For Any ‘Reasonable’ Prosecutor, Damage to National Security Would Outweigh ‘Extremely Careless’ Hillary’s (Largely Irrelevant) Intent by Andrew McCarthy
https://pjmedia.com/andrewmccarthy/2016/07/07/for-any-reasonable-prosecutor-damage-to-national-security-would-outweigh-extremely-careless-hillarys-largely-irrelevant-intent/
After masterfully marshaling facts that showed Hillary Clinton was grossly negligent in mishandling the nation’s defense secrets – i.e., after demonstrating that she was patently indictable for a felony violation of federal law – Federal Bureau of Investigation Director James Comey recommended against prosecution. His rationale is even more difficult to justify on close examination than it appeared at first blush.
Director Comey contends that “no reasonable prosecutor” would bring a case due to the former Secretary of State’s purportedly benign intent. In point of fact, her intent – besides being very far from benign – is largely irrelevant: the criminal statute at issue, Section 793(f) of the federal penal code, merely requires proof that the defendant was grossly negligent – or, as Comey put it “extremely careless.” But more importantly, a reasonable prosecutor considering charges would not myopically obsess over Clinton’s state of mind. Far more weighty in the exercise of prosecutorial discretion would be two factors Comey did not cite at all in his presentation: (a) Congress’s purpose in criminalizing the grossly negligent mishandling of classified information, and (b) the harm actually done to the United States which, viewed from the perspective of the intelligence community underwritten by 50 billion American taxpayer dollars annually, was surely immense.
Let’s dispense with the matter of Mrs. Clinton’s intent – a side issue that Director Comey magnified into the dispositive issue. Unlike most criminal statutes, the felony of grossly negligent mishandling of classified information does not call for prosecutors to prove that a defendant intended the harm done. It merely requires proof of gross negligence – which is no different from what Comey compellingly demonstrated was Clinton’s “extreme carelessness” in mishandling national defense secrets.
Consider an analogy: a car passenger tragically dies because the driver is texting behind the wheel. There is no need in the negligent homicide case to prove (and indeed, no possibility of proving) that the driver intended to cause harm to the passenger. The driver is guilty because she purposely engaged in the reckless conduct – texting while driving – that risked the grave and easily foreseeable danger.
Similarly, Mrs. Clinton’s may not have intended to cause harm. In fact, let’s for argument’s sake concede Comey’s premise that she did not intend to make classified information vulnerable to hostile hackers when she purposely caused its transfer from the government’s secure server system to her own woefully non-secure system. Still, the felony statute at issue does not call for proof that she intended the harm done to the United States. Prosecutors need only prove what Comey so ably outlined: Clinton purposely engaged in the reckless behavior – the installation and use of an impermissible and amateurishly non-secure, non-government server system – that made harm to the United States virtually inevitable.
Still, I want to move beyond the lawyerly parsing of mens rea to a more curious aspect of Director Comey’s reasoning. The director implausibly claimed that no reasonable prosecutor would charge Clinton based on the facts uncovered by the FBI. This, as he acknowledged, was not his call to make – prosecutorial discretion is ultimately exercised by the Justice Department lawyers, not the FBI. Yet, as a highly accomplished former prosecutor, Comey offered what he intimated was an exhaustive list of factors any “reasonable” prosecutor would weigh; then, upon weighing them, he determined that they decisively militated against indictment. CONTINUE AT SITE
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