According to FBI Director, Hillary Clinton did everything that is required for a felony violation for Section 793(f) of the federal penal code (Title 18). Clinton had complete and lawful access to sensitive and highly classified information, and she nevertheless acted with negligence in removing it from where it belonged.
She then transmitted it and caused it to be sent to other people who did not have the classification to view it. This was in complete violation of her trust. Comey even noted that Clinton was very reckless and careless and it is likely that her actions led to communications being stolen from foreign intelligence organizations.
Still, Comey recommended that Clinton not be prosecuted for violating federal laws; he noted that there was no intent on her part to harm US interests. So, in order to give the secretary a pass, the FBI effectively revised federal law; it actually inserted a new intent element into the law that Congress never created.
The added element of intent does not even make sense. The point of having a federal law that criminalizes gross negligence is to stress that federal government officials have an obligation to carefully protect national defense secrets. When they do not carry this out due to gross negligence, then they are guilty of major wrongdoing. The lack of intent to harm the US is not relevant. Bad things are never intended when they occur due to gross negligence.
There also are other statutes that make it criminal to illegally remove and transmit highly classified material with intent to harm the US. Being not guilty of the second offense does not mean she is not guilty of first offense.
The F.B.I. director will appear before Congress to explain why he recommended no charges against Hillary Clinton https://t.co/CgSoSB9LT7
— NYT Politics (@nytpolitics) July 6, 2016
One of the most common tactics for criminal defense attorneys is to establish a straw man argument for the jury that the defendant never did or was accused of. The idea of this is to knock down a crime that was never alleged of doing but this may trick the jury into thinking that the defendant is innocent of the crime charged. Judges usually do not allow this to happen; innocence of a crime with which the person was not charged is irrelevant to the actual charges.
Some experts maintain that this is what the FBI did this week. It informed the American public that because Clinton did not have any intent to harm the country, she should not be prosecuted for a felony that requires NO proof that she intended to harm the US. At the same time, there could have been serious harm to our national security interests due to her negligent handling of sensitive information. Yet we have decided that she should not be prosecuted for seriously mishandling such information.
While FBI Director Comey enjoys a good reputation both personally and professionally, many think that the Clinton decision defies logic. They are not persuaded that Comey’s claim that no ‘reasonable’ prosecutor would bring the case based upon the FBI evidence. It would make one wonder: Why did Congress write the statute that criminalizes mishandling classified information with gross negligence? The reason is clearly to prevent the country being harmed.
So, a prosecutor might ask, was this statute clearly violated? If so, is it likely that the secretary harmed national security? If the answers to both questions are ‘yes,’ then most ‘reasonable’ prosecutors would probably bring the case.
About Federal Indictment
There often are news reports about someone being indicted on a federal crime charge, or the possibility of being indicted, as in the Clinton case. The media often makes it sound as if the person who is possibly being indicted could be guilty of a crime.
This is not the case. All an indictment means is that a grand jury has made a judgement that there is ‘probable cause’ to charge a person with committing a crime. This does not mean that the person is guilty of a crime.
A grand jury is a panel of regular citizens that are given the job of investigating possible criminal activity to see if a person suspected of a crime should be tried in a criminal court. If the federal prosecutor thinks that the person has committed a felony, then the prosecutor has to get the grand jury’s permission to continue with the case. The purpose of the grand jury system is to prevent an aggressive and unethical prosecutor from baselessly charging innocent people for crimes.
The job of the grand jury is to investigate possible criminal activity. The members of the grand jury hear witnesses and review any of the physical evidence of the possible crime. For the case to go further, the grand jury has to find ‘probable cause’ to charge the suspect. What that basically means is that there is sufficient evidence that a crime occurred.
In the Clinton case, whatever one’s opinion of the matter, Director Comey did not determine that there was sufficient evidence that a crime occurred, so she was not charged.