The “Gross Negligence” Claim About Clinton Emails That The FBI Specifically Rejected

FBI Director James Comey announced that he would not recommend criminal charges be filed against former Secretary of State Hillary Clinton for her use of a private email server. Right-wing media, echoing Republican National Committee Chairman Reince Priebus, soon baselessly accused Comey of excusing Clinton’s “gross negligence” in violation of the Espionage Act.

FBI Director James Comey Recommends No Charges Against Clinton, RNC Chair Falsely Claims Comey Accused Her Of “Gross Negligence” 

FBI Director James Comey Recommends No Charges Against Clinton. FBI Director James Comey announced on July 5 that he would not refer criminal charges to the Department of Justice relating to the investigation into Hillary Clinton’s use of a private email server while she served as secretary of state. The director added that although the secretary may have been “extremely careless,” the FBI determined it could not recommend a charge of a “felony to mishandle classified information either intentionally or in a grossly negligent way.” According to Comey, “In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.” [Statement by FBI Director James B. Comey on the Investigation of Secretary Hillary Clinton’s Use of a Personal E-Mail System, Federal Bureau of Investigation, 7/5/16]

RNC Chairman Reince Priebus: “Comey Defined @HillaryClinton’s Actions As Gross Negligence.” 

[, 7/5/16]

Right-Wing Media Run With Priebus’ Mischaracterization Of Comey’s Statement

National Review: According To Comey, Clinton “Acted With Gross Negligence,” And FBI Rewrote Federal Law To Let Her Off The Hook. National Review contributing editor Andrew McCarthy wrote that “there is no way of getting around” that Clinton “acted with gross negligence” regarding her emails, adding, “Director Comey even conceded that former Secretary Clinton was ‘extremely careless’” in her actions (emphasis original):

There is no way of getting around this: According to Director James Comey (disclosure: a former colleague and longtime friend of mine), Hillary Clinton checked every box required for a felony violation of Section 793(f) of the federal penal code (Title 18): With lawful access to highly classified information she acted with gross negligence in removing and causing it to be removed it from its proper place of custody, and she transmitted it and caused it to be transmitted to others not authorized to have it, in patent violation of her trust. Director Comey even conceded that former Secretary Clinton was “extremely careless” and strongly suggested that her recklessness very likely led to communications (her own and those she corresponded with) being intercepted by foreign intelligence services.

Yet, Director Comey recommended against prosecution of the law violations he clearly found on the ground that there was no intent to harm the United States.

In essence, in order to give Mrs. Clinton a pass, the FBI rewrote the statute, inserting an intent element that Congress did not require. The added intent element, moreover, makes no sense: The point of having a statute that criminalizes gross negligence is to underscore that government officials have a special obligation to safeguard national defense secrets; when they fail to carry out that obligation due to gross negligence, they are guilty of serious wrongdoing. The lack of intent to harm our country is irrelevant. People never intend the bad things that happen due to gross negligence. [National Review, 7/5/16]

Rudy Giuliani: “The Minute You Say Someone Is Extremely Careless, You Are Saying They’re Grossly Negligent.” Frequent Fox guest Rudy Giuliani claimed that “the first definition of gross negligence” in the dictionary is “being extremely careless.” Giuliani added that “the minute you say someone is extremely careless,” as Comey did, “you are saying they’re grossly negligent.” From the June 5 edition of Fox News’ The Real Story:

KIMBERLY GUILFOYLE (HOST): Director Comey has decided not to -- or in fact is saying that no reasonable prosecutor would recommend that this case would go forward against Hillary Clinton. Your thoughts? 

RUDY GIULIANI: My thoughts are that it would be unreasonable for a prosecutor not to go forward with it and almost an abdication of duty. What Elizabeth just laid under 18 USC section 793 is what we would call a no-brainer back in the U.S. attorney's office that Jim Comey belonged to, he was one of my assistants. It does not require intent, it just requires gross negligence. He said during his long statement that she was extremely careless. The first definition of gross negligence that comes up if you take out the legal dictionary is being extremely careless. 

GUILFOYLE: Yeah, and that’s the problem. People at home want to know, what is this distinction, is it a distinction without a difference? Because a lot of people hear this -- we're both former prosecutors. Why wouldn't it go forward? 

GIULIANI: The minute you say someone is extremely careless, you are saying they're grossly negligent. That is what a judge will charge a jury. The judge will charge a jury, has the government proven that she was extremely care -- what do we mean by gross negligence? We mean extremely careless. Regular negligence is not using the proper degree of care under the circumstances. Gross negligence is being extremely careless in exercising your responsibilities. That's what Jim Comey found. He then just didn't come to the conclusion that it's a violation of the statute. He came to the other conclusion. I think that's why he walked out, there's no way to square the two things. [Fox News, The Real Story, 7/6/15]

Fox’s Peter Johnson Jr.: Comey “Depict[ed], In My Mind, What Defines Gross Negligence.” On the July 5 edition of Fox News’ Outnumbered, Fox News contributor Peter Johnson, Jr stated that Director Comey was “parsing his words carefully”, and that Comey’s words communicated to Johnson “what defines gross negligence”:

MELISSA FRANCIS (HOST): I mean at the top when he laid out the case of everything that she had done and her team had done there were more details, there was more damning evidence in there than what had even been reported.

PETER JOHNSON JR.: That is absolutely correct. And Hillary Clinton really should be down on her knees at this very moment thanking her creator for avoiding an indictment. She came within a hair of an indictment based upon what Mr. Comey said this morning at this press conference. He talked about potential violations of statutes, he talked about extreme carelessness, he talked about dozens if not 100 or more top secret, secret, and confidential, classified emails that were found. He talked about thousands of emails that were not turned over by Secretary Clinton, that were destroyed by her lawyers without even looking at them. So in the end the FBI director said well, as a matter of judgement, as a matter of discretion, based on the fact that there was no real sense of espionage or disloyalty, that charges would not be brought. But what the FBI director did based on this extreme carelessness statement, and based upon this cavalcade of missteps, whether intentional or not, depicted a secretary running a culture totally unlike any department in the United States of America, with a total disregard of keeping secrets. And secrets in the secretary of state’s office mean lives very, very often. So this was an extraordinary day; the FBI director parsing words very carefully. But at the same time depicting, in my mind, what defines gross negligence under the law and could have put Hillary Clinton with an FBI charge, and information, and then an indictment by a grand jury. Incredible, incredible. [Fox News, Outnumbered, 7/5/16]

Fox Host Gregg Jarrett: Comey “Seemed To Contradict Himself And The Law.” On the July 5 edition of Fox News’ Happening Now, Fox host Gregg Jarrett claimed the phrase “extremely careless” “means something to lawyers and judges” since that phrase is how they describe “gross negligence”:

JON SCOTT (HOST): The tone of his news statement early on was quite negative and we learned some things about Hillary Clinton's email use that were even more damning than what we had been led to believe to this point, and yet the FBI director sums it up by saying we cannot find a case that would support bringing criminal charges. Your reaction. 

GREGG JARRETT: A lot of lawyers across America are really going to be puzzled and scratching their heads to make sense of what Director Comey said because he seemed to contradict himself and the law. He used the phrase seriously, or excuse me, extremely careless to describe Hillary Clinton's use of classified information on her private unauthorized email server. Well, that phrase means something to lawyers and judges. That is the phrase they use to explain what gross negligence is, and we can put the statute, the criminal statute up on the screen and I'll read, it's very short. 18 USC section 793-F, “whoever being entrusted with national security documents,” and that includes by the way classified information, “through gross negligence permits the same to be removed from its proper place of custody shall be fined under this title or imprisoned not more than 10 years, or both.” So the key phrase there is “gross negligence.” What is that? If you look up any standard jury instruction, or Black’s law dictionary for example, you’re going to find the definition of “gross negligence” is “extremely careless.” So the moment he said she was extremely careless, I think most lawyers probably thought well, he's obviously going to recommend criminal prosecution, and yet he did not. It's hard to understand. [Fox News, Happening Now, 7/5/16]

Fox’s Melissa Francis: “It Seemed Like He Was Saying We Have Found Gross Negligence.” On the July 5 edition of Fox News’ Outnumbered, host Melissa Francis asked Catherine Herridge if Comey’s use of the phrase “extremely careless” caught any attention, since “it seemed like he was saying we have found gross negligence.” Herridge confirmed “they found evidence” supporting that:

MELISSA FRANCIS (HOST): Catherine, let me start with a quick question to you and then I’ll let some other folks get in on it. He said that she was extremely careless, and when you use that phrase in legal terms, immediately your ears perk up because that is the definition of gross negligence. So it seemed like he was saying we have found gross negligence, which under the statute, would bring charges. And then he concluded otherwise. I mean, did I hear that right? Is that what you were hearing along the way too?

CATHERINE HERRIDGE: Well, what he laid out was their findings which was they found evidence of a possible mishandling of classified information which would be under the gross negligence statute and a subsection that does not require intent. Practically speaking, having intent is always better in these cases because it is cleaner from a prosecutor's standpoint, and that this was the findings of 15 months of painstakingly, as he said, going back through the systems and trying to sort of reconstruct or re-engineer -- as he said, it was like a jigsaw puzzle where the border had been taken away and pieces had been thrown on the floor, and it was their job to put it back together. [Fox News, Outnumbered, 7/5/16]

Jay Sekulow: Clinton’s Actions That Comey Called “Extremely Careless [Are] Gross Negligence.” Also from the July 5 edition of Fox News’ The Real Story, frequent Fox guest Jay Sekulow claimed that “extremely careless is gross negligence”, and that it “frankly is absurd” that Comey did not recommend charges be filed:

KIMBERLY GUILFOYLE (HOST): You just heard Rudy Giuliani weighing in on his analysis of what has transpired here. What is your take?

JAY SEKULOW: Well, I did the same thing that Rudy Giuliani did. I looked up the words “extremely careless” in the legal dictionaries and looked at the case law, and it became clear. Extremely careless is gross negligence. Gross negligence under the statute is a felony. So Jim Comey laid out -- and I have a lot of respect for Jim, but I'll tell you something -- the fix was in on this from the beginning. We saw the beginning of it last week when Bill Clinton entered Loretta Lynch's airplane. I have no idea what took place in there, maybe it was, get your wife in to get the testimony done, we're wrapping this thing up, because gross negligence is extreme carelessness, that is just fact. So the reality is, Jim Comey said there was a crime here, he just decided not to prosecute it. But he was clear, Kim, he said there was in fact, without any doubt, gross negligence, his wording, extreme carelessness, that is gross negligence under the law. That's a violation. That's a crime. This frankly is absurd and the American people have had one pulled on them. [Fox News, The Real Story, 7/5/16]

But Legal Experts Explain A “Gross Negligence” Finding Does Not Fit The Law Or These Facts

ABC’s Dan Abrams: Prosecuting Clinton Would “Warp The Intent And Interpretation” Of The Law. In February, ABC News’ legal analyst Dan Abrams explained that prosecuting Clinton for “gross negligence” regarding her emails “would … warp the intent and interpretation” of existing law, which requires both “intent” and “bad faith” to prove a violation of the Espionage Act:

Could an aggressive prosecutor argue that it was grossly negligent for her to run all of her emails out of her home server and that it included “national defense” information “removed from its proper place of custody?” Sure, but that would also warp the intent and interpretation of this Espionage Law without far more evidence than what we have today.

In 1941, the U.S. Supreme Court heard a case which challenged whether the phrase “national defense” in this Espionage Law was too vague and over-broad. The answer was no only because:

     “we find no uncertainty in this statute which deprives a person of the ability to predetermine whether a contemplated action is criminal under the provisions of this law. The obvious delimiting words in the statute are those requiring intent or reason to believe that the information to be obtained is to be used to the injury of the United States, or to the advantage of any foreign nation. This requires those prosecuted to have acted in bad faith.”

The Supreme Court clearly never envisioned a prosecution under the Espionage Act without “intent” to injure the United States and in “bad faith” (This was in reference to a different section of the same law but the point remains the same). Other courts have interpreted the phrase “national defense” narrowly as a direct result of the fact that on its face, the words seem so broad.

Furthermore, ”gross negligence” as a legal matter, doesn’t, and shouldn’t, just mean it was wrong or dumb or even just careless. Rather gross negligence is generally defined legally as:

     “A lack of care that demonstrates reckless disregard for the safety or lives of others, which is so great it appears to be a conscious violation of other people’s rights to safety. It is more than simple inadvertence….”

As Professor Laurie Levinson explained in the National Law Journal:

     “Politics aside, it is difficult to find prior cases where the unwise handling of classified information led to a federal indictment. For the last 20 years, the federal statutes have been used when there were intentional unauthorized disclosures. The Department of Justice appears to have gone after ‘leakers,’ but not bunglers.”

That is another critical point here. This Espionage Law clearly was never intended to address a Secretary of State using — foolishly or even improperly to maintain her privacy — a personal email server to send and receive emails. Inevitably, this novel use of the law would leave a political stink. Efforts to compare this situation to other cases that have been prosecuted also fail on the facts. [ABC News, 2/1/16]

Legal Expert Stephen Vladeck: Prosecuting Clinton For Gross Negligence “Would Have Been A Novel Application Of An Already Controversial Criminal Statute.” Stephen Vladeck, a national security law professor at the University of Texas, Austin, told Bloomberg that charges against Clinton were always “a real long-shot” because “we don’t have a criminal statute that generally prohibits the mishandling of government communications.” According to Vladeck, attempting to charge Clinton for that would have required “a novel application” of the Espionage Act:

Vladeck said he’d believed all along that the filing of any criminal charges against the presumptive Democratic presidential nominee was “a real long-shot,” even if Comey’s announcement underscored her carelessness in the handling of sensitive information.

“We don’t have a criminal statute that generally prohibits the mishandling of government communications,” or the mishandling of classified information, the professor said in an interview. “Maybe we should, but the FBI can only look at the laws that are on the books.”

The felony-level federal Espionage Act requires a showing of gross negligence, Vladeck said. “Simply using an unsecured system has never been understood to rise to that level,” he said. Charging Clinton under that law “would have been a novel application of an already controversial criminal statute.” [Bloomberg, 7/5/16]

Government Security Expert Steven Aftergood: Case Law Indicated “Threshold For Culpable Negligence” Was Not Met. As reported by The Washington Post’s Greg Sargent, experts indicated that “Clinton was never likely to be indicted, because no one has ever been prosecuted before in a situation similar to hers.” Steven Aftergood, a national security expert, pointed out that Comey’s review determined that “The threshold for culpable negligence is evidently higher than what was met in this case”:

Comey also took care to note in his statement that unlike in Clinton’s case, previous cases prosecuted involved either intentional mishandling of classified info; levels of disclosure that allowed for an inference of willful mishandling; signs of disloyalty to the U.S.; or some combination of those.

“Hillary Clinton was never likely to be indicted, because no one has ever been prosecuted before in a situation similar to hers,” Matthew Miller, a former spokesman for the Justice Department, tells me. “There’s never been a case where someone has been prosecuted where either gross negligence or willful intent weren’t completely obvious.”


Meanwhile, as Josh Gerstein recently detailed for Politico, a number of other previous prosecutions in cases like these really did contain some of elements that Comey today said are not present in the case of Clinton.

Steven Aftergood, an expert on government secrecy, tells me that the question of whether a “threshold for culpable negligence” has been cleared is “a judgment that is made in part by prosecutors based on previous cases.”

Aftergood concluded: “The threshold for culpable negligence is evidently higher than what was met in this case.” [The Washington Post, 7/5/16]