RUTHFULLY YOURS

In questioning by Congressman Trey Gowdy (R., S.C.), Director Comey seemed to concede that the statute criminalizing the mishandling of classified information through gross negligence may well be constitutional. That cuts against his testimony throughout the hearing, during which he argued that prosecuting a serious offense without requiring proof of an intent to cause harm would violate American tradition and, quite possibly, the Constitution.

The director maintains, however, that using the statute to prosecute Mrs. Clinton would be inappropriate even if the statute is valid. This, he reasons, is because the statute has only been used once since its enactment in 1917. The idea is that using it against her would amount to unlawful selective prosecution.

I am puzzled by this argument for several reasons, but I will limit this post to just one of them: The fact that the statute has been used repeatedly in military prosecutions – and that at least one military court decision undermines arguments Director Comey has made about the state-of-mind proof required.

The military prosecutions for gross negligence in the mishandling of classified information were discussed by former Attorney General Michael Mukasey in a Wall Street Journal column following Director Comey’s press conference on Tuesday. While it is certainly true that the FBI does not handle such investigations, the military courts are part of the United States justice system. Military cases litigate many of the same statutes and precedents (especially, Supreme Court precedents) that are applicable in the civilian justice system.

One relevant military case, United States v. McGuinness, is from 1992 – hardly ancient history. It involved a navy operations specialist sentenced to two years’ confinement (and other penalties) because, over his years of service, he retained 311 “classified items” unsecured in his home. While he was charged under Section 793, it was not under subsection (f) – the subsection of the statute most relevant to Mrs. Clinton, involving the grossly negligent mishandling of classified information – but under subsection (e), which criminalizes willful mishandling of classified information. Nevertheless, the case is highly relevant to our consideration of Director Comey’s recommendation against prosecution.

The defendant in McGuinness claimed that he merely intended to keep the classified items as personal reference materials, not to improperly disseminate them. Thus, he contended that willfulness, the mens rea (state of mind) proof requirement in Section 793(e), was legally insufficient. It was not enough, he insisted, for the prosecution to prove he had knowingly violated a legal duty regarding the safekeeping of classified information; the government needed in addition to prove bad faith – meaning: that he intended to do harm.

Obviously, this is very similar to Director Comey’s theory that, in a Section 793(f) case, it is not enough for the prosecution to prove mere “gross negligence,” even though that’s what subsection (f) says. The director claims the statute should be read to require additional proof of an intent to cause harm.

In McGuinness, the U.S. Court of Military Appeals rejected the defendant’s claim, and it did so in a way that is instructive for our purposes. The judges explained that in Section 793 (part of the codification of the Espionage Act of 1917), Congress sought to establish a sliding scale of violations involving the mishandling of classified information. The first subsection – Sec. 793(a) – requires proof of “intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation.” Subsequent subsections – Sec. 793(d) and (e) – “require only that the accused act ‘willfully’” (i.e., in violation of a known legal duty, but not necessarily with intent to harm the U.S.). Finally, the court turned to the subsection at issue in Mrs. Clinton’s case: “Section 793(f) has an even lower threshold, punishing loss of classified materials through ‘gross negligence’ and punishing failing to promptly report a loss of classified materials.” (Emphasis added.)

Note that the judges matter-of-factly endorse Congress’s framework: There is no hint of a problem with the concept of employing the criminal law to punish a related series of national security offenses from the most serious, involving intent to harm the United States, down to the least serious, involving gross negligence. Within that framework, the court rejects the claim that the less serious offenses require proof of the higher criminal intent called for in the more serious offenses.

Clearly, Director Comey’s argument is analogous to the one the McGuinness Court rejects – i.e., that Congress mustn’t have meant what it said when it criminalized mere “gross negligence.” In positing his theory, Comey did not refer to this sliding statutory scale in which Section 793(f) is at the bottom. What McGuinness makes clear, though, is that Congress conceived a scale involving grades of misconduct and precisely meant to criminalize gross negligence at the bottom of it. If the mishandling of classified information involves more serious criminal intent, prosecutors should simply charge a more serious offense. Pace Director Comey, it is not as if all the different offenses in the series merge into one, with the least serious one requiring the most serious mental state.

The military prosecutions under Section 793(f) illustrate that to prosecute Mrs. Clinton for this offense would not be to single her out. Perhaps more significantly, the offenses for which comparatively low level military personnel have been prosecuted pale in seriousness compared to the offense of the former Secretary of State.

Mrs. Clinton set up her own unauthorized and non-secure communications system, well aware that the nation’s most sensitive classified information would likely be transmitted on it, in violation of laws and guidelines she was obliged to enforce as the head of one of the government’s most important departments. By contrast, as Judge Mukasey outlined, the military cases are “reported felony prosecutions of soldiers for putting copies of classified documents in a gym bag and then not returning them out of fear of discovery; placing classified documents in a friend’s desk drawer and forgetting them; tossing documents meant to be destroyed in a dumpster rather than in the appropriate facility.”

If we are truly worried about a double standard, how can it be that the prosecution of these military officials is appropriate but the former secretary of state has immunity?