The former prosecutor who let Petraeus slide weighs in on the e-mail scandal.
Oh, and did I mention that the Obama-appointed prosecutor is a donor to the Hillary Clinton presidential campaign?
In what appears to be an audition for attorney general in a hoped-for Clinton II administration, Anne M. Tompkins, the former U.S. attorney for the western district of North Carolina (appointed by President Obama in 2010), has penned an op-ed for USA Today arguing that Hillary Clinton is not guilty of “knowingly sending or receiving classified materials improperly.”
Understand: Ms. Tompkins has had nothing to do with the FBI’s investigation of Mrs. Clinton’s handling of classified information through an unauthorized private e-mail system. She is not privy to the evidence the FBI is gathering — she knows no more about the case than anyone else who reads the papers. To exonerate Clinton, she relies on nothing other than her status as the government lawyer who oversaw the prosecution of David Petraeus.
The Petraeus case, she insists, was much stronger than the case — or at least what she frames as the case — against Hillary Clinton. She thus contends that there is “no merit” to the comparison between the Petraeus and Clinton situations offered in a Wall Street Journal op-ed by former Bush attorney general and top federal judge Michael Mukasey.
If it weren’t so disingenuous, Tompkins’s reasoning would be comically incompetent. She writes:
The key element that distinguishes Secretary Clinton’s email retention practices from Petraeus’ sharing of classified information is that Petraeusknowingly engaged in unlawful conduct, and that was the basis of his criminal liability. [The italics are in Tompkins’s op-ed; I’ve added the bold.]
To begin with, Tompkins did not prosecute Petraeus for sharing classified information. Instead, despite Petraeus’s commission of several felonies, Tompkins struck a cozy arrangement with Petraeus’s lawyer, David Kendall (who happens to represent Clinton), allowing the retired general and former CIA director to plead to a single misdemeanor count of unauthorized removal and retention of classified documents (section 1924 of the federal penal code).
As I pointed out at the time of Petraeus’s plea, based on the prosecution’s outline of the evidence it was in a position to prove, Petraeus not only transmitted highly classified information to his paramour/hagiographer; he retained it in a reckless manner, failed to return it on demand, and repeatedly made false statements to the government and investigating agents about his hoarding and disclosure of that information. Tompkins let all these felonies slide. Given her own failure to charge crimes she could easily have proved in a case for which she was directly responsible, she is hardly in a position to judge what crimes should be charged as the result of an investigation she has nothing to do with.
It is difficult to decide where to begin with Tompkins’s laughable claim that Petraeus’s certain knowledge that the information he was dealing with was classified is a “key” distinction from Clinton’s state of mind. Let’s start with the most obvious fact: The FBI is not limited to investigating the same misdemeanor offense to which Tompkins chose to let Petraeus plead guilty. The plethora of potential crimes the agents are investigating have a variety of proof elements, including different scienterrequirements.
For instance, as I’ve previously explained, one of the several felony violations of the Espionage Act (section 793 of the federal penal code) makes it a crime for an official to exercise gross negligence in handling classified information — e.g., to allow national defense information with which she has been entrusted to be lost, stolen, abstracted, destroyed, or improperly transmitted. So if a top government official were to set up an unauthorized private server system for storing and transmitting information under circumstances where she knew that (a) her job involved dealing with vast amounts of classified information and (b) the private system was easily penetrable by foreign intelligence services and other minimally competent hackers, she could be charged with a felony even if she did not have perfect knowledge that any one particular e-mail contained classified information.
But more to the point, as any competent prosecutor knows, you cannot make a definitive pronouncement about any suspect’s state of knowledge without knowing all the facts of the case. Tompkins has no idea what facts the FBI is turning up, and she seems to have a decided disinterest in reports that Clinton’s known e-mails are threaded with classified information.
Tompkins seems to believe that unless the prosecution has the kind of slam-dunk proof she had (but shied away from using) in the Petraeus case — namely, proof that Petraeus admitted to someone that the information he hoarded was highly classified — it is impossible to prove knowledge beyond a reasonable doubt. Nevertheless, there are innumerable cases in which investigators and prosecutors establish knowledge, intent, willfulness, gross negligence, and other mental elements without a confession by the suspect. In fact, in virtually every criminal trial, the judge instructs the jury that, because we are not mind-readers, knowledge and intent are usually proved by analyzing the totality of the evidence and the reasonable inferences that flow from it.
In Tompkins’s own prosecution of Petraeus, the government described the journals he maintained as containing “the identities of covert officers, war strategy, intelligence capabilities and mechanisms, diplomatic discussions, quotes and deliberative discussions from high-level National Security Council meetings, and defendant DAVID HOWELL PETRAEUS’s discussions with the President of the United States of America.” Petraeus, of course, was the director of the CIA and had been the commander of U.S. forces in war zones. I daresay that even if he hadn’t told his girlfriend that the journals he let her read were highly classified, Tompkins wouldn’t have had the slightest difficulty proving that he was well aware of this fact. I imagine that the reason Petraeus pleaded guilty rather than going to trial — other than the fact that Tompkins was offering him a slap on the wrist — is that he realized his high-ranking position left him with no plausible state-of-mind defense.
The case that Clinton mishandled classified information appears so daunting that, even as Tompkins attempts to trash it, she can’t help but bolster it. The current iteration of Clinton’s evolving defense is that she did not realize information on her server was classified because it was not marked as such. But Tompkins elucidates that Petraeus’s journals were not marked “top secret” either. So let’s put aside for the moment the fact that the investigation of Clinton potentially involves a quantum of classified information that dwarfs the materials in Petraeus’s case. Tompkins illustrates that the lack of markings on the information in question is immaterial if an official’s high position and familiarity with government’s intelligence-handling protocols make it obvious that the information is classified — exactly the point Judge Mukasey made in his op-ed.
The rest of Tompkins’s op-ed is just a rehash of talking points peddled by Camp Clinton. She repeats, for example, the Obama State Department’s self-interested claim that none of the information known to have been on Clinton’s server was classified “at the time it was sent or received.” This conveniently omits that (A) the intelligence community’s inspector general has stated that some of the e-mails contained classified information at the time they were created; (B) the sheer volume of classified information currently being deleted from the belated public disclosure of the e-mails that Clinton deigned to turn over to the State Department makes the implausible claim of only-after-the-fact classification increasingly untenable; (C) even if it were true that information was not marked classified until after it was sent or received, many of Clinton’s e-mails involved conversations with foreign officials which, under Obama’s own classification order, would automatically have been deemed classified because their disclosure was presumed to harm national security (see Executive Order 13526, sec. 1.1(d) (“The unauthorized disclosure of foreign government information is presumed to cause damage to the national security”); (D) Clinton provided copies of her server to her attorney and a private maintenance company (Platte River Networks) long after the e-mails were sent and received (and thus, presumably, long after the information in them suddenly became classified); and (E) Clinton destroyed (or at least attempted to destroy) over 30,000 e-mails — e-mails that were never turned over to the State Department but which the FBI’s investigation is reportedly trying to recover.
In any event, we will not be able to conclusively assess Hillary Clinton’s state of knowledge or criminal liability until all the facts have been laid bare. As any prosecutor knows, that’s why you do an investigation. At this point, all we can safely say is that the facts that have been revealed publicly raise a very real possibility, if not probability, that Clinton has broken federal laws.
Of course, Clinton donors may see things differently.
This article was originally published at NationalReview.com