his neck out for principle. He can be a bit santimonious about that. But he still did it — something I can’t imagine, say, Donald Trump doing.
But as to the Hillary email investigation, I still feel the same way as I did in July 2016. At the risk of patting myself on the back, I think I hit the nail on the head in particular with the phrase about how Roberts and Comey both “elevated their judgment about the practical consequences to their institution over the rule of law.”
And what is most maddening about Comey’s book is the way that he portrays himself as the guy who rises about politics — which he arguably did — while being completely blind to the way that he failed to rise above an excessive concern for the reputation of his institution. Comey, like Roberts before him, worried so much about what people would say about the institution he headed that he failed to set aside all outside concerns and judge the case on its own merits.
But these men are hardly unique in doing so. As much as they rationalize their actions with easily rebutted attempts at reasoning, they are ultimately putting the organization first, and the principles of the organization second.
And that’s so common that there’s a Law to describe it. An Iron Law.