Tuesday, July 05, 2016
There is no way of getting around this: According to
Director James Comey (disclosure: a former colleague and longtime friend of
mine), Hillary Clinton checked every box required for a felony violation of
Section 793(f) of the federal penal code (Title 18): With lawful access to
highly classified information she acted with gross negligence in removing and
causing it to be removed it from its proper place of custody, and she
transmitted it and caused it to be transmitted to others not authorized to have
it, in patent violation of her trust. Director Comey even conceded that former
Secretary Clinton was “extremely careless” and strongly suggested that her
recklessness very likely led to communications (her own and those she
corresponded with) being intercepted by foreign intelligence services.
Yet, Director Comey recommended against prosecution of
the law violations he clearly found on the ground that there was no intent to
harm the United States.
In essence, in order to give Mrs. Clinton a pass, the FBI
rewrote the statute, inserting an intent element that Congress did not require.
The added intent element, moreover, makes no sense: The point of having a
statute that criminalizes gross negligence is to underscore
that government officials have a special obligation to safeguard national
defense secrets; when they fail to carry out that obligation due to gross
negligence, they are guilty of serious wrongdoing. The lack of intent to harm
our country is irrelevant. People never intend the bad things that happen due
to gross
negligence.
I would point out, moreover, that there are other
statutes that criminalize unlawfully removing and transmitting highly
classified information with intent to harm the United States. Being not guilty
(and, indeed, not even accused) of Offense B does not absolve a person of guilt
on Offense A, which she has committed.
It is a common tactic of defense lawyers in criminal trials to set up a straw-man for the jury: a crime the defendant has not committed. The idea is that by knocking down a crime the prosecution does not allege and cannot prove, the defense may confuse the jury into believing the defendant is not guilty of the crime charged. Judges generally do not allow such sleight-of-hand because innocence on an uncharged crime is irrelevant to the consideration of the crimes that actually have been charged.
It seems to me that this is what the FBI has done today.
It 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. Meanwhile, although there may have
been profound harm to national security caused by her grossly negligent
mishandling of classified information, we’ve decided she shouldn’t be prosecuted
for grossly negligent mishandling of classified information.
I think highly of Jim Comey personally and
professionally, but this makes no sense to me.
Finally, I was especially unpersuaded by Director Comey’s
claim that no reasonable prosecutor would bring a case based on the evidence
uncovered by the FBI. To my mind, a reasonable prosecutor would ask: Why did
Congress criminalize the mishandling of classified information through gross
negligence? The answer, obviously, is to prevent harm to national security. So
then the reasonable prosecutor asks: Was the statute clearly violated, and if
yes, is it likely that Mrs. Clinton’s conduct caused harm to national security?
If those two questions are answered in the affirmative, I believe many, if not
most, reasonable prosecutors would feel obliged to bring the case.
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