From listening to a bit of FBI Director James Comey’s testimony before the House Oversight Committee, it isn’t really hard to grasp what was behind the Federal B.I.’s no-prosecution recommendation in the case of Hillary Clinton. Here is the Bureau’s thinking in a nutshell: even though the Espionage Act sets forth gross negligence as the required mental state for a violation, the feds can’t prosecute everyone, so they have reserved prosecutions for specific-intent cases. If the Director’s summary of the FBI’s historic practice is correct, then the no-prosecution recommendation in Clinton’s case is consistent with that. Fair play.
What I don’t get are Comey’s repeated, totally gratuitous, and absurd general statements about the criminal law: that crimes generally require specific intent rather than negligence; even that criminal statutes requiring only negligence may be constitutionally infirm on that ground. If that were so, a lot of people currently serving time for involuntary manslaughter would be amazed.
Nor do I get the Director’s waffling on the question of whether Clinton violated the law. The answer to that question, assuming that Comey’s characterization of Clinton’s information-handling as “extremely careless” is accurate, would clearly be “yes.”
If I were making Comey’s case, I would ask and answer four simple questions:
Q1: Did Clinton violate the law?
A: Yes. The law requires gross negligence in handling information; she was grossly negligent.
Q2: Can federal prosecutors prosecute every violation of the law?
Q3: In light of that, how have federal prosecutors decided whom to prosecute?
A: By looking at whether the evidence further shows intent to violate the law, intent to cover up a violation, or intent to give confidential information to enemies.
Q4: Did Clinton violate the law in a manner that shows such intent?
Therefore, Clinton violated the law, but the FBI’s no-prosecution recommendation is consistent with the FBI’s and the Justice Department’s treatment of other persons who violated the law’s gross negligence standard. The kinds of violations Clinton committed have customarily been handled, not by criminal prosecution, but administratively within agencies.
Was that so hard?