FBI Director Comey reveals why he couldn’t charge Hillary Clinton for being “extremely careless” with classified information

FBI Director Comey reveals why he couldn’t charge Hillary Clinton for being “extremely careless” with classified information

FBI Director Comey reveals why he couldn’t charge Hillary Clinton for being “extremely careless” with classified information

Not sure this is equally intriguing to the general public, but as a lawyer I was very interested in how FBI Director Comey interpreted the various statutes that might be applicable to Hillary Clinton’s mishandling of classified information. (Andrew McCarthy provides more information on the technicalities of this interpretation here). Today’s hearing provided some insight into the workings of the investigation and decision not to recommend charges against Clinton.

There are two felony statutes at issue: The first section of the statute that would be applicable requires intent, and the second applicable section only requires gross negligence. A violation of either of these sections could bring a fine or imprisonment for up to ten years. The citation is 18 U.S.C. § 793.

Section (d) of the applicable statute requires intent – indicated by the use of the word “willfully”:

(d) Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it; or

The second section, section (f), uses gross negligence as the standard for culpability:

(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—

We have heard a lot about intent and how Comey could not, in his opinion, accumulate the necessary amount of evidence to feel comfortable to charge Clinton with a violation of section (d) above. This is the stuff that is so infuriating about lawyers – a lot of parsing of words and seemingly unsupported discounting of information. Most of us would agree that things like setting up this outside server, having only a personal email to use with both personal and official business, allowing uncleared people to review her emails (her lawyers) are just a few of the things we could point out to show clear knowledge and therefore intent.

Setting up the server shows clear intent to allow classified information into an unauthorized location (regardless of the reason she did it) because she intended to use it for official business. Using a personal email for state business shows she knowingly used an unsecured method to communicate what she knew or had to have known was classified information (any reasonable person would know that it was probable as Secretary of State you would be viewing classified information via electronic communications). We don’t really have to go any further – the destruction of emails is just gravy, the sworn testimony where Clinton lied is fuel for the fire, but the deed was done at the moment the server was set up. The whole operation started as an intentional act on the part of Clinton to remove her communications from the government system where she knew or should have known that classified information would be transmitted.

Why that is not enough for Comey to say intent is implicated, at a minimum, is beyond me. Additionally, this is usually something that the DOJ would decide, and further, it is a fact rightfully within the purview of a jury. Comey has the responsibility not to bring frivolous cases, but once evidence reaches a certain threshold law enforcement usually turns over these decision to the prosecutors. Despite the wealth of evidence showing intent, even if it is circumstantial which it almost always is, he couldn’t bring himself to let the people decide. He individually made the call that no reasonable person could find that Clinton intentionally mishandled classified information. Public opinion polls show a different story.

The only thing that makes sense to me is that he was using a much higher standard – something akin to looking for an open and shut case before he would recommend charges. Make no mistake, this potential charge IS a big deal. The presumptive Democratic nominee is at the center of the dispute, and a recommendation to charge WOULD almost certainly change the course of history. I think the bottom line is that Comey did not want to be the person to be responsible for the fall out of a decision like that. Since he acknowledged the egregious behavior of Clinton but fell short of official action, he probably felt like that was the best he could do without inserting himself into the political process. I disagree with his action because I think there is plenty of information to show intent, but that’s how I understand his decision. In some ways this could be viewed as honorable – he has such respect for the people that he doesn’t want to wrongly do something this big because of the immense implications it would have. Sadly, he wouldn’t have been wrong, and it would have been more honorable to show an unbreakable loyalty to the rule of law.

With regard to section (f) of the statute that uses only a gross negligence standard – the information was more interesting. Comey said that only one person in the last 99 years has ever been prosecuted under that section (he said the statute has been on the books since 1917). Further, that the DOJ has something of an unofficial policy that it will not prosecute under that section because the standard of gross negligence has constitutional implications. What he was saying was that the vagueness of a standard like gross negligence will violate due process – which requires that our criminal statutes be clear and unambiguous so that we are informed of the consequences of our actions. Comey indicated that the DOJ had concerns about the constitutionality of a duly enacted statute so it had unilaterally decided not to use it to prosecute. To my view, that concern is not properly raised by the DOJ – it is the purview of a defendant to challenge the law, or for Congress itself to revise the law. The DOJ should not be in the business of interpretation – it should be about enforcement. But as has been made very clear over the last several years, our ideals of separation of powers aren’t even close to being respected. Therefore, the fact that Comey called Clinton’s behavior extremely careless (which sounds a lot like gross negligence to nearly everyone) doesn’t matter at all because the applicable statute that only requires gross negligence will not be enforced, will in fact NEVER be enforced.

So there you have it – Comey won’t recommend charges under 18 U.S.C. § 793(d) because the evidence of intent, in his opinion, did not rise to the level where he was comfortable to charge. And second, Comey won’t recommend charges under 18 U.S.C. § 793(f) that only requires gross negligence because as a general principle the DOJ just simply doesn’t use the statute, ever. So, laws on the books are completely useless because somebody a long time ago decided not to use them, the people working today have no desire to review those decisions, and James Comey has no interest in setting a precedent that could change the course of history.

 

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19 Comments
  • Jodi says:

    Excellent, Jenny. Spot on.

  • Evi L. Bloggerlady says:

    There was enough evidence to establish willful intent (certainly by inference) and while I understand why he would dodge the decision, in the past he has been quite aggressive in going after individuals like Martha Stewart and others. If this was anyone but Hillary Clinton it would have gone forward. She was too big to charge.

    And that is a very bad precedence.

  • GWB says:

    Setting up the server shows clear intent to allow classified information into an unauthorized location (regardless of the reason she did it) because she intended to use it for official business. Using a personal email for state business shows she knowingly used an unsecured method to communicate what she knew or had to have known was classified information (any reasonable person would know that it was probable as Secretary of State you would be viewing classified information via electronic communications).

    No. I have to correct this. Using a State Dept email address and system would NOT have meant the system was classified. Her setting up the server to avoid FOIA and record keeping regulations and laws has NOTHING to do with sending classified over an unclassified network. The same laws above would apply if she had sent sent/received that TS/SCI/TK imagery over a clinton @ state. gov account.
    Setting up that server/account doesn’t show anything to do with classified, since it would be illegal to do what was done, anyway.

    • GWB says:

      the government system where she knew or should have known that classified information would be transmitted.

      To reiterate, there had better not be any classified information going over the state. gov account, or it would be violating the exact same law.

    • GWB says:

      had sent sent/received

      FIFM

    • Jenny North says:

      Using an unauthorized private server for classified government work shows knowledge. As I stated, I agree her purpose for doing so doesn’t matter.

      Setting up the server when she knew or should have known that classified information would be transmitted to it shows intent.

      I do not know enough about the technical aspects of servers, but if she accessed the information over any unauthorized network or via an unauthorized device, she violates the law.

      • GWB says:

        Nooo, you’re missing the point (well, actually, your last sentence in the first response is exactly the point). The information was classified. But putting it on a gov’t email server would NOT make it not a crime. Because normal gov’t email systems are UNCLASSIFIED. For the crime related to classified material it is irrelevant whether it is on a gov’t system; the relevance is whether it is on a properly protected system – IOW a classified system of the appropriate level. The State Dept. regular email system is nothing of the sort.

        My point was that her setting up her own server doesn’t show intent to violate the law on classified material, because the system she was avoiding using wasn’t cleared for classified, anyway.

        (There is plenty of evidence to show intent. And I think her intended evasion of disclosure laws [setting up that server] shows a criminal mindset that would be a major circumstantial component of mens rea.)

        • Jenny North says:

          I disagree that I am missing the point. I made no claim that the government system was secure for classified information. What I said was that setting up an unauthorized server shows she intended to conduct official work over this unauthorized system. By work I mean this: Her work would likely include viewing classified information through electronic means, which would be a violation of the law because the transmission was via unauthorized means.

          If she were to just view/send/etc. unclassified emails on her server even if they are work-related then she has not mishandled classified information, because there was no classified information to mishandle. I am not commenting on the legality or illegality of having the outside server itself, though I do believe it is forbidden, even if at least by agency/department directives.

          If you want to limit her intent for setting up the server as simply an intent to avoid disclosure laws (which I agree was her primary intent), then you make the case for no charges better than Comey did. Intent can be shown through knowledge of what will happen even if you don’t do something for a particular reason.

          If you want to take issue with what a reasonable person would anticipate using the server for, then fine. But I think it’s very reasonable to believe most people would assume that classified information is going to find its way into the Secretary of State’s email communications – if only for the popular complaint that much of the information is over- classified anyway. Hillary had to have known that but still went forward using an unsecure system to transmit email which she knew or should have know included classified information. Therefore setting up the unsecure system shows intent to mishandle.

          I can’t comment on the secured-ness of government systems, but I think whether the alternate system was secure or not has no bearing on this discussion. The sticking point here is whether or not she thought she would be transmitting classified information. If she had no reason to believe she would be dealing with classified information on her private server, then yes you would be correct – setting up the server shows nothing toward intent to mishandle classified information. Hillary hasn’t even made that argument – that she never expected classified information to be transmitted – and if I was prosecuting this case I would never concede that argument.

          • GWB says:

            By work I mean this: Her work would likely include viewing classified information

            And that would NOT be viewed on the system she set up her private server to avoid.

            If you want to limit her intent for setting up the server as simply an intent to avoid disclosure laws (which I agree was her primary intent), then you make the case for no charges better than Comey did.

            Perhaps. But I don’t think you can show that she set up the private server in order to send classified information around – since the acknowledged reason for setting it up was to avoid using the UNCLASSIFIED gov’t system. It would already be a violation of the law to send classified over the system she was avoiding.

            most people would assume

            Not adequate for this case, since most people don’t know much of anything about classified information, nor its handling and protection.

            Hillary hasn’t even made that argument

            That is a powerful statement. And I wouldn’t expect you to give up that line until her lawyers did make it.

            Sending the classified over that private system DOES provide for more likelihood that it would fall into the hands of someone without access and/or clearance and/or need-to-know. But it requires a really high level of intent/motive to think she set it up to specifically put classified on it.

            If she had reason to believe she would be handling classified, and that she would be handling it through non-secure means – even a gov’t system – then she broke the law long before she set up that server – by violating the NDA and other legal requirements you sign when you get your clearance, long before you actually touch any classified material.

            I think intent is clear from mindset (setting up the server showed a desire to avoid following the laws/regulations), and that she actually asked the one person to remove markings and then send the stuff non-secure (and the subsequent cover-up). Oh, and the fact she handed it to her lawyer on a thumb drive – that’s definite intent, unless you can show she was totally ignorant of the classified (which would be *really* hard).

            BTW, one of the questions in a background investigation interview (interviewing other people about you) is whether they have ever known you to try to circumvent gov’t IT security or other restrictions (proxy settings, software restrictions, sending info to non-gov’t systems…….). Ever.

            I won’t argue further. I’m seeing this as a tiered issue that obscures that original server decision from the subsequent crime. I will bow to your legal expertise on that issue.

            • GWB says:

              It would already be a violation of the law to send classified over the system she was avoiding.

              Perhaps what I should say is: if you think she set up the server to send classified, then you don’t even need the server issue – since she had the intent to send classified over her unclassified gov’t account, anyway, in violation of the law.

              That’s not really counter to your argument, but directing you to a more fundamental display of intent.
              (And it solves our argument, since I concede your point. 🙂 )

    • Jenny North says:

      I did not say simply using a government email would make the information classified. It is the content of the document that makes it classified not where it is sent or received or held. Not sure what the disagreement is.

  • Minroad says:

    My understanding is that Comey thought she didn’t possess the mens rea, or at least he couldn’t prove it.

    In other words, she DID intend to set up a private server, but DIDN’T think there was anything wrong with that because it was likely she was too stupid (‘technically unsophisticated,’ as he put it) to know that was wrong.

    As for gross negligence, and not mens rea, as a standard, Comey seems to think that that is unconstitutional, having been only used once, but never litigated due to a plea bargain.

    What I don’t understand is why the timing of cleaning the server wasn’t evidence of a guilty mind (mens rea), is perplexing to me.

    • Jenny North says:

      Correct – he didn’t think he could prove intent to mishandle classified information. Where he had a problem was that he said she was unsophisticated in knowing whether the information she transmitted was classified or not. He didn’t know if she knew what the markings meant. There may also be more things he referenced but that is the one I remember him specifically taking about.

      And right, the gross negligence statute is apparently thought by DOJ to be unconstitutional as Kim wrote about here: https://victorygirlsblog.com/former-doj-attorney-fix-clinton-email-case-made-doj-not-fbi-video/
      So basically he didn’t bother with it at all.

      I think the argument as to why the other facts that show intent were discounted simply have to do with no fact being a smoking gun in his eyes. A lot of the facts on their own are significant, but put together they are very strong, so he should have adhered to the rule of law and sent it over to DOJ to make the call. We of course all know what that would have been, but he took it out of their hands, and ultimately out of the hands of the people.

      • GWB says:

        He didn’t know if she knew what the markings meant.

        Then she never should have had a security clearance in the first place.
        (Yes, I agree, that’s pretty self-evident, but it needs to be reiterated.)

  • Minroad says:

    A more succinct way of stating what I wrote above:

    1) James Comey thought he could prove Actus Rea, but not Mens Rea, and both are required to prosecute.

    2) Gross negligence is likely unconstitutional, having only been used once in 50+ years, and not a standard he or any federal prosecutor would use in any case involving national security.

  • Minroad says:

    2) The Gross negligence standard*

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