Justice Department Declines Prosecuting Hillary Clinton for Her Handling of Classified Emails -- What is your opinion?

On 5 July 2016 FBI Director James B. Comey recommended that the Justice Department not prosecute Hillary Clinton, former Secretary of State, for gross negligence in her handling of emails with classified content (Comey). The next day, on 6 July 2016, Attorney General Loretta Lynch declined to press charges against Clinton (Bradner).

In this HUB I provide (1) the relevant federal law on gross negligence in the handling of classified materials, (2) a legal explanation of "gross negligence," and (3) FBI Director Comey's statement on the FBI's findings from its investigation on Clinton's use of private email for receiving, storing, and sending classified materials.

In this HUB I offer no opinions of my own on the matter of Clinton's use of private email for State Department business. However, at the end, I invite the reader to give his or her opinion on the matter via poll questions and comments.

18 U.S.C. 793(f) 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) (Rosenthal)

Ken Lamance of legalmatch.com says that “Gross negligence is commonly defined as 'the failure to exercise even the slightest amount of care'.” He continues, “A person who is found guilty of gross negligence usually knows, or should have known of the danger involved in the conduct they performed. Gross negligence usually involves unintentional acts, but they can border on intentional conduct due to the reckless nature of the activity.”

On 5 July 2016 James B. Comey, Director of the FBI, made a statement concerning the FBI's investigation of Hillary Clinton's use of a personal e-email system while she was Secretary of State. He said that “110 e-mails in 52 e-mail chains have been determined by the owning agency to contain classified information at the time they were sent or received. Eight of those chains contained information that was Top Secret at the time they were sent; 36 chains contained Secret information at the time; and eight contained Confidential information.” (emphasis added)

He also said that while there is no evidence that “Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.” (emphasis added) And he added, “There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation.” (emphasis added) and that “None of these e-mails should have been on any kind of unclassified system.” (emphasis added.

On the subject of emails containing classified information being marked “classified” or not, Comey said that “even if information is not marked 'classified' in an e-mail, participants who know or should know that the subject matter is classified are still obligated to protect it.”(emphasis added)

Finally, Comey reported that there is evidence that “hostile actors gained access to the private commercial e-mail accounts of people with whom Secretary Clinton was in regular contact from her personal account” (emphasis added) and that she “used her personal e-mail extensively while outside the United States, including sending and receiving work-related e-mails in the territory of sophisticated adversaries” He concluded that “it is possible that hostile actors gained access to Secretary Clinton’s personal e-mail account.” (emphasis added)

After reporting on the findings of the FBI investigation, Comey recommended that the Justice department not prosecute Hillary Clinton.

(For "Works Cited" reference see Comey". For the statement by Comey on the FBI website, click here.)

Bradner, Eric. "AG Loretta Lynch declines to press charges against Clinton." CNN.COM: 6 July 2016. WEB. Retrieved 7 July 2016. http://www.cnn.com/2016/07/06/politics/loretta-lynch-hillary-clinton-emails-no-charges/

Comey, James B. "Statement by FBI Director James B. Comey on the Investigation of Secretary Hillary Clinton’s Use of a Personal E-Mail System." FBI: 5 July 2016. WEB. Retrieved 7 July 2016.https://www.fbi.gov/news/pressrel/press-releases/statement-by-fbi-director-james-b.-comey-on-the-investigation-of-secretary-hillary-clintons-use-of-a-personal-e-mail-system

LeMance, Ken. "What is Gross Negligence." legalmatch.com. Web. Retrievied 7 July 2016. http://www.legalmatch.com/law-library/article/what-is-gross-negligence.html

Rosenthal, Sean J. "The Shoddy Legal Reasoning Used to Clear Clinton" FEE.ORG: 7 July 2016. WEB. Retrieved 7 July 2016. https://fee.org/articles/the-shoddy-legal-reasoning-used-to-clear-clinton/