During his prolonged grilling on Capitol Hill Thursday about the decision not to prosecute Hillary Clinton over her use of a private email server, FBI Director James Comey said only one case involving gross negligence in handling classified information has been prosecuted in the past century.
Comey and the FBI undoubtedly know that case well: the defendant was one of their own.
For more than two decades, FBI Special Agent James (“J.J.”) Smith was a highly respected, veteran agent running counterintelligence operations in the Los Angeles area. His main focus was on China: trying to identify the Communist country’s intelligence operations in the U.S. and ferret them out.
In 2003, less than three years after he retired from the FBI, Smith was arrested by his former colleagues on shocking and scandalous charges that he carried on a sexual relationship with one of his longtime sources, Katrina Leung. The FBI said in court filings that Smith carried classified documents and other sensitive records in his briefcase and sometimes left the case open and unattended while he visited her residence.
Leung copied many of the records, some of which were recovered from a safe in her home, the court records said. That was particularly worrisome because the FBI had developed Leung as a double agent known to be working with the Chinese government, but in theory working loyally for the FBI.
The story had another major salacious twist: Leung—known by the code name “Parlor Maid”—had also carried on a sexual affair with another FBI agent involved in managing her, Bill Cleveland.
Smith and Leung were arrested and later indicted separately. Smith was charged with four counts of wire fraud for submitting false reports on Leung’s activities as an FBI asset and one count of grossly negligent handling of classified information. The latter charge is a component of the Espionage Act, although Smith was not charged with espionage as such.
An FBI official confirmed to POLITICO Thursday that Comey’s public references to a single, gross negligence classified information case in the past century were to the indictment of Smith over a decade ago. The FBI director suggested the Smith case was starkly different than Clinton’s.
“It’s been one case brought on a gross negligence theory,” Comey told the House Government Reform and Oversight Committee as Republican lawmakers pressed him on why Clinton wasn’t being prosecuted for negligence in operating a private email server that Comey said contained highly classified information.
“I know from 30 years there’s no way anybody at the Department of Justice is bringing a case against John Doe or Hillary Clinton for the second time in 100 years based on those facts,” Comey added.
The FBI director also appeared to take a shot at former U.S. Attorney Rudy Giuliani and other ex-prosecutors who have been saying they would’ve charged Clinton with gross negligence.
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