After masterfully marshaling facts that showed Hillary Clinton was grossly negligent in mishandling the nation’s defense secrets – i.e., after demonstrating that she was patently indictable for a felony violation of federal law – Federal Bureau of Investigation Director James Comey recommended against prosecution. His rationale is even more difficult to justify on close examination than it appeared at first blush.
Director Comey contends that “no reasonable prosecutor” would bring a case due to the former Secretary of State’s purportedly benign intent. In point of fact, her intent – besides being very far from benign – is largely irrelevant: the criminal statute at issue, Section 793(f) of the federal penal code, merely requires proof that the defendant was grossly negligent – or, as Comey put it “extremely careless.” But more importantly, a reasonable prosecutor considering charges would not myopically obsess over Clinton’s state of mind. Far more weighty in the exercise of prosecutorial discretion would be two factors Comey did not cite at all in his presentation: (a) Congress’s purpose in criminalizing the grossly negligent mishandling of classified information, and (b) the harm actually done to the United States which, viewed from the perspective of the intelligence community underwritten by 50 billion American taxpayer dollars annually, was surely immense.
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