Sean J. Rosenthal  – Thursday, July 07, 2016 at the Foundation for Economic Education

BI 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) recklessness, and (iv) criminal/gross negligence.

Comey essentially suggests that people with political connections can never be prosecuted for grossly negligent behavior.

Purpose and knowledge usually, though not always, go together. Purpose requires an intent to perform the criminalized act, and knowledge requires a near-certain awareness that the act is being committed. In either case, purpose and knowledge require a much clearer sense of awareness than recklessness or gross negligence.

In contrast, recklessness requires grossly unreasonable behavior somewhat less than knowledge. With an even lower mental requirement, gross negligence requires a gross deviation from reasonable behavior without any intent to commit the crime or knowledge that it would result in the commission of the crime.

Thus, to violate this statute, Clinton did not have to intend for its improper dissemination, but merely had to engage in the grossly negligent handling of the confidential information…. read more here