Why Did the FBI Director Promote a Restrictive Reading of Federal Criminal Law?

FBI Director James Comey last week “indicted” the conduct of Hillary Clinton pertaining to her “extremely careless” treatment of national secrets.  But he recommended against the filing of criminal charges, citing the absence of intent as the reason.  Unsurprisingly, Attorney General Loretta Lynch quickly concurred.  Was this a legally appropriate decision?

 

The applicable federal statute is recited below:

Whoever, being entrusted or having lawful possession of any documents… 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.

I know that wasn’t an easy read.  But, note that “gross negligence” and knowledge (intent to bring about a risk to national defense) are alternate methods of violating this criminal law.

The FBI head claimed that since the Bureau’s investigation did not find evidence of intent, it was inappropriate to proceed further against Hillary Clinton.  He observed that, as a matter of usage, federal prosecutors brought charges with reference to this statute only if intent was provable.  The existence of “gross negligence” as an alternate basis was ignored.

His facts are simply wrong.  Critics have already noted that only a year ago, a naval reservist was convicted of violating the same statute without any allegation of wrongful intent. 

As an experienced defense attorney, I can tell you that the plain reality of criminal prosecutions is that the law is often expansively read – even stretched – to encompass targets (think of the spurious charges leveled against the Baltimore City police officers currently in court).

Thus, the practical effect of Director Comey’s decision was to suggest that even if there were legal grounds for charging Hillary Clinton, such should not be done.  Why did he take that position?  It is too simple to say that the FBI was merely doing the White House’s bidding.   James Comey, after all, was appointed to the Department of Justice as a Deputy Attorney General by President George W. Bush (but he was also given the FBI post by President Obama).

While it is certainly plausible that he was following the wishes of his political superiors, it also makes sense that Comey simply didn’t want to subject a presumptive presidential nominee, regardless of party, to criminal prosecution despite what evidence could be marshalled for it.

If one were to credit James Comey’s good faith, one would say that he was acting in what he thought was the nation’s best interest alone.

Ample skepticism, I’ll acknowledge, is understandable.