As I read the recent comments of FBI Director James Comey regarding his recommendation not to pursue criminal charges against Hillary ClintonHillary Diane Rodham ClintonO’Malley tells Dems not to fear Trump FBI informant gathered years of evidence on Russian push for US nuclear fuel deals, including Uranium One, memos show Pelosi blasts California Republicans for supporting tax bill MORE over the use of a private email server, I naturally wondered why an investigator was making final judgments on the interpretation of the law when that function has always been assigned first to the Department of Justice and U.S. Attorney.

In doing so, he ignored one statute (18 USC 793 (f) related to gross negligence — see the recent The Hill article on the execution of an Iranian spy) — apparently disregarded the knowing destruction of government documents, and then, perhaps of equal legal concern, he added the wrong mental state to the statute prohibiting knowing removal of classified documents with intent to retain them at an unauthorized location. (18 USC 1924).

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Specifically he required that the government prove “willfulness” or knowing violation of a specific law under 1924 before he would proceed against the improper removal of thousands of classified documents to her private Blackberry and server. 

Ignorance of the language of the actual statutes was thus a defense. In his congressional hearing he seemed to attribute this to DOJ. Although I have no doubt that some in DOJ, given the Department’s reputation for caution, might have gone overboard and asked for this mental state, it is not the law and was never applied that way in my 25 years as a federal prosecutor with the exception of tax, export and currency prosecutions.

The Fifth Circuit Court of Appeals 2016 pattern Jury Charge states that the use of the word “willfulness” in indictments when not required by the actual statute or case law “should be discouraged.” 18 USC 1924 and associated case law, as with most federal statutes, does not require willfulness. That is, ignorance of the law, as most people know, is not a defense.

It is enough that you acted with knowledge and intent. Of course it certainly helps with the jury if the defendant knew they were doing something wrong.

But as Mrs. Clinton had been briefed on procedures for handling classified documents and government records and ignored those briefings, and as she repeatedly lied publicly to cover her actions, there was plenty of evidence to convince a jury that she knew she was acting improperly. That would be enough for most “reasonable prosecutors.”

Why is this important? Well the next time someone makes a false statement to a bank, or someone they are soliciting by mail, or by email, or a gun dealer, or saws off a gun barrel or converts a single fire to an automatic, uses a weapon in technical violation of myriad laws and regulations, inappropriately effects interstate commerce in countless ways or commits anyone of a host of other major white collar federal crimes, remember that the logical defense will now be, “Even if I suspected it was probably wrong, I did not know I was violating a specific federal law."

As was the case with Hillary, because you cannot establish that I  'willfully' violated a known federal law ,you cannot proceed."  Proving this mental state would obviously be almost an impossible burden in many cases.

The author writes as one who battled and won in the courts against wealthy bank, wire and mail fraud defendants in the 1980s and 1990s who tried unsuccessfully to raise as a legal defense that in committing their wrongful acts they did not know they were violating a specific federal law.

Director Comey has revitalized that old argument and probably created a new one. By doing so has placed a new burden on federal prosecutors. Defense attorneys will now not just privately bemoan the fact that their client did not have Clinton privileges, but publicly argue that their client had never read and understood the statute under which they have been charged by the government.

They could actually start winning in federal court, but the rest of us will still never succeed arguing before the local JP that we actually did not read the stop or speed limit sign or never understood the nuances of the state's traffic regulations and thus never “willfully” violated the law.

Ron Sievert is a Professor at the Bush School of Government and Adjunct Professor at the University of Texas School of Law.


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