Former AG Michael Mukasey: Damage from Clinton Email Scandal Will Last ‘For Decades’

By Barbara Hollingsworth | October 28, 2016 | 5:06pm EDT
James Wilson Institute president Hadley Arkes (left) and former U.S. Attorney General Michael Mukasey (right) during a panel discussion in Washington. (James Wilson Institute)

( – Former U.S. Attorney General Michael Mukasey said that the nation will be dealing “for decades” with the fallout from FBI Director James Comey’s decision in July that "no charges are appropriate" against former Secretary of State Hillary Clinton for her “gross negligence” in keeping top-secret information on her private email server.

”I think the damage that was done to the concept of one aspect of the rule of law, i.e. that the same rules apply to everybody, the damage that was done is something we’re going to be dealing with for decades,” Mukasey, a former federal judge, said last week during a panel discussion in Washington, D.C. on “The State of Our Law After Comey’s Decision” sponsored by the James Wilson Institute on Natural Rights and the American Founding.

“I think it will also tend to accelerate the phenomenon we’ve seen several times that people who lose policy arguments feel free to disclose even classified information so as to get their policy preferences heard publicly, and believe they are speaking in the name of a higher good in doing so,” Mukasey predicted.

According to the State Department, at least 22 emails found on Clinton’s private server were classified as “top secret” – which applies to classifed information “the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security.”

On Friday, Comey announced that the FBI has reopened its investigation into Clinton’s email server. “In connection with an unrelated case, the FBI has learned of the existence of emails that appear to be pertinent to the investigation,” the FBI director wrote in a letter to members of Congress.

During last week’s panel discussion, Mukasey admitted that “I deluded myself in public into thinking that there was no way that [Hillary Clinton] couldn’t be prosecuted.

"There are a number of statutes that potentially apply, one of which was the basis of prosecuting General [David] Petraeus,” he pointed out, even though the general’s mistress/biographer had top-secret clearance herself and there was “no leakage of the material” to a third party, he said.

In 2015 Petraeus, the former director of the CIA, pleaded guilty to one count of unauthorized removal and retention of classified materials, a misdemeanor, and was sentenced to two years’ probation and a $100,000 fine.

Mukasey also criticized Comey – who he said “has cultivated a straight-arrow image, including that episode in the hospital room that we’ve all heard about with John Ashcroft” - for misconstruing the statute that makes it a felony for someone with an official position in the government who has been made aware of the necessity to protect classified information to negligently fail to do so.

“Anyone who loses classified information or puts it in a place where it can be compromised and does so negligently, or with gross negligence, that’s a felony,” the former federal judge pointed out.

“And in one point of his presentation, the FBI director said…well, that’s a constitutionally suspect standard because we don’t prosecute anybody for simply being negligent. And he seemed to have a plausible point.

“Consider that that statute was put there purposely by Congress. They knew what they were doing. And it’s not that they were simply punishing negligent conduct with a felonious result, they were prosecuting a certain kind of negligent conduct by people who should know what it was they were dealing with.”

When Comey said that “no reasonable prosecutor would ever bring such a case [against Clinton], I couldn’t believe my ears,” the former AG said. “It’s clear her conduct violated that standard.”

“On another level, the statute criminalizes the destruction of information that’s potentially relevant to an investigation, and there doesn’t actually have to be any investigation,” Mukasey continued.

“The part that says the government doesn’t actually have to have an investigation…was put in the statute by Congress at the time Hillary Clinton was Senator Clinton, and she voted in favor. Lay her conduct alongside those statutory provisions and it fits.”

Noting that Attorney General Loretta Lynch excused herself from the question of whether Hillary Clinton should be prosecuted after meeting with former President Bill Clinton on a tarmac in Phoenix during the FBI investigation, asked Mukasey: “Have you ever heard of any other attorney general…?”

 “No,” he quickly replied.

“Look, that decision was not Jim Comey’s to make. He, as the head of the FBI, had the responsibility to head the gathering of evidence. Yes, they make recommendations. They make them in confidence to prosecutors, who then make the final decision. That job doesn’t get ceded to somebody,” Mukasey told CNSNews.

“And as to the suggestion that somehow it was ceded to him because of his high moral standing, by that standard it could have been ceded to Oprah.”

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