A Permanent Stain on The Rule of Law

In the terrible shock and dismay in the wake of the FBI Director’s statement of this morning that there will be no recommendation of an indictment of Hillary Rodham Clinton, after listing every single element necessary for a conviction under 18 USCA 793(f), I decided to really show my age and actually check with the law, as we were taught to do when I was in the LSU Law School over a half-century ago. I say that while admitting, today for the first time, despite the sleaze and repugnance we have all seen in the ongoing Gong Show loosely referred to as the Presidential campaign, I think the American Rule of Law has been, if not fatally, severely damaged by this open and obvious display of corrupt influencing on the national stage.

As a preface to what my analysis of the applicable law shows me, if not Director Come(d)y and his 100 or more agents on this investigation who we were told if this day ever came, and if the report of the Bureau was against prosecution would rise up in righteous indignation and resign en masse (no resignations announced, righteous or otherwise as of mid-afternoon on this sad day in American history!), I would quote from a piece published on National Review Online by an expert whose analyses I have found most persuasive and well informed, Andrew McCarthy, who was a Federal prosecutor for many years in New York City and was leader of the team which successfully prosecuted “The Blind Sheik” for masterminding the first terror attack on the World Trade Center in the early ’90’s:

“There is no way of getting around this: According to Director James Comey (disclosure: a former colleague and longtime friend of mine), Hillary Clinton checked every box required for a felony violation of Section 793(f) of the federal penal code (Title 18): With lawful access to highly classified information she acted with gross negligence in removing and causing it to be removed it from its proper place of custody, and she transmitted it and caused it to be transmitted to others not authorized to have it, in patent violation of her trust. Director Comey even conceded that former Secretary Clinton was “extremely careless” and strongly suggested that her recklessness very likely led to communications (her own and those she corresponded with) being intercepted by foreign intelligence services. Yet, 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 added intent element, moreover, makes no sense: The point of having a statute that criminalizes gross negligence is to underscore that government officials have a special obligation to safeguard national defense secrets; when they fail to carry out that obligation due to gross negligence, they are guilty of serious wrongdoing. The lack of intent to harm our country is irrelevant. People never intend the bad things that happen due to gross negligence.”

Mr. McCarthy also noted that he was especially unpersuaded by Comey’s claim that “no reasonable prosecutor would bring a case” based upon the evidence he had outlined and he said he, as a prosecutor, would ask:”Why did Congress criminalize the mishandling of classified information through gross negligence” and that the answer to that question is, obviously, to prevent harm to national security. Then, the next question our reasonable prosecutor would naturally ask would be was the statute violated, and, if yes, is it likely that her conduct caused harm to national security? As he said, if those two questions are answered in the affirmative, many, if not most, reasonable prosecutors would feel obliged to bring the case.

Therefore, the next logical step for me, based on my apparently-now-outmoded approach to the law, which, after this morning’s sleazy, slimy, openly corrupt, statement by a person of whom I had the highest regard of anyone in Washington until a few hours ago, may be a dead letter in what used to be a government of laws not of men, was to carefully examine not only the specific provision everyone knows she violated but also the context in which it appears, i.e., other sections of the law in the same general area.

That analysis is truly eye-opening, as I hope to explain below. The specific provision, as Mr. McCarthy noted above, is 793(f), which is as follows:

“18 U.S. Code § 793 – Gathering, transmitting or losing defense information


“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.”

What is most interesting is that all preceding sections require a showing of “intent” in one form or other. For example,  Sections (a) and (b) use the word “intent”, while Sections (d) and (e) use the words “willful”, all clearly requiring that specific intent of the accused be shown. Section (c) uses the phrase “knowing or having reason to believe”, again, which connotes to me, at least, a requirement of intent based on prior knowledge.

Section (f) is the only one in the entire group of sections which uses the words “gross negligence”, which is as clear as evidence can be of an intent to write an entirely different standard into that particular section of the law.

Mr. Comey has enjoyed the reputation of being an outstanding lawyer and prosecutor before he became Director of the FBI. That he could stand there today and make the statements he made, directly in the teeth of the evidence he had just outlined, is almost embarrassingly corrupt and his (?) action today will leave a permanent stain on the Rule of Law in America and will soil its legitimacy for a very long time to come.

This is, to put it as mildly as I can without the use of much stronger language, a very sad day for America.



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