RUTHFULLY YOURS

FBI Director Comey’s legal theory that gross negligence is constitutionally suspect as a mens rea (state of mind) element of a criminal statute – such as Section 973(f) of the federal penal code, the statute at the heart of Hillary Clinton’s mishandling of classified information – was shown to be flawed by the questioning of Rep. Thomas Massie (R., Ken.).

Rep. Massie made the point (explained in my earlier post) that every state in the United States has a law criminalizing negligent homicide – i.e., causing death by negligent conduct in the absence of an intent to cause death. Director Comey quibbled over whether all 50 states have such laws (and I plead guilty to assuming this is the case but not taking the time to check it). Eventually, though, Comey acknowledged that, yes, it is very common for prosecutors to charge and courts to sustain negligent homicide cases in which there is no requirement to prove that the defendant intended the harm caused.

In earlier questioning, another member of the committee pointed out that there is strict liability – no need to prove intent to violate the law – in a number of petty offenses (e.g., speeding). But Comey replied that petty offenses were in a different category from grave offenses like mishandling classified information. While this is true, he extravagantly implied that what makes them different is that all serious offenses require proof of intent to cause harm.

Yet, as I pointed out earlier, homicide is a grave offense; yet, negligent homicide is routinely charged. Defendants are routinely convicted. Courts routinely uphold the convictions.

When Rep. Massie made this point, Director Comey’s response was that he was more familiar with the federal system, while negligent homicide cases are state offenses.

With due respect, that is a distinction without a difference. Director Comey is arguing that what purportedly makes a mere negligence standard impermissible in a statute defining a serious crime is the United States Constitution. If that were so, this principle would be consistently applied in both the federal and state systems.

I believe that if state negligent homicide statutes are constitutionally valid, then the federal statute criminalizing the grossly negligent mishandling of classified information is also constitutionally valid. That statute does not require proof beyond a reasonable doubt that the defendant intended to harm the United States. Congress did not write that element into the statute, and it is not the Justice Department’s place to add it – just as it would be wrong for a court to legislate it.