After all the fussing and feuding, one thing is certain: we are going to have a new director of the FBI.
One thing that is not certain, but is interesting to consider: will the new FBI director re-open the Clinton email investigation?
On July 5, 2016, then-FBI Director Comey publicly announced that, although former Secretary of State Hillary ClintonHillary Diane Rodham ClintonMeghan McCain: 'SNL' parodies made me feel like 'laughing stock of the country' Hill: Trump reelection would spur 'one constitutional crisis after another' Trump defends indicted GOP congressman MORE had been “extremely careless” in her “handling of very sensitive, highly classified information,” the FBI would nevertheless recommend to the Attorney General that there should be no criminal prosecution.
That announcement was made four months before Election Day 2016.
On October 28th, eleven days before the election, Mr. Comey disclosed that, because State Department emails were discovered on a computer owned by Clinton aide Huma Abedin and her now-estranged husband, disgraced former Congressman Anthony Weiner, the investigation had been re-opened.
Two days before Election Day, Mr. Comey announced that a review of the recently-discovered emails had not altered the FBI’s prior conclusion that there should be no criminal prosecution, and the investigation was again closed.
Once a new FBI director is in office, there will of course be intense, around-the-clock scrutiny of how he or she conducts the ongoing investigation into Russian interference in our last election and whether there was any collusion between Russian operatives and the Trump campaign.
That will no doubt be the new director’s first priority.
But, will the new director perhaps also want to take a fresh look at the facts that were uncovered by the Clinton email investigation?
A fresh look would be warranted, given the baffling analysis then-Director Comey offered in July of last year to justify his recommendation not to prosecute Mrs. Clinton.
The federal statute that is most directly relevant to Mrs. Clinton’s mishandling of emails is 18 U.S. Code Section 793(f), which provides: “Whoever, being entrusted with or having lawful possession or control of any document…relating to the national defense, …through gross negligence permits the same to be removed from its proper place of custody…Shall be fined under this title or imprisoned not more than ten years, or both.”
There is no dispute that the highly classified information that Mr. Comey said was found on Mrs. Clinton’s personal server included material “relating to the national defense” within the meaning of Section 793(f); nothing in Mr. Comey’s statement questions that fact.
There is also no dispute that Mrs. Clinton’s personal email server was not a “proper place of custody” for such highly classified information.
Mr. Comey himself asserted that “[n]one of these e-mails should have been on any kind of unclassified system, but their presence is especially concerning because all of these e-mails were housed on unclassified personal servers not even supported by full-time security staff[.]”
Indeed, then-Director Comey went on to characterize Mrs. Clinton and her colleagues as having been “extremely careless in their handling of very sensitive, highly classified information.”
Despite those damning factual findings, then-Director Comey recommended no prosecution. Why?
Mr. Comey’s answer is lack of evidence that Mrs. Clinton intended to violate the law. He said: “[W]e did not find clear evidence that Secretary Clinton…intended to violate laws governing the handling of classified information[.]”
He also said: “Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent.”
Earlier on I wrote that Mr. Comey’s explanation of his recommendation not to prosecute was “baffling.”
Here’s why: if you go back and look at Section 793(f), you’ll see very clearly that a violation of the statute does not require that anyone intend anything. Rather, a violation requires only that someone exercise gross negligence in improperly handling national defense information.
First-year law school students are taught that there is a crucial, fundamental difference between criminal statutes that are violated only if someone acts with the intent that some prohibited result be produced, and those that are violated if someone is grossly negligent, or merely negligent, without any intent that the prohibited result be produced. (There are even criminal statutes that impose strict liability: one can violate them without any particular state of mind at all.)
This is basic, hornbook law.
Mr. Comey says then-Secretary Clinton acted with “extreme carelessness” in mishandling classified information. Section 793(f) makes it a crime to exhibit “gross negligence” in mishandling classified information. Is there a difference?
I personally think there probably isn’t a materially significant difference, but I’m not sure. I am sure, however, that it was not proper for that question to be answered definitively by a director of the FBI. Nor was it proper for then-Attorney General Loretta Lynch to simply accept Mr. Comey’s determination, without exercising her own independent judgment.
A new director should correct Mr. Comey’s error by reopening the investigation to try to determine whether Mrs. Clinton was grossly negligent in mishandling classified information, and not whether she intentionally mishandled it. He or she should then make a recommendation (in private) to the new Attorney General, who should decide how to proceed.
These days, the marble halls of Congress echo with proclamations that no one is above the law. That is true of incumbent presidents. It is also true of former secretaries of state.
David E. Weisberg is an attorney and a member of the New York State bar. His writing has appeared in the Social Science Research Network and The Times of Israel.
The views expressed by contributors are their own and are not the views of The Hill.