Hillary Clinton

FBI Head Says Prosecuting Hillary Clinton for 'Gross Negligence' Would Be Unfair

James Comey says justice demands proof of criminal intent, even when the law doesn't.

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C-Span

Yesterday FBI Director James Comey clarified his rationale for concluding that "no reasonable prosecutor" would bring a case against Hillary Clinton for the mishandling of classified material that resulted from her decision to use private email servers as secretary of state. Testifying before the House Oversight and Government Reform Committee, Comey acknowledged that a conviction under 18 USC 793, which makes it a felony to permit the removal of classified information "from its proper place of custody," does not require proof that the defendant knew he was breaking the law. It is enough to show he allowed removal of the information "through gross negligence," meaning that (as Comey put it) the government need only prove he was "really, really careless beyond a reasonable doubt." Comey said he understands why people were puzzled by his apparent neglect of that provision. "I get that folks see disconnections, especially when they see a statute that says 'gross negligence,'" he said. "'Well, the director just said she was extremely careless. So how is that not prosecutable?'"

The short answer: It is prosecutable, but Comey believes it should not be prosecuted because people should not be charged with a crime when they may not have realized they were breaking the law. "In our system of law, there's a thing called mens rea," he said. "We don't want to put people in jail unless we prove that they knew they were doing something they shouldn't do. That is the characteristic of all the prosecutions involving mishandling of classified information." He said he was able to locate just one case prosecuted under the "gross negligence" provision of 18 USC 793 in the century since the law was passed, which shows federal prosecutors "have grave concerns about whether it's appropriate to prosecute somebody for gross negligence."

Comey conceded that an FBI employee who used a private, unsecured email server to tansmit classified information would face serious consequences, possibly including dismissal and permanent loss of his security clearance. But he denied that he cut Clinton slack because of her political position. He said "the recommendation was made the way you would want it to be, by people who didn't give a hoot about politics, who cared about what are the facts, what is the law, and how similar people, all people, have been treated in the past." Comey therefore rejected the idea that Clinton benefited from a double standard. "You know what would be a double standard?" he said. "If she were prosecuted for gross negligence."

Because he believes prosecutions based on gross negligence are inappropriate, Comey said, he did not see his task as determining whether Clinton's "extremely careless…handling of very sensitive, highly classified information," as he described it on Tuesday, fit that standard. But he left little doubt that it did. "My term 'extremely careless' is trying to be kind of an ordinary person," he explained yesterday. "That's a common-sense way of describing it: It sure looks real careless to me….She should have known not to send classified information….That's the definition of negligent. I think she was extremely careless. I think she was negligent. That, I could establish. What we can't establish is that she acted with the necessary criminal intent."

According to Comey, proof of criminal intent is necessary not because the statute requires it but because justice does. "I see evidence of great carelessness, but I do not see evidence that is sufficient to establish that Secretary Clinton or those with whom she was corresponding both talked about classified information on e-mail and knew when they did it they were doing something that was against the law," he said. "The protection we have as Americans is that the government in general, and in that statute in particular, has to prove before [it] can prosecute any of us that we did this thing that's forbidden by the law, and when we did it, we knew we were doing something that was unlawful. We don't have to know the code number, but [the government must show] that we knew we were doing something that was unlawful. That's the protection we have, one I have worked for very hard. When I was in the private sector, I did a lot of work with the Chamber of Commerce to stop the criminalization of negligence in the United States."

It is heartening to hear the head of the FBI, who also has served as a U.S. attorney and deputy attorney general, defend this principle, especially at a time when his colleagues at the Justice Department are fighting mens rea reform on the grounds that it would make convictions harder to obtain. The principle is worth defending, even if it benefits Hillary Clinton.

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  1. Hey, the director the FBI admitted that Mens rea should at least factor into prosecutions, so I guess that counts as a libertarian moment.

    1. Except he apparently is, as a matter of law, wrong about it in this case.

      1. That and it’s only selectively applied to powerful people and is not afforded to us peons.

    2. only if you are one of the political elites.

      1. And happen to have enough leverage on the director of the FBI, apparently.

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  2. I still don’t see how this could be considered negligence. How long have these people been handling classified information? Did they never receive training on how to handle it? If they did then this wasn’t negligence.

    1. Yes, anyone with security clearance is required to undergo annual training on the proper handling of classified information. Also they have to sign that they took the training and they understand the consequences of mishandling such information. As I understand it she only signed it her first year in the State Dept. even through she is suppose to sign it after taking training each year.

      1. I trust Trump will mercilessly hammer on such facts during the debates.

        Repeatedly put H on the spot “explaining” her attitude to (and about) the American People.

        1. Hillary has NEVER dealt with the likes of Trump. I’m hoping that he can enrage her enough that she finally loses her shit in public and shows us the REAL Hillary.

          1. I cannot wait till the first debate between these two. I predict it turns into an episode of Jerry Springer five minutes in.

    2. Part of the standard proggie defense for months has been, “Well, even if it was wrong, she didn’t mean to do it!” Except the law actually allows for the punishment of gross negligence in this case; Comey’s basically giving the “FYTW” defense for why they didn’t pursue charges.

      But yeah, deliberately setting up a server that State never authorized for any use, much less classified information, and using it illegally for four years is clearly not a negligent act.

      1. she gave classified materials to those w/o the proper security clearance to receive them

      2. It’s not negligent, it was done with malicious intent.

    3. Accidentally setting up a private server to avoid any oversight?

      1. Don’t forget accidentally withholding emails from that should have been given to State and the big one, accidentally destroying the server when it was being sought as evidence.

          1. I knew what that link was going to be the moment I read it.

        1. Comey said he wasn’t looking at other violations of law, such as violating the Public Information Act, making false statements, under oath, to Congress or avoiding FOIA requests – all of which she plainly did.
          The exact point of the training these employees get on handling of classified materials is so that they can’t claim to be unaware that what they do is unlawful. Add to that, all the lies she has told, in public, to avoid being found to have done what she plainly did, which shows a consciousnesses of guilt
          And he let her walk, on all of it.
          He wasn’t “trying to be fair”, he was trying to avoid charging her with anything, and he succeeded.
          I have doubted all the claims about this guy being a “straight shooter” since the results of the IRS “investigation” came out, but here is more proof, it is absolute bullshit.

    4. I heard that as part of his testimony Comey said that Clinton wasn’t “sophisticated” enough to understand proper procedures for classified information.

      She’s too stupid, so let’s make her president.

  3. He said he was able to locate just one case prosecuted under the “gross negligence” provision of 18 USC 793 in the century since the law was passed, which shows federal prosecutors “have grave concerns about whether it’s appropriate to prosecute somebody for gross negligence.”

    No, it does not show that. Rarity of prosecution does not necessarily have anything to do with any such grave concerns.

    1. Would he apply the same ‘rarity’ standard to a Presidential assassination?

      There’s your answer.

    2. I think this shows that the only concern prosecutors, federal or otherwise, have is with their careers.

    3. Did Petraeus show a criminal mind when he showed his personal calendar to his biographer? He was prosecuted.

  4. That’s a common-sense way of describing it: It sure looks real careless to me….She should have known not to send classified information….That’s the definition of negligent. I think she was extremely careless. I think she was negligent. That, I could establish.

    Sounds good so far…

    What we can’t establish is that she acted with the necessary criminal intent.

    lolwhut?!?

  5. Yeah,sure.Try depositing cash from your business in the wrong amounts and see if intent matters.

    1. This.

      Or, as an even lesser example, speeding.

      1. Or making copyrighted material available online.

        The FBI has fucked up people’s lives for sharing goddamned movies over the Internet, but top secret data, go ahead share away…

        1. accidentally sharing movies?

          1. people who dont know how torrents or torrent clients work could very easily upload content they thoight they had merely downloaded.

    2. Try driving with a broken taillight.

    3. Or depositing cash in the wrong increments.

  6. It’s a shame decisions not to prosecute can’t be considered case law. I would love to see the FBI and Justice Department stuck having to live with this as precedent.

    1. Saw a story yesterday where lawyers defending people punished for violating security law were planning to use the Hillary defense on appeal….

      1. Let the lawsuits begin.

    2. You know these assholes always exempt themselves from what they inflict on the rest of us

  7. That’s swell and all, but cmon, she knew what she was doing.

    Also, I have the strong suspicion that the FBI will consider mens rea in precisely one case, and immediately go back to ignoring it in the thousands of other cases it is pursuing.

  8. According to Comey, proof of criminal intent is necessary not because the statute requires it but because justice does.

    It would be nice to think he means something more than just this one particular statute in this one particular case but I suspect it’s more like how the most ardent supporter of due process is a cop but only when it’s another cop under investigation. Has he by any chance got any personal records of declining to prosecute under this mens rea standard or just the general vague hand-waving about how “we have a history of doing that sort of thing”?

    1. “According to Comey, proof of criminal intent is necessary not because the statute requires it but because justice does.”

      Comey re-writes the law!

      Why not enforce it as written?

      Also, mens rea was established.

  9. “I do not see evidence that is sufficient to establish that Secretary Clinton or those with whom she was corresponding both talked about classified information on e-mail and knew when they did it they were doing something that was against the law,” he said.

    “There is none so blind as he who will not see.”

    Bullshit.

    1. That sure is a nice legalistic way of saying that Hillary and her people are incompetent dumbasses, isn’t it?

      1. “Madame Secretary, would you name the branches of the federal government? Yes, now. We’ll wait a minute while you think about it.”

  10. Hillary’s stream of “clarifications” about her email are a master class in passblocking.

    You don’t have to stop your man outright; you just have to deflect him long enough to get the pass away.

    1. What a great example!

  11. When I was in the private sector, I did a lot of work with the Chamber of Commerce to stop the criminalization of negligence in the United States.

    This is why former President Clinton felt safe telling Lynch to put this off on Comey to make the determination. He had an out. But this will be the first and last time anyone in the Department of Justice speaks of mens rea in a positive light.

  12. For some reason I don’t think the “unfair” standard applies to anyone who isn’t Hillary Clinton.

  13. Except to assert that she didn’t know she was breaking the law beggars belief.

    They TELL you explicity that classified info cannot ever be on an unsecured network. The lowest government drone is told that. People who don’t even have access to classified information are told that. You are made to sign forms indicating that you have been informed.

    Comey is lying to the public, and Congress, and he has destroyed his integrity forever. He is a mendacious crony. Or he was threatened. Or promised a reward.

    1. Or all of the above. And, he should watch his back and not assume they’ll make good on the deal.

    2. Except to assert that she didn’t know she was breaking the law beggars belief.

      It was interesting to watch Comey squirm as he chose his words on H’s “lack of sophistication” about classified.

      One of the Republicans should have asked “Director, are you saying Mrs. Clinton is *retarded*?”

      1. And then he said they didn’t try to check to see if she was lying.

        Just imagine, a crime has been committed, the person responsible is known, and law enforcement takes negligence as an excuse for a strict liability crime without even trying to determine if it was actual negligence!

    3. They TELL you explicity that classified info cannot ever be on an unsecured network

      I think his explanation amounted to Clinton not being knowledgeable enough about how email works to know this is what happened.

      1. Yet somehow she’s knowledgeable enough about how the nuclear triad works to be president.

        1. “I push da button!” – Plucky Duck or future president

        2. Why do you hate women?

    4. Exactly, anybody who has a clearance gets training. However, its worse with Hillary cause her office was in a goddamn SCIF. A fucking SCIF for christ’s sake. Handling classified information is an everyday thing is a SCIF.

  14. “As a member of law enforcement, your job is to enforce the laws as written. The job of finding ‘justice’ as you mention belongs to a judge and a jury. Not you.”

    I would have paid fiat currency to see someone tell Comey this on TV.

    1. The Republicans are not known as “The Stupid Party” for nothing.

  15. Fuck you Jimmy.

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    and fuck you too Reason. Had to make a break there

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  16. Well Mr. Coney, that’s a nice idea you’ve got there.

    And if what you say is true I NEVER EVER want to hear a law enforcement office or prosecutor say ever again that “ignorance of the law is no excuse” because you said yourself that we must MUST take into account the alleged offenders intent.

    It’s either that or there are two different levels of Justice, one hard to prove one for the powerful and one easy to prove one for the little people.

  17. “In our system of law, there’s a thing called mens rea,” he said.

    Yeah, sure there is….I think his full statement was something similar to: mens rea for we, but not for the.

  18. would face serious consequences, possibly including dismissal and permanent loss of his security clearance.

    Okay, let’s do that. Forget jailing her, just fire her from government and ban her from office that requires security clearance.

    1. The Repubs yesterday more or less tried to pin Comey down on this. He kept weaseling out with “part of the considerations” and “it depends” kinds of stuff. He even spewed the opinion that, since she’s not in government service, no consequences apply.

  19. There are plenty of prosecutions based on gross negligence that the FBI and DOJ believed were appropriate.

    But, so what? Hillary clearly had intent, as evidenced by the cover up.

  20. What a tool. Mens rea doesn’t require knowledge of the law, only wrongdoing in a broad sense, and she certainly knew she was breaking the rules.

    1. Hillary was schooled in the proper handling of classified documents when she became Sec of State. She knew what she was doing is illegal

      1. She should have been given similar training even as a Senator. Sitting members of the senate also have access to some classified materials.

  21. It would be awfully fair of him to resign for being such a manipulated patsy.

  22. Leave the man alone. Everyone one that crosses Killarney ends up dead.

  23. My question: Is Comey really so stupid as to believe the crap he’s peddling or, ala Gruber, does he think we’re stupid enough to believe the crap he’s peddling?

    1. The answer to both is NO- he just doesn’t give a shit

  24. Thanks to Comey, the American voting public will get to decide how much they care about Clinton’s e-mail situation. And that means whoever gets elected president will have enough credibility to govern effectively.

    Comey might have saved the country. He sacrificed his reputation and his career to keep the nation’s government credible.

    The FBI, Credibility, and Government

    I don’t agree. To me Comey is just another example of the government discrediting itself.

    1. Comey sacrificed his reputation and career to keep Hillary Clinton out of prison.

  25. Is Comey also a big proponent of jury nullification? It seems that he vigorously supports letting people who violate bad laws go free, and his standards for determining such cases don’t even require 12 randomly selected people to agree. Just one is, apparently, enough.

  26. I need to look up more information about the case The Judge brought up yesterday. The one about a Marine who was prosecuted for “accidentally” using his gmail account to send an email with classified info about Al Qaeda plants in their camp.

    It should be easy to dig up cases where mens rea was not considered and thus contradict Comey on his claim of finding only one case.

    1. I think it’s the case of Marine Reserves Major Jason Brezler. I haven’t yet read all the details of his case.

      Reason needs to do a very detailed analysis of cases like Brezler’s and others and get it printed.

      1. What difference does it make at this point?

        1. I think it’s that every opportunity to point out that the emperor has no clothes can be helpful.

  27. Were this the case, fine, I would begrudgingly agree. But I am so damn sick of hearing people call this “negligent” or “careless”. Her own documents have shown that the intent was there from day one. Instead of being CARELESS, she was extremely CAREFUL — careful that her official emails would not be subject to the law of the land, that is, scrutiny under FOIA. If there is malicious intent, the mens rea standard does not apply here. In other words, complete and utter bullshit from top to bottom from Comey.

  28. This is all a moot point because BOOOOSSSHHH admin did it first. Why weren’t you all screaming for Rice and Powell to get charged? You’re all a bunch of Republican sheep!

    /Tony

    1. Rice & Bush had their own servers in their basements? Wow, where were The Washington Post and the New York Times?

    2. Nate, what part of Free Minds AND Free Markets don’t you understand?

      1. I must be stupid because I have no idea what you’re getting at.
        Could you explain?

        1. Free Minds and Free Markets is the Reason motto. Lots of republicans wander in here pleased by the lack of communists (commies are repelled by Free Markets). But those same conservatives are disappointed to find that Klansmen, fetus forfeiture zealots and Nationalsocialists are not represented here either (coercive brainwashing is incompatible with Free Minds). Like Arlo Guthrie, who turned himself in for littering in the Alice’s Restaurant Massacre, conservatives fail to realize there is a THIRD POSSIBILITY that not collectivist, not looter and neither dictatorial nor warmongering. We are the Libertarian Party and we’d be tickled to have your vote for out ticket this coming election. Anyone can read the platform at LP.org

          1. Oh fuck off. You Goddamn wacko, and your weirdo ramblings about the GOP and abortion that you manage to insert into every fucking comment thread. Just fuck off.

          2. So what the hell does that have to do with me poking fun at Tony for his insessent “But Bush did it first” crap?

            And if you’re implying that I’m a conservative or a Republican for doing so, you can kindly fuck off.

    3. If it where up to me. We would go after Rice and Powell as well. The best way to get rid of a bad law is to enforce it to the highest degree possible. Once the big fish start getting caught up in it. They will change it.

  29. Scott Adams agrees with Jacob on the grounds that voters, not some FBI enforcer of victimless crime laws, should decide whether the emails were important. Thanks to victimless “criminal” Julian Assange, voters can actually READ those emails. They show the federal government, blindsided by Bush Administration use of police nationwide as asset-forfeiture looters wrecking the economy, desperately exporting through treaties the same prohibition and tax policies that ruined us in the Herbert Hoover administration. Why?
    If foreign governments predictably commit financial suicide, U.S: investors can recoup their losses by shorting those foreign currency and securities markets. It worked. The US recovered and everyone else is broke.

    1. Scott Adams agrees with Jacob on the grounds that voters, not some FBI enforcer of victimless crime laws, should decide whether the emails were important.

      So, (lynch) mob rule, not rule of law? Consequences should be determined, not by what the statutes actually say, but by what a majority of people say they want?

      No thanks.

    2. That’s a very bad idea. Unless you have a special ballot issue (imagines the Colosseum filled with people with thumbs down), this gets conflated with unrelated issues. And does this apply to all of us? Wait until my next election, judge.

  30. After listening to his testimony, I’m 99.999% sure he could have made the case that there was intent. But, it seems to me, just like other ‘investigations’ against government officials, they didn’t really try very hard. To not even review testimony given under oath in regard to the very case you are investigating is dereliction of duty in my opinion. I think he’s using the mens rea argument as a straw man in this case.

  31. WooHoo!! So drunk driving is legal again. I mean getting blackout drunk then driving down the road isn’t intending to cause harm, it’s just grossly negligent.

  32. The only way mens rea reform will get any traction is if people like HRC are prosecuted in cases like this. These people like HRC and the rest of the establishment need to feel the pain they cause so many others who do not get the benefit of such prosecutorial discretion.

  33. Hillary knew she was breaking the law. She rolled the dice that she wouldn’t harm national security while hiding her activities from oversight.

  34. RE: FBI Head Says Prosecuting Hillary Clinton for ‘Gross Negligence’ Would Be Unfair
    James Comey says justice demands proof of criminal intent, even when the law doesn’t.

    Of course prosecuting Heil Hitlary would be unfair.
    She is one of the key ruling elites that help fuel the engine of the Great People’s Revolution.
    No can doubt if she is prosecuted, her campaign to be the Secretary General of our beloved socialist slave state would be greatly crippled.
    Therefore, logic dictates the rule of law must not be employed if we are to have great leaders to guide us into a socialist paradise.
    Sacrifices must be made for the sake of the collective, and turning a blind eye to the incompetence and/or lawbreaking by one of obvious betters must be allowed if we are to be as a great a nation as Cuba, North Korea or Venezuela.
    Who amongst us is to be so blind as to disagree?

  35. From FBI Director Comey, “prosecuting Hillary Clinton for gross negligence would be unfair”. He actually said that, amazing, absolutely amazing. That being said, were it John or Jane Q. Public who was guilty of such “gross negligence”, would he or she get the benefit of such largess, I think not, but then I’m a suspicious old man, one who still insists that two plus two are four, nothing else, and to hell with current fashions, such as they might be. The Ca Ca del Torro level is simply to damned high.

  36. Let’s not look a gift horse in the mouth. The Director of the FBI says “mens rea” is necessary before prosecuting a crime. Fine. So carrying a gun within an arbitrarily-defined “school zone” needs to show that the accused knew it was a school zone. Having a gun in carry-on bad while passing through a TSA airport security check point needs to prove that your claim you didn’t know the gun was still in the bag is false.

    There are all sorts of laws where “strict liability” negates the prosecution needing to prove intent to the jury.

    Now the FBI Director says “no reasonable prosecutor” can bring such a case.

    Yes!

    1. You are, of course, ignoring the far more likely possibility: unreasonable prosecutors.

  37. I agree that we have far too many laws on the books which impose criminality without mens rea. There should be few, if any, such laws. But it’s the job of Congress to change them, not of Comey to unilaterally impose that standard in this one specific case. He should take his arguments to Congress, and press for changes to the laws (although actually his FBI is doing precisely the opposite). But he swore an oath to uphold the Constitution and the laws as they are, not as he thinks they should be. If he can’t bring himself to do that he should resign.

    Comey is patently guilty of “high crimes and misdemeanors” (a little-understood phrase, but it basically refers to crimes peculiar to those with political power, such as dereliction of duty, perjury, abuse of authority, etc.). This is a textbook example of it. He should be impeached.

  38. Regarding security, intent absolutely is not required. Loose lips sink ships. Comey places his desire above justice.

  39. Taking time out from shredding the bill of rights, naturally the grotesque sadist Mr. Comey will ensure the election of his master.

    No man in American history hates liberty more than he does.

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