In a press conference at 11:00 AM EST on Tuesday, FBI Director James Comey announced that the FBI would not be recommending that the Department of Justice press charges against former Secretary of State and presidential candidate Hillary Clinton.
This is surprising for some, especially considering that Comey confirmed during the press conference that, despite Clinton’s repeated claims otherwise, she had in fact used her personal email system to transmit classified information across unsecured networks–including “top secret” information, the highest level of classification. According to Comey “none of those emails should have been on any unclassified system,” regardless of whether or not the information was actively marked as classified.
So, if Hillary’s misconduct was that blatant, why isn’t the FBI recommending that the DOJ press charges?
The reason Comey gave for not recommending that charges be pressed against Clinton was largely based on the context of Clinton’s actions and a lack of evidence expressing intent. According to Comey:
All the [previous] cases prosecuted involved some combination of clearly intentional and willful mishandling of classified information, or vast quantities of information 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.
Here, Comey is somewhat incorrect in his legal justification by relying so heavily on intentional and willful misconduct. Mens rea, meaning a guilty state of mind or a specific intent to break the law, is not required by all criminal statutes. Gross negligence, meaning a level of severe carelessness beyond that of a normally careless person, is also a trigger for some criminal statutes.
18 U.S.C. § 793(f), one of the statutes governing handling of classified defense information, is one such statute that requires a lower “gross negligence” threshhold for determining whether or not someone has violated the law. In part, it reads as follows:
(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…
Shall be fined under this title or imprisoned not more than ten years, or both. (Emphasis added)
We know that Clinton and her staff permitted classified materials to be transmitted outside of secured government networks, which were their “proper place of custody.” Further, Comey highlighted just how careless Clinton’s management of her email was:
[The emails’] presence is especially concerning because all of these emails were housed on unclassified, personal servers, not even supported by full time security staff like those found at agencies and departments of the U.S. Government–or even at with commercial email service like GMail.
It gets worse from there. According to Comey, the FBI’s investigation also revealed that the entire culture of the State Department during Clinton’s tenure was lax with regard to securing classified communications. FBI agents found evidence confirming that private email accounts held by those who Clinton actively communicated with were hacked. Further, Comey confirmed that Hillary used multiple unsecured mobile devices “in the territory of sophisticated adversaries,” suggesting that it was possible that her personal email accounts were also hacked merely because Hillary wanted the convenience of a Blackberry.
Again, I’m not the one who has to make that final judgment, but that information–just based on part of what Comey revealed during the Tuesday press conference–looks pretty damned grossly negligent.
Though the DOJ will ultimately decide whether or not charges are pressed, Comey’s recommendation–which is based on an incomplete analysis of the law–carries a great deal of weight for the future of this case. Further, current Attorney General Loretta Lynch’s previous announcement that she will accept whatever recommendation the FBI gives her office means that Comey’s recommendation may be the end of the case against Hillary.
This is a travesty, plain and simple. Because, as Andrew McCarthy wrote at National Review:
[The FBI] has told the public that because Mrs. Clinton did not have intent to harm the United States we should not prosecute her on a felony that does not require proof of intent to harm the United States.