FBI Director James Comey has chosen not to prosecute Hillary Clinton for her grossly negligent handling of classified information. His justifications for not recommending charges against Clinton shows how the political process privileges the well-connected relative to the rest of the population.

The Criminal Statute

If the Department of Justice charges Clinton for committing a felony, they would be charging her for violating 18 U.S.C. 793(f), which states:

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 . . . Shall be fined under this title or imprisoned not more than ten years, or both.

(emphasis added)

In criminal law, unless strict liability applies, a statute can require four distinct mental states (“mens rea”) to commit a crime: (i) purpose, (ii) knowledge, (iii) recklessness, and (iv) criminal/gross negligence.

Comey essentially suggests that people with political connections can never be prosecuted for grossly negligent behavior.

Purpose and knowledge usually, though not always, go together. Purpose requires an intent to perform the criminalized act, and knowledge requires a near-certain awareness that the act is being committed. In either case, purpose and knowledge require a much clearer sense of awareness than recklessness or gross negligence.

In contrast, recklessness requires grossly unreasonable behavior somewhat less than knowledge. With an even lower mental requirement, gross negligence requires a gross deviation from reasonable behavior without any intent to commit the crime or knowledge that it would result in the commission of the crime.

Thus, to violate this statute, Clinton did not have to intend for its improper dissemination, but merely had to engage in the grossly negligent handling of the confidential information.

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The FBI Director’s Remarks

In his overview of why he does not recommend charging Clinton, FBI director James Comey provides his interpretation of the statute. Beginning promisingly, he states:

Our investigation looked at whether there is evidence classified information was improperly stored or transmitted on that personal system, in violation of a federal statute making it a felony to mishandle classified information either intentionally or in a grossly negligent way, or a second statute making it a misdemeanor to knowingly remove classified information from appropriate systems or storage facilities.

(emphasis added)

So far, so good. Clinton would violate the statute by acting grossly negligent because, after all, the statute explicitly and unambiguously requires this mental state. Continuing, he states the conclusion of his investigation:

Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information. For example, seven e-mail chains concern matters that were classified at the Top Secret/Special Access Program level when they were sent and received. These chains involved Secretary Clinton both sending e-mails about those matters and receiving e-mails from others about the same matters. There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation.

(emphasis added)

Thus, Clinton may not have intended to violate the laws, but she was “extremely careless” to such an extent than “any reasonable person” would have acted otherwise. This extreme carelessness led to 110 emails being sent or received that were classified at the time. Comey describes almost perfectly without legal jargon that Clinton acted with gross negligence, meeting the requirement for violating the statute.

Despite this clarity, he does not endorse prosecuting Clinton for the following reasons:

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In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.

People with fewer political connections have been punished for far less substantially  mishandling classified information than she did.

In addition to violating the statute, the FBI director does not think the gross negligence standard is sufficiently met without (i) intent, (ii) intent, (iii) disloyalty to the United States, or (iv) efforts to obstruct justice.

For the first and second additional factors needed, Comey is obviously wrong – so much so that it contradicts his statements in the same speech that it is “a felony to mishandle classified information either intentionally or in a grossly negligent way.” The statute simply does not require an intention.

For the fourth additional factor needed, obstructing justice is a distinct, separate offense – 18 U.S.C. 73. This statute does not require a completely different statute to be violated to justify a prosecution. Between the supposed intent requirements and the need for other criminal violations, Comey has engaged in legal reasoning about as compelling as that made by the Obama administration in its success at having the most unanimous Supreme Court decisions ruled against it of any President in recent history.

This leaves the third additional requirement: “indications of disloyalty to the United States.” Since “disloyalty” presumably also entails some sort of intention, this factor still reads the gross negligence requirement from the statute, making it quite a suspect factor to include. More tellingly, though, Comey essentially suggests that people with political connections can never be prosecuted for grossly negligent behavior because the politically connected work for themselves and the current administration and do not exhibit disloyalty. In other words, only people without political power can be prosecuted under this statute, making it a weapon for attacking the politically disfavored.

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Conclusion

Like most of the over 4000 felonies created by the federal government, the laws regarding classified information should be substantially cut back or repealed because they facilitate overbroad, arbitrary, and severe prosecutions for relatively mundane behavior.

Clinton and others with political power receive an exemption from the laws to which they subject everybody else.

Yet, unlike Clinton, people with fewer political connections have been charged with and punished for far less substantially and systematically mishandling classified information than she did. For a long time, Clinton and her supporters have rebutted this double standard by asserting that Clinton’s emails had been retrospectively marked as classified. The Comey’s announcement that Clinton has been publicly lying on this point because emails were classified at the time now makes this double standard apparent.

As Comey says, “Prosecutors necessarily weigh a number of factors before deciding whether to bring charges,” which first and foremost includes the personal identity of the perpetrator. With political power, politicians insulate themselves from punishment so that, in contrast to James Madison’s claims in Federalist 57,  the law “will not have its full operation on themselves and their friends, as well as on the great mass of the society.”

From trivial offenses to crimes with more serious punishments, Clinton and others with political power receive an exemption from the laws to which they subject everybody else, allowing them to intrude on the computers of the great mass of the society while insulating their own from the public’s view.

 


Sean J. Rosenthal

Sean J. Rosenthal is an attorney in New York.

This article was originally published on FEE.org. Read the original article.