WASHINGTON, D.C.—FBI Director James Comey acknowledged one crime that Hillary Clinton may have committed regarding the mishandling of classified information, but still says he will not recommend that the Justice Department should prosecute.
Federal law makes mishandling classified information a crime, as found in 18 U.S.C. § 793. There are eight paragraphs in that statute, specifying different ways that a person can violate this federal law and be convicted of committing a felony.
In Comey’s remarks, he said that Clinton’s conduct regarding her private email server was “extremely careless,” but that the FBI had insufficient evidence to prove that she intentionally or knowingly violated the law on this issue.
These are references to “scienter”—the mental component of a crime. Some crimes a person can commit without any knowledge about its criminality: If you commit the act, then you are guilty regardless of what you were thinking or should have been thinking at the moment.
But for laws that have a scienter component—which for crimes (as opposed to civil laws) is also called a mens rea component—there are four levels: The highest (and most difficult to prove) is a crime where you were committing a criminal act “intentionally” or “willfully.”
Second, under that, you can commit a crime “knowingly,” meaning that you did not intend to break the law, but you had actual knowledge that the action was illegal.
Third is to act “recklessly,” which is also referred to as “gross negligence,” meaning a wanton disregard for the law.
And fourth are acts committed “negligently,” meaning that a reasonable person should have known that the action was illegal.
When Comey said that Clinton acted with extreme carelessness, that’s a synonym for gross negligence. So any part of 18 U.S.C. § 793 with that scienter level would have been violated, if her actions fit that specific prohibition.
Various matters that investigators were looking into required a higher scienter. Section 793(d), for example, makes it a crime to “willfully” (i.e., intentionally) communicate, deliver, or transmit classified information to someone not authorized to receive it. Comey was saying that there was not enough evidence to prove that Clinton acted with that level of mens rea.
But what about § 793(f)? That provision 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, 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—
Shall be fined under this title or imprisoned not more than ten years, or both.
The key phrase there in the first clause is “through gross negligence.” That is the scienter level of recklessness. When Comey said Clinton’s actions were “extremely careless,” he wass saying she was grossly negligent.
If he was talking to Clinton permitting classified material on defense matters to be taken from secure storage, or “lost, stolen, abstracted, or destroyed,” then he admitted that the FBI has evidence that Clinton committed this felony (punishable by ten years in a federal prison). So the question would be whether the emails he was referring to during this part of his press conference where related to national defense. Since those emails are classified, we do not know.
But Comey went on to say that despite some evidence of criminal activity, given all the other factors involved, the FBI would not recommend prosecution for mishandling classified information. In other words, he invoked “prosecutorial discretion”—that all things considered, the case is not worth devoting the resources to make.
Nothing can be done to force prosecution. Law enforcement is a purely executive function, so Congress and the courts cannot command the FBI or Justice Department to move forward.
There are other potential crimes being investigated here, under the Records Act and other statutes. It’s also still possible that some of Clinton’s aides might be charged with misconduct. But none of those aides are running for president of the United States.
It is further possible that Clinton may yet be charged with a crime, if the rumors are true that the FBI is investigating possible public corruption at the Clinton Foundation, or other rumored investigations. But all that is speculation at this point.
If she is not charged, then Hillary Clinton will never answer to a court. But since she is running for the nation’s highest office, American voters can still decide whether to make her answer to them on November 8.
Ken Klukowski is senior legal editor at Breitbart News. Follow him @kenklukowski.