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Senate probes why Comey exonerated Hillary

Former FBI Director James Comey testifies before a House committee Sept. 28, 2016.

The chairman of the Senate Judiciary Committee, Sen. Charles Grassley, R-Iowa, wants to know why the FBI softened its determination that Hillary Clinton was “grossly negligent” in her handling of secret emails, changing the language to “extremely careless” months before Director James Comey announced Clinton would not be referred for prosecution.

In a letter to current FBI Director Christopher Wray, Grassley asks for a draft of the original May 2 memo and details about who made the edits and why they were made.

Sen. Charles Grassley, R-Iowa

“Although Director Comey’s original version of his statement acknowledged that Secretary Clinton had violated the statute prohibiting gross negligence in the handling of classified information, he nonetheless exonerated her in that early, May 2nd draft statement anyway, arguing that this part of the statute should not be enforced,” the senator writes.

Clinton violated State Department standards by using several nonsecure, home-brew email servers to conduct her official government business as secretary of state. In his July 5, 2016, announcement, then-FBI director James Comey said the bureau’s investigation found that of 30,000 emails Clinton handed over to the State Department, 110 contained information that was classified at the time she sent or received them. A few, Comey said, bore markings that identified them as classified. The bureau also discovered “several thousand” work-related emails that Clinton had not turned over to the State Department – three of those emails contained classified information. And Comey said it was “possible” that hostile foreign governments had gained access to Clinton’s personal account, noting she also regularly used her mobile device on foreign trips, including “in the territory of sophisticated adversaries.”

Comey, nevertheless, told the nation he would not refer charges to the Justice Department.

The finding conflicted with Clinton’s repeated assertions that none of the emails were classified at the time she sent or received them.

In his letter, Grassley reminded Wray, “As you are aware, 18 U.S.C. § 793(f) makes the mishandling of classified material through gross negligence a criminal act.”

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Former judge Andrew Napolitano, in an interview Tuesday on “Fox & Friends,” insisted, however, the wording didn’t really matter from a legal standpoint.

“Grossly negligent” and “extremely careless” have the same meaning, he said.

“James Comey thought he could pull a fast one on the American people by using a slightly less offensive sounding term – ‘extremely careless’ – and thereby exonerate her,” said Napolitano.

“But legally, it’s the same thing.”

He noted that Clinton continued to use the private server, even though she knew it would make state secrets vulnerable to hacking.

And, in fact, the server was hacked, Napolitano pointed out.

“Here’s what’s in Senator Grassley’s mind and in the minds of a lot of us looking at this: Why? Why did he, if I may, fudge the standard in order to let Hillary off the hook?” Napolitano said.

‘The FBI should be held to a higher standard’

The Senate Judiciary Committee revealed in August that Comey began drafting his exoneration of Clinton well before agents interviewed her or other key witnesses about her behavior.

“Conclusion first, fact-gathering second — that’s no way to run an investigation,” Grassley and Judiciary Subcommittee Chairman Lindsey Graham, R-S.C., said in a letter to the FBI at the time. “The FBI should be held to a higher standard than that, especially in a matter of such great public interest and controversy.”

The committee said that when Comey began drafting his statement, as many as 17 witnesses had yet to be interviewed.

The timing of the draft statement raises questions about Comey’s stated rationale for taking the unusual step of explaining publicly why the FBI decided not to refer charges to the the attorney general.

Comey said he decided to make the statement after former President Bill Clinton met on a Phoenix airport tarmac with Attorney General Loretta E. Lynch in June 2016, which he said compromised Lynch’s independence.

‘Sheer volume’ of classified info

In the draft statement prepared in May, Comey wrote that “the sheer volume of information that was properly classified as Secret at the time it was discussed on email (that is, excluding the ‘up classified’ emails) supports an inference that the participants were grossly negligent in their handling of that information,” the Washington Times reported.

In a June 10 draft, the “grossly negligent” language was eliminated.

Comey wrote, “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.”

Comey’s decision not to seek criminal charges was widely criticized by scholars who insisted the relevant federal statue does not require “intent” to violate the law.

Section 793 states: “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.”

The Hill noted some legal scholars believe Comey’s analysis of the law was correct, citing a 1941 Supreme Court ruling. The case was a challenge to a conviction of a Navy intelligence official who sold classified material to the Soviet Union. In a narrow ruling, the majority opinion said the law required “intent or reason to believe that the information to be obtained is to be used to the injury of the United States.”

But other scholars, The Hill noted, argue that prosecutions have been brought since the 1941 case in the military courts that didn’t require intent.

In testimony before Congress, Comey insisted no federal prosecutor would purse Clinton’s case based on the gross negligence statute.

Former White House Press Secretary Sean Spicer said in an interview with “Fox & Friends” the revelation that former FBI Director James Comey changed the language in his statement about ending the Hillary Clinton email investigation is concerning.

“You have to ask: Why did Comey do this?” Spicer said. “I think when you look at Comey’s actions that he has talked about since leaving office, there is a question about whether or not he was trying to tip the scale and achieve certain actions, both during the election season and since.”

He said the language modification in Comey’s statement “really presents some concern,” and it should be looked into.

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