As it turns out, you can’t get the plea deal unless you “confess” in open court that you did the crime purposefully. So what do you do? Do you confess to a “crime” that you had no intention of committing, or do you commit perjury and say you did it on purpose?
Hillary Clinton checking her Blackberry in 2011, when she was the secretary of state.
(Kevin Lamarque / AP)
Truthdig Editor in Chief Robert Scheer, in the immediate aftermath of FBI Director James Comey’s announcement that the bureau would not seek an indictment againstHillary Clinton for her misuse of and failure to secure classified information, asked me to write about the decision. I said that I would but found that I was so angry about the Justice Department’s hypocrisy that I just couldn’t put pen to paper until I had cooled off for a few days. I was further angered by what I heard in the nationally televised Comey congressional hearings two days after the announcement, from both Democrats and Republicans.
I’ve not yet cooled off, but I feel as though my anger is focused enough to offer a few thoughts.
First, I want to be clear that I’m not angry at Hillary Clinton personally. I don’t like Hillary. I don’t support her. I don’t trust her. I don’t think she would be a good or trustworthy president. But that’s not the issue here. The issue is the inherent unfairness in the system.
I was arrested in January 2012 and charged with five felonies, including three counts of espionage, one count of violating the Intelligence Identities Protection Act, and one count of making a false statement. The espionage charges stemmed from conversations I had had with reporters from The New York Times and ABC News about the CIA’s torture program. Four of those five charges eventually were dropped.
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For the record, I had not made a false statement. That’s what is called a “throwaway” charge that the Justice Department files and then offers to bargain away. And I hadn’t committed espionage, either.
I did plead guilty to confirming the name of a former CIA colleague to a reporter—who never made the name public. I did it. I admit it. And I paid a price for it.
That said, providing or confirming the names of former or current CIA officers happens all the time and is almost never prosecuted. Former Deputy Secretary of State Richard Armitage outed CIA officer Valerie Plame and was never prosecuted for it. Former CIA Director David Petraeus revealed the names of at least 10 CIA officers to his mistress, lied to the FBI about doing it and still was never charged. Former CIA Director Leon Panetta exposed the name of the Navy SEAL who killed Osama bin Laden, and Panetta was not charged.
The Justice Department calls that “prosecutorial discretion.” I call it an iron fist that came down on my head because I exposed the torture program while those who were politically connected or were friends of the president got a pass on their misdeeds.
Several members of Congress this week raised my case and stated—as if they had any idea what they were talking about—that I had had “criminal intent.” That’s bull. I never had criminal intent. But I still never had a chance. Here’s why:
In my very first hearing in the federal Eastern District of Virginia, my judge said that she would not respect precedent as it related to having criminal intent in a national security case. In plain English, she didn’t care one whit if there was intent or not. Either I did it or I didn’t. If I did it, I should be punished.
At the same time, the Justice Department came up with the novel idea that I had exposed the name and spoken to reporters because I was trying to build a consulting business and sell books. In fact, my book wasn’t written at the time, and it didn’t come out until two years later.
Furthermore, all the prosecutors had to do was look at my bank account, which I’m sure they did, to see that I was broke. I had no consulting business. It was a lie that was somehow treated as fact because it had been spoken by the Justice Department. But that didn’t make it true.
When I finally stood to be formally sentenced in January 2013, the judge asked me if I had revealed the name on purpose.
Apparently, criminal intent mattered after all. I said that I had not. She then suggested that I have a conversation with my attorney. As it turns out, you can’t get the plea deal unless you “confess” in open court that you did the crime purposefully.
So what do you do? Do you confess to a “crime” that you had no intention of committing, or do you commit perjury and say you did it on purpose?
Here’s what’s at stake: If you say you did it—even if you didn’t—you get 30 months in prison. If you fight it and lose, you risk up to 45 years in prison, and you can realistically expect 18 to 24 years. That was my predicament. As one sage adviser told me that morning, “This can be a blip in your life, or it can be the defining event of your life.” I chose the blip.
When I read in blogs, comments or even The New York Times that I “confessed” and that I admitted my “criminal intent,” I cringe. How do you respond when you’re forced into a plea? The deck is stacked against you to begin with. What judge doesn’t want to be named to the Supreme Court? What prosecutor doesn’t want to run for governor? What FBI agent doesn’t want to be special agent in charge? They all want to make names for themselves, to get their names in The Washington Post or The New York Times.
If I had committed espionage, why did the Justice Department drop the charges? If I was the criminal they said I was, why did they let me out after only 23 months? It’s because the case against me was political from the beginning, and they knew it.
My skin has thickened dramatically over the past 4½ years. I genuinely don’t care what people think about me. I know what I did and what I didn’t do. I’m happy with my life and comfortable with my past. I seek nobody’s approval.
But what I do seek is fairness in the system. It’s too late for me. But I certainly won’t be the last person to be charged with espionage for blowing the whistle on government waste, fraud, abuse or illegality. It’s going to happen again. And when it does, I hope the defendant asks for the Clinton/Petraeus special treatment.