Explaining why he decided not to recommend criminal charges against Hillary Clinton in connection with her use of an unsecured private email server as secretary of state, FBI Director James Comey contrasts her "extremely careless" handling of "very sensitive, highly classified information" with the "clearly intentional and willful mishandling of classified information" that has prompted federal prosecution in other cases. But that distinction does not really explain why Comey decided "no reasonable prosecutor" would bring a case against Clinton, since one of the statutes guiding the FBI's investigation, 18 USC 793, makes it a felony to "mishandle classified information either intentionally or in a grossly negligent way" (emphasis added), as Comey himself notes at the beginning of yesterday's statement. Maybe Comey perceives a difference between extreme carelessness and gross negligence, but if so he never bothered to elucidate it.
Former New York City Mayor Rudy Giuliani, a Donald Trump supporter who was the U.S. attorney for the Southern District of New York during the Reagan administration, says Comey's description of Clinton's behavior plainly qualifies as a violation of 18 USC 793(f). "I'm shocked," Giuliani told NBC's Brian Williams yesterday, "because he clearly found a direct violation of 18 United States Code, Section 793, which does not require intent. It requires only gross negligence in the handling of anything relating to the national defense. He determined that she was 'extremely careless.' The definition of gross negligence under the law is extreme carelessness. It's the first definition that comes up in the law dictionary. It's the definition the judges give to juries when they charge injuries on gross negligence. Negligence equals carelessness. Gross negligence equals extreme carelessness. So that is a clear, absolutely unassailable violation of 18 United States Code, Section 793, which is not a minor statute. It carries 10 years in prison."
Maybe Comey agrees that what Clinton did amounted to gross negligence but thinks it would be hard to prove. That explanation also seems unsatisfying, since a jury might reasonably conclude, based on facts that are mostly uncontested, that Clinton violated 18 USC 793(f), although that conclusion might depend on expert testimony regarding the security risks created by her email choices.
More plausibly, Comey thinks that a case could be made but that attempting to do so would be unfair because the Justice Department has not previously treated this sort of carelessness as a felony. "Although there is evidence of potential violations of the statutes regarding the handling of classified information," he says, "our judgment is that no reasonable prosecutor would bring such a case. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person's actions, and how similar situations have been handled in the past."
The reference to intent is confusing, because it could be interpreted as describing the Justice Department's burden if it decided to charge Clinton with violating 18 USC 793, which (as Giuliani notes) does not require proof of intent. More likely Comey is referring to the DOJ's discretion in deciding whether to prosecute a case it would have a good chance of winning. "In looking back at our investigations into mishandling or removal of classified information," he says, "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."
The question, in other words, is not whether Clinton broke the law, or even whether federal prosecutors could prove beyond a reasonable doubt that she broke the law. The question is whether the Justice Department has chosen to prosecute similar cases in the past, and the answer depends on how you define similar. Wherever you come down on that issue, Comey's recommendation illustrates the vast discretion that sweeping laws like this one give federal prosecutors, empowering them to imprison people who even they think do not deserve that fate.
Addendum: In a Wall Street Journal op-ed piece, Former Attorney General Michael Mukasey—who, for what it's worth, is a prominent conservative critic of Trump—agrees with Giuliani that the facts outlined by Comey support a charge under 18 USC 793(f). He adds that a charge also would be justified under 18 USC 1924, which makes it a misdemeanor to "knowingly remove" classified material "with the intent to retain such documents or materials at an unauthorized location." Like the other statute, 18 USC 1924 does not require an intent to break the law—only an intent to keep classified material where it should not be. Comey seems to think Clinton's actions met that criterion. Regarding "seven e-mail chains concern matters that were classified at the Top Secret/Special Access Program level when they were sent and received," for example, he says, "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."