Former Attorney General Michael Mukasey and several conservative attorneys and legal scholars held a private forum last month in which they harshly criticized FBI Director James Comey's handling of the Hillary Clinton email investigation just eight days before Comey sent a letter to Congress announcing his bombshell decision to review new emails in the probe.
The event, billed as a discussion on "The Law after Comey's decision," featured several speakers including Mukasey, who served in the George W. Bush administration, hammering Comey over the legal precedent he set in concluding the email probe three months ago without charging Clinton with a crime. A video of the event was released late Sunday.
"The damage that was done to the concept of one aspect of the rule of law — that the same rules apply to everybody ... is something that we'll be dealing with for decades," Mukasey argued before an audience of 100 lawyers and interested parties.
"When he said no reasonable prosecutor would bring such a case, I couldn't believe my ears," Mukasey remarked.
Mukasey and other conservatives have made some of the same points in op-eds and public remarks. But the forum, held at the D.C. offices of the prestigious Covington & Burling law firm, had the added punch of impugning Comey's prior reputation as a rare, trusted, non-partisan actor.
At one point during the forum, Mukasey questioned Comey's "carefully cultivated," "straight arrow" image by accusing him of coordinating his account before Congress of a famous hospital showdown during the Bush years. According to Comey's account of the incident, he rushed to the side of ailing then-Attorney General John Ashcroft to prevent him from reauthorizing Bush's domestic surveillance program.
Mukasey accused Comey of consulting with Sen. Chuck Schumer, D-N.Y., on the sickbed story before his vivid testimony to the Senate Judiciary Committee in 2007.
"Great drama — turned out that was all staged," Mukasey said. "...He apparently consulted with Sen. Schumer the weekend before he gave the testimony... so when the question was asked, he could hang his head and say, 'I knew that I would be called to account for this some day' and proceeded to have the story pulled up."
Another speaker was Hadley Arkes, a professor of jurisprudence at Amherst College who founded and directs the James Wilson Institute, a conservative nonprofit that sponsored the forum. Arkes said Comey's decision not to indict Clinton and argue that no "reasonable prosecutor" would have based on the evidence the FBI gathered poses a serious problem for the nation in trying to prosecute others who mishandle classified material or revoke their security clearances.
"The truly serious problem faced now by James Comey's decision is on what grounds would it be possible now to sustain any serious program of classified information and keep the information out of the hands of our real enemies if Hillary Clinton is given the kind of pass she was given?" Arkes asked.
Other speakers included Andrew McCarthy, a former assistant U.S. Attorney who prosecuted the perpetrators of the 1993 World Trade Center bombing, and Sean Bigley, an attorney who specializes in defending security clearance holders accused of mishandling classified material or engaging in activities that would risk heir clearance.
Bigley told the story of a Navy SEAL he represented more than a year ago who lost his military career and had his security clearance revoked over his decision to take a cell phone photo of a page of his training manual so he could study it later.
"This is how seriously the government takes some of these cases," Bigley said during the forum. "Many times when one mistake is made, that's forgiven – there needs to be a pattern of 1, 2, 3 or 4 [mistakes]. But in this particularly case, one mistake was it, and he was out. It was a really stark contrast to the Clinton case."
There's no way of knowing whether the forum had any impact on Comey's decision to tell Congress that he had re-opened the investigation to review new emails founds on Anthony Weiner's computer. Weiner is the estranged husband of top Clinton aide Human Abedin, who the FBI is separately investigating for allegedly sexting an under-aged girl.
An FBI spokeswoman told the Examiner the agency couldn't comment on anything about his Friday decision to announce the new set of emails, including whether he was aware of the forum and Mukasey's comments.
"I would like to think it played some role in it — I don't know if that's necessarily the case," Bigley told the Examiner in an interview Monday. He also noted that Mukasey and McCarthy know Comey well from serving with him in the Bush administration and consider him a "personal friend."
"I believe they both believe [Comey is] a man of integrity, and that's why a lot of people were very surprised by the decision," Bigley said.
"I don't know what went on here but I tend to think bureaucracies protect themselves ... he set her on fire and walked away ... he made a case for indicting her [in his public comments in July] and then spun it on its head and said we're not going to do that. That raised a lot of eyebrows," he said.
Mukasey and McCarthy did not respond to requests for comment.
During the forum, Bigley raised the problem about the security clearance precedent that will be set if Clinton's top aides like Cheryl Mills, who served as her chief of staff and counsel at the State Department, Abedin, and others get jobs in her new administration that require access to highly classified material.
He asked if she would be in a position of establishing "a very public precedent" by either "letting them off the hook, which she could do as president or forcing them to go through the security bureaucracy for the same conduct she excused herself for."
In the adjudicative guidelines for applying for and keeping security clearances, he said, there's a "very telling line."
"In order to attain a security clearance, it must be clearly consistent with the interest of national security – clearly consistent," he said. "It's a very high bar [because] the burden of proof is on the individual. It's up to you to rebut [any] concerns."
Unlike criminal proceedings, in which clients must make their cases to a judge, in administrative cases involving security clearances, a panel of people make those decisions, and they don't always abide by strict interpretations of regulations governing security clearances.
"We litigate character at the end of the day," Bigley said. "It's only natural that anybody making those calls would have a bit of a gut check in situations like these [who might think] I just sent out a good man, somebody who is the sole bread winner with children at home and he's had a 20-year career in this country, but they've made one too many mistakes and now they've lost their career."
"Is that the fair and ethical thing to do ... when we're allowing those at the top to get off the hook for very similar or worse conduct?" he asked.
McCarthy, who serves as a research fellow at the conservative National Review Institute, said during the forum that he held out hope that Comey would indict Clinton at the conclusion of the email scandal.
But his opinion immediately changed when news broke in February that Obama himself had exchanged at least 18 to 22 known emails with Clinton using her private email address.
"Once it was clear that President Obama was personally involved in this and had engaged in the same conduct with Mrs. Clinton," he said, "…there's no way on God's green earth that this case was ever gong to be indicted — the political reality was that [she] wasn't gong to be indicted."
If Comey had indicted, McCarthy said, Obama's emails would be admissible as evidence in the prosecution against her or used by her defense to say, "How come I am being charged, and he isn't?"
To try to remove any taint of politics from the investigation, McCarthy said, the Justice Department should have appointed a special prosecutor to lead an independent probe.
"If you had an executive branch more committed to governing by rule of law ... maybe you do something like appoint a special prosecutor," he said.
After praising Comey's decision in July not to charge Clinton with a crime, Democrats now are accusing the FBI director of caving to Republican political pressure to review new set of emails in the case.
Clinton campaign chairman John Podesta, reacted to the Friday news that Comey essentially re-opened the investigation, by arguing that he was only doing so after Donald Trump and other Republicans engaged in "second-guessing" the FBI and, in public and private, browbeating the career officials in a "desperate attempt to harm Hillary Clinton's presidential campaign."