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James Comey Blasted By NYU Law Professor For ‘Contradictory’ Statement

By Aric Mitchell
Published on: 10:27 PST, Jul 8, 2016

James Comey has won praise from both sides of the aisle for his handling of the Hillary Clinton email investigation and its subsequent fallout.

The former Republican and Bush appointee headed the FBI’s extensive search that ended with a damning statement of Hillary Clinton, but no basis for indictment.

Republicans immediately scheduled James Comey for a sit-down in which he tried to explain his reasons for not pursuing an investigation in spite of dropping bombshell after bombshell into the “extremely careless” actions of Clinton and her staff in handling classified materials on a private “home brew server” outside the influence of the State Department’s system.

While Comey’s remarks into Clinton’s actions go well beyond the “extremely careless” line, they aren’t sufficient for New York University law professor Richard Epstein to give him a pass.

On a recent edition of the podcast The Libertarian, Epstein appeared to discuss the actions of James Comey — particularly his statement. He said that Comey “was right in the first half and wrong in the second half.”

“At this particular point, I think his decision was based on the idea that to press criminal charges is to upend a presidential election at an extremely late date, and I don’t think he wanted to do that.”

In discussing why James Comey was so wrong about his decision not to indict, the legal scholar and expert said that the statement “pointed towards indictment” and that it was a “mystery” why he didn’t go more into the discussion of the statute that talks about gross negligence.

“That is, in fact, actionable. By definition, ‘gross negligence’ is ‘extreme carelessness.’ And to say that because you used these words instead of those words, the prosecution is not going to take place — that is simply a hairsplitting situation, and no one should ever tolerate that.”

Epstein then brought up the legal principle of Mens rea, which is defined as the “intention or knowledge of wrongdoing that constitutes part of a crime, as opposed to the action or conduct of the accused.”

Epstein explained that “the guilty mind that you need in which you knowingly maintain information on a server you know is not fit for the information in question because it is not hardwired, it’s not run by the State Department; it’s not protected… what Comey said was just wrong.”

And by “what Comey said,” Epstein is referring to the part where the FBI director said it was possible Hillary Clinton did not know that she was breaking the law.

“It doesn’t take any great Roman law scholar to… know that ignorance of the law does not excuse,” Epstein said. “Mens rea only requires that you have the mental state to do all the things that are illegal under the statute.”

From there, the law professor said that one does not have to believe that they’re wrong in order to be eligible for prosecution, using the crime of murder as an example.

“The reason we never allow that to come in there is that it would be an absolute travesty to run a criminal system where somebody murdered somebody else and said, ‘Well I knew it was immoral to murder other people but I wasn’t sure it was a crime having not consulted the books.”

In this particular case, Epstein said, the reasoning of James Comey not to indict is even more flimsy because “everybody knows and it’s well understood that everybody in the State Department, from top to bottom, is constantly told to make sure that you only do your emails on some kind of secured system.”

When that point was mentioned to Clinton by the Inspector’s office, Epstein said, “either she or one of her assistants said to bug off and never mention this again, which establishes all the Mens rea that you need.”

He continued.

“One of the problems with the Comey statement is that there are lots of juicy tidbits out there that imply very heavily against her, and he never mentioned any of them.”

That said, Epstein, who is also a rather harsh critic of Donald Trump (Ms. Clinton’s opponent), said that as things stand, he expects the email scandal and all the events surrounding it — Bill Clinton’s meeting with Lynch, Comey’s does-not-compute refusal to recommend an indictment, and mention that Clinton would keep Lynch on as Attorney General if elected — will have grave consequences on her bid for the presidency.

While it’s too early to tell if the James Comey statement will have that far reaching of consequences, a Rasmussen poll did come out today showing that Trump led Clinton by two percentage points.

Do you think that Epstein is right that James Comey erred in not recommending charges? Sound off in the comments section below.

[Image via Rich Girard | Flickr Creative Commons | Resized and Cropped | CC BY-SA 2.0]

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