FBI Director James Comey announced today that the FBI has completed its investigation of Hillary Clinton’s use of a private email server during her tenure as Secretary of State. Even though the FBI found that she lied when she publicly denied emailing classified information, he said the FBI would be recommending that the Department of Justice not charge her with any crimes. Under the circumstances, the department will likely follow his investigation. Although the Bureau’s recommendation effectively ends the potential criminal case, it does not resolve the political controversy. With that in mind, let’s take a look at Comey’s findings.
Our investigation looked at whether there is evidence classified information was improperly stored or transmitted on that personal system, in violation of a federal statute making it a felony to mishandle classified information either intentionally or in a grossly negligent way, or a second statute making it a misdemeanor to knowingly remove classified information from appropriate systems or storage facilities.
From the group of 30,000 e-mails returned to the State Department, 110 e-mails in 52 e-mail chains have been determined by the owning agency to contain classified information at the time they were sent or received. Eight of those chains contained information that was Top Secret at the time they were sent; 36 chains contained Secret information at the time; and eight contained Confidential information, which is the lowest level of classification. Separate from those, about 2,000 additional e-mails were “up-classified” to make them Confidential; the information in those had not been classified at the time the e-mails were sent.
Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.
Having found no evidence of intentional misconduct, the critical question was whether her conduct constituted “gross negligence.” Comey found that it did not. Instead, he found that she and the other people in the email chain were “extremely careless.” What is the difference?
Gross negligence is a legal term with a specific meaning. It’s an objective test. A person acts in a grossly negligent manner if her conduct constitutes a “substantial deviation” from the legal duty to exercise due care when handling classified information compared to the conduct of a reasonable person in the same situation.
“Extremely careless” is a subjective test because it’s not based on a comparison to the conduct of a reasonable person. What may appear to be extremely careless conduct to one person may not appear to be be extremely careless to another. Depending on the circumstances, extremely careless conduct may or may not constitute gross negligent conduct. The relevant circumstances probably include:
(1) the number of people in the email chain who received and transmitted the classified information and whether they were authorized to possess it (they were);
(2) the nature of the information transmitted (we don’t know because it’s classified);
(3) whether the information was intercepted by unauthorized third parties (it probably wasn’t); and
(4) how widespread the practice was (Colin Powell and Condoleeza Rice also did it)
I believe James Comey decided against charging Hillary Clinton because in his opinion her extremely careless behavior did not rise to the level of intentional or grossly negligent behavior.
I generally agree with the caveat that I do not know who was in the chain and what information was transmitted. Due to the political aspects of this case, I believe it should ultimately be decided in the court of public opinion by the voters in November.
Whether voters will hold her accountable for lying when she denied transmitting classified information remains to be seen.