The FBI’s failure to recommend a Hillary prosecution: what’s “intent” got to do with it?
{NOTE: See my previous post today on certain other aspects of the Comey announcement. The present post deals with some of the legal issues.]
When I first read the Comey statement I wondered why he was talking so much about lack of intent. Was intent an element of the crime? In law, intent is sometimes relevant and sometimes not, and therefore it’s not just an idle question. The way a statute reads on the question of intent matters very much as to whether a prosecutor need worry about whether that element is present.
So I wanted to take a while to learn whether intent mattered in the case of Hillary Clinton and the emails. I knew that certain respected legal minds would be weighing in on this, and Andrew McCarthy has done so in record time:
There is no way of getting around this: According to Director James Comey (disclosure: a former colleague and longtime friend of mine), Hillary Clinton checked every box required for a felony violation of Section 793(f) of the federal penal code (Title 18): With lawful access to highly classified information she acted with gross negligence in removing and causing it to be removed it from its proper place of custody, and she transmitted it and caused it to be transmitted to others not authorized to have it, in patent violation of her trust. Director Comey even conceded that former Secretary Clinton was “extremely careless” and strongly suggested that her recklessness very likely led to communications (her own and those she corresponded with) being intercepted by foreign intelligence services.
Yet, Director Comey recommended against prosecution of the law violations he clearly found on the ground that there was no intent to harm the United States.
In essence, in order to give Mrs. Clinton a pass, the FBI rewrote the statute, inserting an intent element that Congress did not require.
I don’t see how it could be more clear than that. And that, to me, is the essence of the problem—not whether we’d like Clinton to be prosecuted, but whether she should have been prosecuted if you’re interested in the rule of law. As I said in my previous post, I believed the Comey decision would be political. It needn’t have been, but it was, and to have made a more objective decision based on the law rather than politics would have taken a much bigger person than James Comey—and I believe that such persons are rare, particularly in public life, but not just in public life.
McCarthy continues:
The added intent element [added by Comey], moreover, makes no sense: The point of having a statute that criminalizes gross negligence is to underscore that government officials have a special obligation to safeguard national defense secrets; when they fail to carry out that obligation due to gross negligence, they are guilty of serious wrongdoing. The lack of intent to harm our country is irrelevant. People never intend the bad things that happen due to gross negligence…
…[W]hat the FBI has done today [is to have] told the public that because Mrs. Clinton did not have intent to harm the United States we should not prosecute her on a felony that does not require proof of intent to harm the United States. Meanwhile, although there may have been profound harm to national security caused by her grossly negligent mishandling of classified information, we’ve decided she shouldn’t be prosecuted for grossly negligent mishandling of classified information.
I think highly of Jim Comey personally and professionally, but this makes no sense to me.
You can feel McCarthy’s pain in trying to reconcile what he knows of Comey’s integrity and what he also knows about the law and the gross insult to the law that was perpetrated today.
No way around it. FBI should have recommended a criminal referral. It was so odd for him to refer to extreme recklessness when the statute refers to gross negligence. They are essentially the same thing.
At best one can see Comey as saying it is up to voters to get rid of Hillary and here’s the road map.
July 5th is now a historic date.
In law, intent is sometimes relevant and sometimes not
In British law intent is required unless specifically not required. That is, laws don’t need to write in “intent is required” because it is assumed.
There are negligence charges to cover situations without intent.
My guess is US law continues on the same vein.
Of course, she probably had intent.
Neo,
Why do you think Comey laid out a clear legal fact pattern that he must have known would blatantly contradict his recommendation that there are no grounds to prosecute?
Chester Draws:
“Of course, she probably had intent.”
Gross negligence aside, McCarthy’s point about Comey imputing an intent element is more puzzling because of the markedly narrow scope of the imputed intent described by McCarthy.
Clinton and her staff clearly intended to circumvent the system’s protocols and safeguards. That intent isn’t addressed in the regulations?
“You can feel McCarthy’s pain in trying to reconcile what he knows of Comey’s integrity and what he also knows about the law and the gross insult to the law that was perpetrated today.”
There is nothing to reconcile. McCarthy was wrong about Comey’s integrity. A question: has Comey committed obstruction of justice?
Two points;
” With lawful access to highly classified information she acted with gross negligence in removing and causing it to be removed it from its proper place of custody, and she transmitted it and caused it to be transmitted to others not authorized to have it, in patent violation of her trust.”
Hillary Clinton did NOT act with ‘gross’ negligence. She acted with willful intent. Comey admitted that several times she was made aware (if not already aware) that she was engaged in illegal activity in having emails manually stripped of their gov. classifications and then sent to her private email account. It’s almost certain that she knew beforehand but it is proven that she knew almost from the start and thereafter acted with intent.
So even if we grant ‘intent’ as of relevance, she fails on that metric as well. And Comey knows it, making him a co-conspirator an obstruction of justice. That he doesn’t resign in shame reveals his utter lack of integrity and remorse. He’s willfully participating in a major cover up of multiple violations of our national security, which also makes him a traitor.
“You can feel McCarthy’s pain in trying to reconcile what he knows of Comey’s integrity”
McCarthy’s pain is NOT at an inability to reconcile what he ‘knows’ of Comey’s integrity. McCarthy’s pain is in his difficulty with admitting to himself, that a man he believed to have integrity has revealed himself, when push came to shove… as having none.
Eric:
Comey did NOT say there are no grounds to prosecute.
He said that he has decided not to prosecute, because it’s up to him, and a reason he gave is that most prosecutors wouldn’t have, either. He never quite explained that (I don’t think it’s true if the perp had been someone lower down), but for some reason he cited the lack of intent on Hillary’s part as a reason even though it’s not an element of the crime.
I believe he did it this way in an attempt (vain, in my eyes, but successful in the eyes of some other people, I’m sure) to preserve his reputation for integrity (and to justify it all in his own mind). For example, had he said Hillary did nothing wrong, that would be such on egregious lie on his part that he couldn’t justify it (being a man of at least some integrity). So he threaded the needle by saying yes, she did wrong (see, he says, I’m fair, it’s not a whitewash, I’m criticizing her harshly!!) but it doesn’t rise to the level of a reason to charge her (because “intent,” and even though intent isn’t necessary I won’t mention that, because I think to justify charging someone who is going to be the nominee of the Democratic Party I would have to have intent even though it’s not in the statute).
Geoffrey Britain:
I wasn’t meaning to say Comey had integrity or demonstrated it with this decision, but that McCarthy had previously known him to have had or considered him to have had integrity, and is having trouble letting of what he thought he knew. That is a painful process, and McCarthy is caught in that dreadful dilemma. He said they’ve been friends for many years; this is hard stuff to reconcile. It’s called cognitive dissonance, and it’s one of the most painful things to undergo.
They’re already calling Comey the John Roberts of law enforcement.
Yes neo, I know and were the ‘stakes’ not the very survival of the country, I would be more forgiving.
Whether they accept it or not, people in high positions of governance voluntarily subject themselves to evaluations by the highest of standards. Status must have its price or consequence has no meaning and tyranny will as a result, arise.
McCarthy knows full well what is at stake and realizes how close we are to the cliff’s edge. We can no longer afford to pretend otherwise and give those who reveal their true natures, the benefit of the doubt. At the very least, their actions should be verbally exposed.
Neo,
At least on the local level, ‘decline to prosecute’ ‘in the interests of justice’ is a usual part of prosecutorial discretion, but this looks like an abuse of that discretion. Arbitrarily adding an element is a flashing light.
Watered down charges are also usual at the local level, where incidents that could be prosecuted as felonies by the letter of the law are often disposed of as misdemeanors.
Which is to say, if accompanied with a reduced charge, say on the Petraeus level, Comey could have taken air out of the controversy despite the presentation of the same fact pattern. That wouldn’t have removed all the air, since Clinton’s violations are far worse than Petraeus’s violations, but rule of law would at least have been granted a nod and box check, probably enough for the politics to move on.
Not bringing any charges to go with the fact pattern that Comey laid out withholds any nod to rule of law and invites controversy. It shows a lot of confidence in the dominance of the Democrat-front Left over the Narrative contest for the zeitgeist of the activist game.
Eric:
I agree that it shows tremendous confidence. And why not? Things have been going their way in recent years.
As far as intent goes, please see this comment of mine. I agree that adding “intent” is a tremendous red flag, but Comey did not exactly say something like, “Well, we don’t have intent on the part of Hillary, and intent is an element of the crime.” As I read what he said, he was saying something like “well, there were many violations present, but I won’t recommend she be charged because she lacks intent.”
That may seem like a very nitpicky legalistic distinction, and it is. But instead of saying intent is an element of the crime, he’s saying it’s a factor he takes into account when using prosecutorial discretion about whether charges should be brought in this particular case or in “similar” [sic] cases.
Neo,
With Comey’s fact pattern, even if we accept his rationale regarding lack of ‘intent to harm the US’, there still should have been a long list of otherwise ‘lesser included’ elements to charge Clinton and her staff. At least on the Petraeus level.
The standards for handling classified material, especially at Clinton’s level, are not ‘no harm, no foul’. Like drunk driving or sex with a minor, Clinton’s violations should be prosecuted even if there were no demonstration of harm or intent to harm. Harm is imputed in the act itself and any cognizable harms related to the act add weight to the basic statutory weight of the violation.
Eric:
I agree.
Nor am I justifying Comey’s thinking or reasoning. I am merely trying to explain it.
“Nor am I justifying Comey’s thinking or reasoning. I am merely trying to explain it.” neo
It CANNOT be factually explained without admitting to its obstruction of justice.
I am with GB on this. McCarthy and his buddy Comey know Comey, for the personnel desire to remain within the in crowd, ducked and covered. Comey is just another brick in the wall of corruption.
Had Comey pushed for indictment, he first would’ve lost his job (and quite possibly been hounded for the rest of his life over it), then Lynch would’ve disregarded it anyway.
Comey’s approach of laying out an ironclad case, then refusing to indict gives the indication that he wants the public to be outraged over this.
Maybe he didn’t do his duty in a law-enforcement sense, but he didn’t exonerate her either.
The FBI’s failure to recommend a Hillary prosecution: what’s “intent” got to do with it?
We commoners are often told that “intent” doesn’t matter at all. “Ignorance of the law is no excuse.” I would think that would especially hold for someone who got admitted to the bar nearly 40 years ago.
I wonder if that would work as a defense next time I get pulled over for speeding: “I didn’t intend to speed!”
I would conjecture that Comey heard the sounds of Democratic knives being unsheathed and the revving up of the engines of character assassination, and realized that he liked his job and life in general.
Matt_SE,
Comey is the director of the FBI, after the AG, the senior law enforcement officer in the federal government. Comey has no power to indict, he does have the authority and in this case the responsibility to inform the AG that the evidence of the investigation indicates hrc should be indicted. Yes, he made the case, but then stated there is no case. He took an oath to protect and preserve and cast it aside for personnel gain.
To paraphrase, what does it profit a man to keep his job and lose his integrity?
Geoffrey Britain Says:
July 5th, 2016 at 5:16 pm
Yes neo, I know and were the ‘stakes’ not the very survival of the country, I would be more forgiving.
Whether they accept it or not, people in high positions of governance voluntarily subject themselves to evaluations by the highest of standards. Status must have its price or consequence has no meaning and tyranny will as a result, arise.
McCarthy knows full well what is at stake and realizes how close we are to the cliff’s edge. We can no longer afford to pretend otherwise and give those who reveal their true natures, the benefit of the doubt. At the very least, their actions should be verbally exposed.
* * * *
IMHO, there will be a reaction to this among “lesser lights of the law” at least equal to if not greater than the “Ferguson Effect” — the people making up the ranks of the FBI, CIA, Secret Service, military, and police have always been justly honored for their willingness to “take a bullet” for the people they are sworn to protect.
Comey just told them all “never mind.”
To paraphrase, what does it profit a man to keep his job and lose his integrity?
Lucifer, what people call Satan or the Devil, would know. Lucifer’s House, seems very regimented. Beezlebub, all those jurist lawyers from hell.
Ymarsakar Says:
July 5th, 2016 at 9:47 pm
To paraphrase, what does it profit a man to keep his job and lose his integrity?
* * *
For some people, the profit is not being executed by the King.
“And when we die, and you are sent to heaven for doing your conscience… and I am sent to hell for not doing mine, will you come with me, for fellowship?”
or, more to the point in re Comey:
“If we lived in a State where virtue was profitable, common sense would make us good, and greed would make us saintly. And we’d live like animals or angels in the happy land that /needs/ no heroes. But since in fact we see that avarice, anger, envy, pride, sloth, lust and stupidity commonly profit far beyond humility, chastity, fortitude, justice and thought, and have to choose, to be human at all… why then perhaps we /must/ stand fast a little –even at the risk of being heroes.”
― Robert Bolt, A Man for All Seasons
PS to neo: I like the way you parsed Comey’s statement in light of what a prosecutor could do (if so inclined) as opposed to what one should do (according to law and justice).
You might like to look at J. E. Dyer’s post on this (you already quoted most of the other ones I read today):
http://libertyunyielding.com/2016/07/05/now-obama-boosts-hillary-victory-lap-pre-coordinated-campaign-appearance/
“On the TV screen, I’m watching Obama and Hillary descend the stairway from the presidential jet in North Carolina. They’re at a Clinton campaign event, just hours after FBI Director James Comey announced this morning that there would be no charges recommended against Clinton — in spite of her culpable gross negligence with national security secrets.
The announcement of the joint campaign stop was first reported Monday afternoon, as far as I can tell. This means Obama knew at that point that there would be no charges recommended. It means he undoubtedly knew it early in the weekend, if not before, since this is his first major event after the holiday.
…
The unseemly haste here stands out like a pulsating neon sign in a desert night. It’s probably the most in-your-face aspect of this whole Hillary drama. …
By boosting Hillary mere hours after she gets a full walk from national-security felonies, which Comey clearly indicated she was guilty of, Obama shows exactly where he stands on law and order. He’s just been watching the clock for a scheduled, cavalier dismissal of law and order, in favor of politics.
Look, we knew this about both Obama and Hillary. We already knew they don’t care about law and order. But I’m still just a little amazed at their complete, unabashed disregard for the people’s sense of justice and propriety.
…
But they’re not even pretending anymore. This is where too many right-wing pundits get it wrong, when they say (as I’m hearing Michael Medved say this very minute) that the Comey announcement will be “very damaging” for Hillary’s campaign. How so, exactly? Is there anyone whose mind will be changed by it?
Clearly, the political judgment of Hillary and Obama is that they don’t even have to pay attention to it. Obama and Hillary are treating a years-long federal-agency investigation of actual wrongdoing as if it was just a political annoyance, something to now celebrate being shut of. …
The two pols are playing to their base, of course, which doesn’t care how many laws they break. They’re being who they are.
But it’s certainly food for thought for the rest of us, as Kurt Schlichter pointed out in his 4 July column at Townhall. The column’s title is “You Owe them Nothing — Not Respect, not Loyalty, not Obedience.” He’s right.”
This will not end well.
Perhaps the Donald can say, “See, she’s crooked without even trying! She screws up without even trying!”
AesopFan,
I was taught that I owe the powers that be absolutely nothing. I was taught that instead I should view them as my potential enemy. So they have proved that over and over again these past 8 years. When the protectors of the rule of law fail to protect the rule of law there is no rule of law. Unintended consequences, plan accordingly for your locality. Do so quietly on the hush-hush. A hammer is better than a 22, a sub sonic 22 is better than whatever caliber than you may prefer.
They know not what they will unleash.
Aesop Fan:
I agree that Obama and Clinton probably knew the decision well in advance. But so did I, pretty much, and so did most people.
Yes, maybe they were actually told it ahead of time, maybe the fix was in, etc. etc. etc.. It’s certainly more than possible. But I do not agree that one can conclude from their pre-planned appearance that they in fact did know the decision ahead of time.
This is why I say that. First of all, even had the FBI recommended her indictment, it doesn’t mean the indictment would occur; that’s the DOJ’s decision, and although Loretta Lynch said she’d abide by the recommendation she didn’t take an oath to do so. So they could have decided to appear together in the meantime anyway.
Secondly, even if Hillary was indicted, it is possible but not absolutely inevitable that she’d pull out of the campaign. I wouldn’t put it past her to stay in and dare the American people to continue to vote for her. Of course, Obama would have the option to cancel his planned joint appearance with her if he wanted to; he always retains that option. Planning a joint appearance in advance doesn’t mean he gives up that option. One has to plan things in advance, with alternate plans depending on what is announced. Even Hillary could have cancelled the appearance if she wanted to.
Nothing is set in stone. Even if they didn’t know the decision ahead of time, they (and most people) knew an indictment would be unlikely, and they could plan accordingly.
So it’s evidence of nothing, really. They may or may not have known the decision in advance.
The thing Comey said – that “no reasonable prosecutor” would bring charges:
Yeah, I get it.
One word: ” Arkancide “.
There seems to be a misconception that the Evil Empress could only be prosecuted for gross negligence under 18 USC 793(f). Not so, Espionage Act fans!
Under 793(d), intent is supplied by having “reason to believe COULD be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates . . to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it. . .”
No one could possibly say Hillary didn’t have reason to believe her e-mails could have been used to the injury of the United States or the advantage of a foreign nation. So every time she communicated (how do you unwillfully send an e-mail?) to one of her toadies who didn’t have the required clearance OR the specific need to know, she violated the statute.
She also violated this section when she failed to turn all of her e-mails back to the State Department.
BTW, her little buddies who received the e-mails violated 793(e), and the bunch of them together engaged in a conspiracy to violate the law under 793(g).
If there was any SIGINT in those e-mails, which, based on the fact that there was TS/SAP information found, there almost certainly was, she violated 18 USC 798, for another 10 year tour of a federal pen.
Then there’s 18 USC 1924, for which the intent necessary is to “knowingly remove[s] such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location,” but that only gets you a year in the slam. so who cares.
And my personal favorite is 18 USC 2071, which provides “[w]hoever, having the custody of any such record, . . . document, paper, or other thing, willfully and unlawfully conceals, removes . . . obliterates . . . or destroys the same” which gets Hillary AND her lawyers three years,” and — the best part — the perp “shall forfeit his office and be disqualified from holding any office under the United States.”
Even if that was the only one they prosecuted her under, dayenu – it would have been enough!
Oops! Second paragraph:
Under 793(d), intent is supplied by the violator having “reason to believe the information . . document. . .[etc.] COULD be used to the injury of the United States. . .
“…You can feel McCarthy’s pain in trying to reconcile what he knows of Comey’s integrity and what he also knows about the law and the gross insult to the law that was perpetrated today.”
What he thought he knew about Comey’s integrity.
Now he discovers Comey had none.
Look, we asked for this. As far as the majority of people are concerned Edward Snowden is a hero, and John Philip Cromwell is not.
http://dailycaller.com/2016/07/05/2015-doj-prosecutes-a-naval-reservist-for-mishandling-classified-info-without-malicious-intent/
You get granted a security clearance, you are held to a high standard.
Except if your name is Clinton.
Neo-neocon, I’m afraid I missed some of the things you said. About McCarthy’s disappointment.
Which may convince you I was a bad intel analyst. You can’t miss stuff. It happens but when it’s this obvious it’s malpractice. But I’ve never been this angry.
I may have to revise my opinion of Paul Ryan.
http://www.washingtontimes.com/news/2016/jul/5/paul-ryan-says-hillary-clinton-should-be-denied-in/
Nothing will come of this. But it was a B***y thing to say.
…or maybe Comey redelivered Mark Anthony’s poisoned funeral oration? Either way, we know what our government is made of. The question now is what we, the American people, are made of.
parker,
“When the protectors of the rule of law fail to protect the rule of law there is no rule of law. Unintended consequences, plan accordingly for your locality. Do so quietly on the hush-hush.”
Those who fail to plan, plan to fail. Those who refuse to face reality, cannot plan effectively. No plan survives contact with the enemy, which is why we must improvise and adapt to overcome.
“A hammer is better than a 22, a sub sonic 22 is better than whatever caliber than you may prefer.”
Surprise is the greatest tactical advantage. Weapons are NOT deadly, the mind is deadly… or not.
“They know not what they will unleash.”
Possibly but underestimating an enemy is often fatal. The Left has no moral boundaries it will not cross, thus its ruthlessness has no limit. The 1.7 BILLION illegal hollow point rounds of ammo and the 2700 light duty tanks the Feds have purchased indicate purpose and preparation.
The US Army INTERNMENT AND RESETTLEMENT OPERATIONS MANUAL and “U.S. Army Techniques Publication 3-39.33: Civil Disturbances”
Draw your own conclusions. IMO, the picture that emerges after connecting the dots is obvious, the writing on the wall equally so.
GB:
“The 1.7 BILLION illegal hollow point rounds of ammo and the 2700 light duty tanks the Feds have purchased indicate purpose and preparation.”
They are not “illegal” unless you are a JAG riding herd over the US armed forces. They are NOT illegal for civilians or law enforcement. Don’t exaggerate, it isn’t necessary.
OM,
No intention to exaggerate. After investigating the issue, I stand corrected, I was misinformed.
The only JHP that might be illegal under Geneva are 5.56mm and 7.62mm sizes.
Well, a .50 caliber has about the same effect on a torso anyways, as a JHP smaller sized munition.
The point of having JHP is to explode the insides of unarmored personnel targets. Like Civilians.