Friday, July 08, 2016

'Toontime: Crooks Versus Scofflaws

credit: Gary Varvel, Indianapolis Star
Wackydoodle sez: But you are reckless!

How "extremely careless" differs materially from the statutory standard of "grossly negligent" is almost too fine a distinction except for the rarefied atmosphere of Washington, DC in an election year.  What bothers US Person most about the FBI's recommendation of no prosecution for Ms. Clinton's refusal to abide by State Department communication security is that General David Petraeus was prosecuted for a similar mishandling of classified information.  Petraeus gave eight "black books" privately to Paula Broadwell, a journalist and mistress, who was writing about him. The books contained codes and classified information.  None of the classified information given out was used in Ms. Broadwell's subsequent biography of General Petraeus.  Nor was he running for President as the candidate of a major political party when he pled guilty to a misdemeanor.  Some commentators point to the fact that the General lied to investigators about his leak to account for different treatment.  However, the FBI noted that in some instances the former Secretary was less than straightforward and cooperative in their and the State Department's investigation of her.

It is undisputed that Petraeus' leak was intentional; he made that admission as part of his plea agreement.  Ms. Clinton's use of an insecure server to conduct official business was also intentional, even arrogant, but she did not intentionally leak classified information to her knowledge.  Eight email chains contained information classified "top secret", the highest classification; thirty-six contained "secret" information.  Because her leaks were digital, they had the potential of doing more harm since they could have been seen by state enemies without her knowledge or consent.

Further, the operative statute in both cases does not require mens rea of intentionality.  It does require a higher level of culpability than mere negligence (18USC1924).  In US Person's opinion the FBI director's own public statement that she was "extremely reckless" in her handling of classified information indicates her culpability rises above mere negligence.   It may be a more difficult case to prove, but is it justice to simply ignore the former Secretary's intentional breach of the public's trust by insisting she use her own insecure server to conduct public business, often while abroad? Not so much. She should have known that her private communications could contain classified information. Ordinary citizens have been prosecuted for less.