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July 5, 2016

Anyone eager to discuss what likely will be the highest-profile "declination" in federal criminal justice history?

James-comey-fbi-director_29603_ver1.0_1280_720Lots of smart people recognize and discuss in lots of ways the unique and uniquely important role that prosecutors play in the operation of modern US criminal justice systems, and one theme of a lot of recent commentary and analysis is how little information we generally have about how prosecutors make decisions about who and how to prosecute (and who not to prosecute) for various alleged wrongdoing.  In particular, it is sometimes said that too often we fail to even know about a decision and the decision-making process of a prosecutor to decline to bring charges after a significant criminal justice investigation.

I provide this context for anyone eager to discuss and debate this high-profile news as reported in this New York Times article headlined "F.B.I. Recommends No Charges Against Hillary Clinton for Use of Personal Email."  As source materials for anyone eager to discuss this recommended declination, here is the full text of today's statement by FBI Director James B. Comey on the Investigation of Secretary Hillary Clinton’s Use of a Personal E-Mail System."  It includes these key passages:

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....

While not the focus of our investigation, we also developed evidence that the security culture of the State Department in general, and with respect to use of unclassified e-mail systems in particular, was generally lacking in the kind of care for classified information found elsewhere in the government....

In our system, the prosecutors make the decisions about whether charges are appropriate based on evidence the FBI has helped collect. Although we don’t normally make public our recommendations to the prosecutors, we frequently make recommendations and engage in productive conversations with prosecutors about what resolution may be appropriate, given the evidence. In this case, given the importance of the matter, I think unusual transparency is in order.

Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past.

In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.

To be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences. To the contrary, those individuals are often subject to security or administrative sanctions. But that is not what we are deciding now.

As a result, although the Department of Justice makes final decisions on matters like this, we are expressing to Justice our view that no charges are appropriate in this case.

UPDATE:  The folks at Crime & Copnsequences already have this quartet of posts up discussing Comey's findings and statement: 

July 5, 2016 at 01:03 PM | Permalink


What bugs me about this choice is that once again it illustrates how Trump's criticism of the system as "rigged" is correct. Under Voisine a person can lose their right to a gun if they engage in reckless domestic violence. Elnois comes very close to declaring (and Alito does declare) that one can lose their first amendment rights due to reckless speech. So reckless behavior in the eyes of the law can lead to one losing one's first and second amendment rights.

Yet here we have the FBI stating that "no reasonable prosecutor" would indict Clinton over her "extremely careless" conduct.

Pardon my language but what. the. fuck. That is out of touch with the reality as it is known and experience by the overwhelming majority of Americans. It's this reality of a "two tiered" justice system that is the problem. It doesn't matter to me which way the cookie crumbles but it should crumble the same for the powerful and the powerless alike. It didn't and it doesn't and that is a shame.

Posted by: Daniel | Jul 5, 2016 1:33:27 PM

Comey is an embarrassment. He obviously thought that, well, Hillary shouldn't be indicted. She set up a system whereby Top Secret (SCI) stuff got on server that wasn't designed for classified info. Any normal person would have been prosecuted for far less and her Administration will prosecute people for far less. The descent into lawlessness continues apace.

Posted by: federalist | Jul 5, 2016 1:51:45 PM

Daniel: What it takes to prove the elements of an offense is a completely different thing then what you are talking about. Assuming for the moment that the FBI sincerely found no evidence of intent, you need to identify an applicable federal statute that only requires a reckless level of mens rea under which Clinton could be prosecuted. Can you find one? I couldn't.

The possibility that the evidence would actaully show intent, but the FBI has been hamstrung by political factors, is a different concern.

It is also legitimate to ponder whether Clinton's recklessness should end her political career.

Posted by: USPO | Jul 5, 2016 1:53:01 PM


When intent is in play there is no useful distinction between recklessness, negligence, or willfulness. People see what they want to see and when, as here, there is a vested political interest in the outcome of the case and the investigating party is not genuinely independent the question as to whether the evidence would show intent is not a "separate concern" but the exact same concern. This is a point Doug B. has made in the past when he has expressed his dislike for the word "element" as a concept. It is also the underlying point about why some people feel so passionately about mens rea reform.

Black people engage in reckless conduct. White people are simply negligent. GS employees engage in willful conduct. Section C employees are merely careless. How stupid do you really think people are? Or are you yourself that blind?

So don't come in here and play these shitty mens rea games where you can't find a law that punishes reckless conduct as an element of the offense. The FBI could find a law if they wanted to do so. They found one for Voisine. They found one for Elonis. They can damn sure find one for Clinton.


Posted by: Daniel | Jul 5, 2016 2:14:00 PM

The problem is that the "intent" thing is a smokescreen. What Comey is saying is that they didn't have the specific intent, which is not the standard.

Posted by: federalist | Jul 5, 2016 2:25:02 PM

The fact that political judgments are made regarding when to prosecute and that the various nuances of the lines here -- those words pop up in a range of basic laws -- is not a novel development to me. In various cases, the lines are applied badly, but sometimes at the end of the day there will be somewhat subjective lines drawn by humans. If everyone for which there is a possible reasonable grounds to prosecute -- though chances are it will be an uphill battle and/or a bad use of limited resources -- is prosecuted, we would have even more crowded prisons and dockets than we have now.

Trump is not a grand prophet at how "rigged" the system is. If some average Joe Smoe did some of things he did, they very might have got in more trouble. He's a member of the elite and can get away with more. There is also gambling in Casablanca. This non-prosecution is only exciting people because "Clinton" is involved. A law was specifically passed because of the dangers of domestic violence. Now, maybe Justice Sotomayor was right in Voisine, but the rule there was not applied to all crimes. So, yes, I'm not shocked that a technical crime involving handling emails might be handled differently in certain ways.

Posted by: Joe | Jul 5, 2016 3:14:49 PM

To be realistic, a high ranking government official (General Petraeus), willfully and intentionally disclosed classified material to his mistress and was permitted to plead to a misdemeanor. That outcome was due in part, I'm sure, to his long military service and otherwise clean record. I have no opinion either way about whether that was an appropriate outcome. By comparison, a reckless violation should therefore not result in criminal charges, but as the FBI notes, there are a host of other sanctions including loss of clearance that can occur. I don't think those will happen here either if Mrs. Clinton is elected, but that may also be fair if there is no evidence of a leak or other damage to national security interests.

Posted by: defendergirl | Jul 5, 2016 4:09:15 PM

When was the last time the FBI opined in public whether an indictment should be brought? Hmmm? Perhaps the FBI is a bit more easily controlled by political factors and partisanship (but not by much) than the US Attorneys.

Posted by: Fat Bastard | Jul 5, 2016 4:47:41 PM

@joe writes, "but sometimes at the end of the day there will be somewhat subjective lines drawn by humans."

Of course. I'm not arguing for the idea that decisions be made by some perfectly objective being because I don't believe such a being exists on earth. But that truth doesn't mean that all debate is foreclosed regarding the basis and the means by which those decisions are made. In this situation we have a government employee passing judgement upon a person who reasonably could be expected to be his future boss and whose decision to not prosecute is based chiefly on the fact that while she was naughty she just wasn't that naughty. That last part--that she was naught but that naughty--would carry a lot more weight with me if I thought Comey was an independent observer. He clearly is not.

Note that in saying Comey is not an independent observer I do not mean to imply that he is a politically partisan observer. No matter what he did the other side of the political aisle was going to kvetch. But there any many other ways that a person can lose their objectivity than partisan politics. Class is one. Wanting to get into the good graces of one's new boss is another.

Posted by: Daniel | Jul 5, 2016 5:44:50 PM

"technical crime" about emails. Joe, you're a fool. It's the classified info, stupid.

Posted by: federalist | Jul 5, 2016 5:49:23 PM

Daniel. With respect, you're wrong. Willful acts and reckless acts are not the same legally. There are statutes that only require reckless or better for conviction, and others that require willfulness. For God's sake the very case you bring up, Voisine, wouldn't exist if there wasn't generally a distinction. If you give me a PO box address, or an email address you don't mind sharing here, I'll send you 50 appellate case dealing with the fact that reckless and willful are not the same. And those will just be in the context of federal sentencing questions.

I realize that the ability to rage about this requires one to conflate intentional with reckless. That doesn't make it so. I can understand if you feel there is no difference morally, or that there shouldn't be a difference legally, or if you think the evidence here proves willful intent against Clinton. But there is a difference for many legal purposes and there is no attorney who will deny this.

Posted by: USPO | Jul 5, 2016 10:21:56 PM

Federal statutes are all public record. If you think the FBI could have found one, but chose not to, find it. Let's have a look. Wouldn't it be a feather in your cap to be smarter than the FBI? I'll be quite happy to laud you.

Posted by: USPO | Jul 5, 2016 10:25:32 PM

What you call "shitty mens rea games" lawyers and judges call ensuring constitutional rights. You're a millimeter away from lynch mob mentality.

Get it? LYNCH. It's wordplay. But also true.

Posted by: USPO | Jul 5, 2016 10:29:35 PM

"technical crime" about emails. Joe, you're a fool. It's the classified info, stupid."

A technical crime about emails dealing with classified information and other matters (so busy calling me stupid, skips over a major concern about record-keeping).

"In this situation we have a government employee passing judgement upon a person who reasonably could be expected to be his future boss and whose decision to not prosecute is based chiefly on the fact that while she was naughty she just wasn't that naughty."

Too much legal jargon here. The basic point -- and some of the coverage suggests he was "naughty" in how he handled things (in ways that put Clinton in a negative light -- some way to appeal to a future boss) -- is that though she did certain "naughty" things (like people often do), it didn't reach the degree a reasonable prosecutor would prosecute. This is a basic matter of line-drawing using the relevant tests. Standard stuff. On that front, UPO can handle the technical details.

Posted by: Joe | Jul 5, 2016 10:37:57 PM

"Daniel: What it takes to prove the elements of an offense is a completely different thing then what you are talking about. Assuming for the moment that the FBI sincerely found no evidence of intent, you need to identify an applicable federal statute that only requires a reckless level of mens rea under which Clinton could be prosecuted. Can you find one? I couldn't."

Here is one: 18 U.S.C. 793(f)(1) simply requires "gross negligence," it does not require intent. Gross negligence is the equivalent of "extreme carelessness," which Comey admitted Clinton acted with. There are reported cases of people being prosecuted for violating 18 U.S.C. 793(f) for their grossly negligent (but unintentional) behavior. See, e.g., United States v. Roller, 42 M.J. 264 (1995) (affirming 18 U.S.C. 793(f) conviction of a military serviceman who inadvertently placed classified materials in his gym bag and then took them home, which the court determined to be "gross negligence" as the statute required).

Posted by: Here's one | Jul 6, 2016 9:58:53 AM

Joe, you are willing to make yourself look like a fool for Hillary. Hillary skated because of who she is. I actually have experience dealing with classified info. There are specific requirements for handling, and forwarding emails onto servers not designed to have classified info is akin to taking notes from a SECRET briefing and taking the notes home. This isn't being "naughty"--this is a crime. Top Secret stuff isn't supposed to be on the homebrew server. Volitional acts put it there.

Posted by: federalist | Jul 6, 2016 10:55:16 AM

Ah yes, 18 USC 793(f). Gross Negligence is a specific legal term. Extreme recklessness is not. I am well aware that there are now dozens of think pieces discussing the idea that they are one in the same. But you can't prosecute someone that way. Should a grand jury have been given the opportunity to decide if there is probable cause that Clinton engaged in conscious and voluntary disregard likely to cause grave injury to person or property? Probably. Saying things using the correct words isn't just pedantry when you're talking about the practical application of law.

The thing that happened here that is bullshit is this: Comey's statement, and the FBI's decision to not recommend charges, appeared to hinge on factors that had nothing to do with the nature and quality of the evidence. He did not say there was insufficient evidence to show a crime by the probable cause standard. In fact, he basically said there was. He then got into considerations that are normally none of the FBI's business. Those issues are matters of prosecutorial discretion.

Posted by: USPO | Jul 6, 2016 12:19:22 PM

Lots of folks talking about classified info -- including some lawyers and media pundits -- don't seem to know much about it.

As an Air Force communication specialist in the late 1960s I quickly surmised that Top Secret must have been the default classification for info moving on secured lines. Virtually everything was marked Top Secret. It was somewhat rare to see items marked merely Classified or Secret. More troubling was the fact so much Top Secret info was common knowledge and/or identical to recent newspaper accounts...and therefore neither secret in any normal sense of the word nor capable of harming security if divulged.

Truly sensitive info typically was marked Eyes Only (for the intended recipient and no one else) or other similar designations making clear the information must be protected.

Of course that was long ago but recent stories about over-classification of government info suggest not much has changed. And maybe unsystematic, irrational, paranoid approaches to classifying government info are an undertold part of this story.

But for denial, delusion and pathological hatred of Hillary Clinton this would be the point at which rational people concluded yet another Hillary witch hunt collapsed in a manner similar to all the previous ones...mostly flash and spleen and hardly any substance.

Posted by: JohnK | Jul 6, 2016 2:06:49 PM

JohnK, you are a nitwit. 50 years ago? Really? And yes, things are classified even though things are in the papers. There's a difference between information that is probably right (to the outside observer) and information that is confirmed by the US Gov't.

"But for denial, delusion and pathological hatred of Hillary Clinton this would be the point at which rational people concluded yet another Hillary witch hunt collapsed in a manner similar to all the previous ones...mostly flash and spleen and hardly any substance."

No matter what you believe, it is undeniable that Clinton set up an email server so that the requirements of the Federal Records Act and FOIA could be circumvented. It's also undeniable that classified documents wound up on the server, and they got there by the volitional acts of someone. If TS/SCI info is found say in someone's bedroom, there is an investigation. Why wouldn't the same be true for Hillary?

You are a disgraceful hack who has embarrassed himself. Please continue using the moniker JohnK, so that everyone will know you're stupid and a hack.

Posted by: federalist | Jul 6, 2016 2:25:11 PM

I suppose Trump made it OK for folks like fascist federalist to bypass rational argument and go straight to ad hominem attack.

If you're aware of substantive changes since 1970 in security classifications or the way information gets classified -- as opposed to the sophistication of the technology used to store and move such information -- please enlighten.

Repeating the case against Hillary in incendiary, prosecutorial prose doesn't alter the fact the FBI saw no crimes in her actions. Or is Director Comey in on the conspiracy, too?

Then there's this: "ABC News detailed a final State Department investigation which concluded that past secretaries of state, including Colin Powell and Condoleezza Rice's immediate staff, "handled classified material on unclassified email systems."

Should Hillary's predecessors now be dragged through the mud and poked and prodded by the FBI for a year too?

If using the moniker JohnK reveals me as a stupid hack, what does the moniker federalist say about you?

Posted by: JohnK | Jul 6, 2016 5:23:07 PM

federalist, your ad hominem attacks are tiresome and off the wall. you're beginning to sound like S.C. Do we have to start reminding you to take your meds?

Posted by: anon | Jul 6, 2016 5:55:06 PM

JohnK, you confirm that you are an idiot. First off, yes I attacked you (so what)---but no, I did not "bypass rational argument." I pointed out that common knowledge things are often classified because the confirmation matters. (That's rational argument refuting your ignorant comment that stuff in the papers is, ipso facto, an example of overclassification.) Second, I responded to your "witch hunt" (by the way, that's ad hominem argument, just not directed at anyone) comment by pointing out that if TS/SCI info is found in a bedroom (i.e., outside of a secure location) there will be an investigation (i.e., not a witch hunt), so why not here? Guess you couldn't answer that.

As for 1970--um, I was a custodian for classified materials in the military. It decidedly isn't the case that most stuff is Top Secret. And I don't think you had SCI as a subclassification back in your day. "Eyes Only" isn't a classification methodology that was taught to me either. Certain radio traffic had instructions that it was to be read only by CO--and he could distribute, but that's not a classification marking. So it does look like things have changed.

And, of course, you never bother denying the FOIA/FRA issue, nor do you deny that seriously classified dox (TS/SCI) wound up on her server. From what I understand Condi/Powell's transgressions were very minor and few and far between, so that's a non-defense defense.

You are a partisan hack and a moron. You can cheerlead all you like for people like Hillary, but if she's elected, she can't make you unstupid. You are a useful idiot for people like her.

And "fascist"? Really??? I may be a lot of things, but fascist is definitely not one of them. I regard government as a "necessary evil" and that it should be "limited but effective", and my posts generally reflect that belief. "Fascist" actually describes where the Democratic Party has gone, e.g., the witch hunts against "deniers" and the desire to impose criminal penalties on disfavored political speech.

Were you always this stupid, or did you have to work at it?

Posted by: federalist | Jul 7, 2016 3:32:44 PM

federalist, I think a good herbal colon cleanse might be just the thing for you right now.

Posted by: Randy | Jul 7, 2016 7:26:20 PM

Hey Randy, point out something in this thread I said that was wrong. Oh you can't. So tell me, what's it like to go through life as a moron?

Posted by: federalist | Jul 7, 2016 9:42:35 PM

Federalist, stop acting liking a four-year old.

Posted by: anon2 | Jul 8, 2016 12:42:09 AM

anon, somehow I doubt a four year old could correctly identify that labeling the FBI investigation a "witch-hunt" is a species of ad hominem argument.

You're an idiot too. All you have is name-calling. I have talent, and I am not shy about calling out stupidity when I see it. JohnK is a dummy. Any fair reading of this back and forth shows it.

Posted by: federalist | Jul 8, 2016 9:43:36 AM

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