On Tuesday, FBI Director James Comey announced that he would not recommend obvious felon Hillary Clinton for indictment. His rationale: she didn’t have the requisite “intent” to move forward with a prosecution. Here was Comey’s conclusion:
Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent…. 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.
This logic relies on two facts, neither of which is in evidence: first, that the law requires intent; second, that even if the law did require intent, that intent would have to rise to the level of treasonable activity.
First, and most obviously, as I explained yesterday, that law simply does not require intent. Here is 18 USC 793(f), which Comey explicitly referenced:
Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—Shall be fined under this title or imprisoned not more than ten years, or both.
As former federal prosecutor Andy McCarthy points out, Hillary was clearly responsible for “gross negligence,” even by Comey’s admission:
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….The lack of intent to harm our country is irrelevant. People never intend the bad things that happen due to gross negligence.
But there’s another problem. Comey says that Hillary did not evidence “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 “efforts to obstruct justice.”
All three were present here.
“Intent” for purposes of committing a crime generally does not require intent to commit the final harm (specific intent). It requires intent to commit a criminal act (basic intent). For example, if you threw a rock into a crowd and it killed someone, you would likely be prosecuted for first-degree murder, even though you didn’t have specific intent to kill someone; you’d be guilty thanks to your intent to throw the rock.
Hillary clearly had intent to mishandle classified information – she did it, set up a private server to do it, and had her lawyers destroy emails on that server. Hillary also exposed vast quantities of material intentionally – that was intentional misconduct. She didn’t have to purposefully expose those materials so that a specific person would access them, as General David Petraeus did. She could just expose them purposely because she believed it was important to do so to protect her own privacy from government discovery. And as to obstruction of justice, Comey himself acknowledged, “It is also likely that there are other work-related e-mails that they did not produce to State and that we did not find elsewhere, and that are now gone because they deleted all e-mails they did not return to State, and the lawyers cleaned their devices in such a way as to preclude complete forensic recovery.”
Comey clearly didn’t obey the law here. But that was never going to happen. After all, we no longer live in a nation of laws. We live in a nation of Democratic rulers.