JULY 14, 2016
On July 5, FBI Director James Comey announced that he was not going to recommend the filing of criminal charges against Hillary Clinton over her use of a private email server. Comey said there was insufficient evidence to show Clinton had malicious intent. Comey reasoned:
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… We do not see those things here.
Many commentators have criticized Comey’s decision, arguing the statute Clinton was accused of violating, 18 U.S.C. § 793(f), requires only “gross negligence,” not intent. Former federal prosecutor Andy McCarthy has gone so far as to say that replacing the words “gross negligence” with “intent” rewrites that statute to serve political ends.
McCarthy and others are mistaken. The issue of mens rea, or intent, is not as simple as it seems on the surface, and intent is the correct standard. Comey was right not to recommend filing charges and to base his decision on the absence of evidence that Clinton had the necessary intent.
Section 793(f) makes it a felony for any person “entrusted with… information relating to the national defense” to allow that information to be “removed from its proper place of custody” through “gross negligence.” On its face, the law does not appear to require intent, but it turns out the key phrase in 793(f) is not “gross negligence.” The key phrase is “related to the national defense.”
Section 793(f) is a subsection of the Espionage Act, a controversial statute enacted during World War I in order to combat efforts by German agents to undermine the American war effort. The Act has been amended and renumbered many times, but its core provisions have not substantively changed. The Espionage Act has only sparingly been used to file criminal charges, but when it has been used it is often in high-profile cases. Eugene Debs was jailed under the Espionage Act for anti-war activities during World War I. The Rosenbergs were charged under the Espionage Actwhen they sold nuclear secrets to the Soviet Union. More recently, both Chelsea Manning and Edward Snowden were charged under the Espionage Act for providing classified material to WikiLeaks.
The law has been controversial since its inception and prosecutions under the Act have been challenged as unconstitutional in several instances. The most famous of these cases is probably Schenck v. United States (1919), where the government charged two men with obstructing registration for the military draft by distributing leaflets urging young men not to register. The Supreme Court heard the case and unanimously upheld the convictions and the statute. It was in Schenck that Justice Oliver Wendell Holmes famously wrote that it is not protected speech to “yell fire in a crowded theater.”
But as time went by, feeling towards the Espionage Act began to sour. Later in 1919, the Supreme Court heard Abrams v. United States. That case involved the distribution of leaflets by anarchists who urged factory workers to refuse to participate in production of war materiel. In Abrams, the Court again upheld the convictions, but this time the decision was not unanimous. Holmes, who had written the majority opinion in Schenck, was one of the dissenters. Two years later, the Sedition Act, a 1918 amendment to the Espionage Act that imposed criminal sanctions for anti-war speech, was repealed by Congress in its entirety.
The Espionage Act was left on the books, however, in the years after the war it was used only sparingly. When it was used, it was often controversial because it resulted in prosecutions that civil libertarians believed infringed on press freedom and the right to political protest. Perhaps the most famous of these cases is the prosecution of Daniel Ellsberg for leaking the Pentagon papers The courts too grew wary of the Espionage Act and as a result their readings of it narrowed the scope of the law and limited when it could be used.
This helps provide context as to why James Comey insisted that intent was required to satisfy the requirement of 793(f). Even though the plain language of the statute reads “gross negligence,” the Supreme Court has essentially rewritten the statue to require intent to sustain a conviction.
In Gorin v. United States (1941), the Supreme Court heard a challenge to a conviction of a Navy intelligence official who sold classified material to the Soviet Union on Japanese intelligence operations in the United States. In that case, the defendant was charged with selling information “relating to the national defense” to a foreign power. The defendant argued on appeal that the phrase “relating to the national defense” was unconstitutionally vague, so much so that the defendant was deprived of the ability to predetermine whether his actions were a crime.
Justice Stanley Reed wrote the majority opinion and disagreed that the law was unconstitutionally vague, but only on the very narrow grounds that the law required “intent or reason to believe that the information to be obtained is to be used to the injury of the United States.” Only because the court read the law to require scienter, or bad faith, before a conviction could be sustained was the law constitutional. Otherwise, it would be too difficult for a defendant to know when exactly material related to the national defense. The court made clear that if the law criminalized the simple mishandling of classified information, it would not survive constitutional scrutiny, writing:
The sections are not simple prohibitions against obtaining or delivering to foreign powers information… relating to national defense. If this were the language, it would need to be tested by the inquiry as to whether it had double meaning or forced anyone, at his peril, to speculate as to whether certain actions violated the statute.
In other words, the defendant had to intend for his conduct to benefit a foreign power for his actions to violate 793(f).
Without the requirement of intent, the phrase “relating to the national defense” would be unconstitutionally vague. This reading of the statute has guided federal prosecutors ever since, which is why Comey based his decision not to file charges on Clinton’s lack of intent. This is also why no one has ever been convicted of violating 793(f) on a gross negligence theory.
Only one person has even been charged under a gross negligence theory: FBI Agent James Smith. Smith carried on a 20-year affair with a Chinese national who was suspected of spying for Beijing, and Smith would bring classified material to their trysts, behavior far more reckless than anything Clinton is accused of. But Smith was not convicted of violating 793(f). He struck a plea agreement that resulted in a conviction to the lesser charge of lying to federal agents. Smith was sentenced to three months of home confinement and served no jail time.
Members of the U.S. military have been charged with the negligent mishandling of classified material, but not under 793(f). Criminal charges in military court are brought under the Uniform Code of Military Justice, not the Espionage Act (although violations of the Espionage Act can be charged under Article 134 of the Uniform Code of Military Justice in military court). The military has extensive regulations that govern the handling of classified material and the failure to follow these regulations is a criminal offense. Negligence can result in a conviction under Article 92 because the test is whether the service member “knew or should have known” they were violating the regulation. But these rules do not apply to any civilian personnel at the State Department and can only be applied to DoD civilians in very limited circumstances.
Despite what may appear to be the plain meaning of 793(f), the negligent mishandling of classified material is not a civilian criminal offense. A civilian can face many consequences for negligently mishandling classified material, including the loss of their clearance and probably with it their employment, but they would not face criminal charges. For anyone who thinks negligence should be a crime their argument is not with Director Comey but with Justice Reed, the author of the Gorin opinion. Because of that decision, the correct standard is intent, not gross negligence, and the director was right not to recommend a criminal case.
John Ford is a former military prosecutor and a current reserve U.S. Army Judge Advocate. He now practices law in California. You can follow him on twitter at @johndouglasford.
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