Former U.S. Attorney General Michael Mukasey weighed in on the legal and political fallout from FBI Director James Comey’s statement on the agency’s investigation into Hillary Clinton’s email scandal.
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“Gross negligence is, in fact, what he [Comey] actually described and said she [Clinton] was extremely careless. That’s the definition of gross negligence, particularly when you describe material she was dealing with,” Mukasey told the FOX Business Network’s Maria Bartiromo.
“They haven’t yet cleared up the question of whether the Clinton Foundation is still under investigation, I’ve got no idea where that goes. Obviously, the portions of yesterday’s press conference just before he made his announcement are going to be cut up into little sound bites and turned into campaign spots for Donald Trump.”
According to Mukasey, the gross negligence described by Comey is actually enough to prosecute Hillary Clinton.
“There is no issue of intent under the statute, under either statute. He’s talking about two separate laws; One says that if you show gross negligence in putting classified material where it shouldn’t be and in the hands of somebody who shouldn’t have it, that is a felony. Now gross negligence is the only level of intent you need, and what he described was gross negligence.”
Mukasey took issue with the FBI director publicly announcing the agency’s recommendations on the case.
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“He stepped way outside his job in disclosing the recommendation in that fashion.”
Mukasey explained how the FBI normally presents a case and potential recommendations to prosecutors.
“[The recommendation] is supposed to take place in the context of a discussion with the DOJ prosecutors who are going to handle the case. Usually what the FBI does is to present facts to prosecutors. And most often they come in and say, ‘hey we think we’ve got a case here.’ But they present the facts to prosecutors, prosecutors decide whether to go forward. The FBI, even the head of the FBI, doesn’t make that decision.”
Mukasey also weighed in on how Attorney General Loretta Lynch should have handled her meeting with former President Bill Clinton.
“You say ‘no.’ And if for some reason you can’t say ‘no,’ you have staff present to take notes on what gets said at the meeting.” Mukasey continued, “I had staff who were there largely, or often, to tap me on the shoulder and say, ‘don’t do this,’ and those are the people you listen to.”
On whether a new Attorney General would consider taking on Hillary Clinton’s email case again, Mukasey said, “This case, the emails as a practical matter, no. The Clinton Foundation is something else, but not this case.”