The Shoddy Legal Reasoning Used to Clear Clinton

FBI Director James Comey has chosen not to prosecute Hillary Clinton for her grossly negligent handling of classified information. His justifications for not recommending charges against Clinton shows how the political process privileges the well-connected relative to the rest of the population.

The Criminal Statute

If the Department of Justice charges Clinton for committing a felony, they would be charging her for violating 18 U.S.C. 793(f), which states:

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 . . . Shall be fined under this title or imprisoned not more than ten years, or both.

(emphasis added)

In criminal law, unless strict liability applies, a statute can require four distinct mental states (“mens rea”) to commit a crime: (i) purpose, (ii) knowledge, (iii)