The Requirements of Law
Hillary Clinton Didn’t Commit Espionage, Sorry Guys
There are certain days when you just know the internet is going to blow up. Affirmative Action decision from SCOTUS? Bring out the racists. Abortion decision? Call out the pro-lifers. And then there is today: The day Hillary Clinton was found to have not committed any crimes by the FBI, who advised no charges be filed. Not just that, but that no charges be filed because no reasonable prosecutor would file such charges.
And the internet didn’t just explode, it EXPLODED. It T-REXPLODED. Whatever is higher than “everyone on the far left and middle to far right collectively lost every bit of their shit” is exactly what happened as every person on the internet decided they had a law degree and knew exactly what the FBI should have done instead.
But the problem is…they’re wrong. Today was a victory for the just application of the law as written. Today was a reminder that just because we may not like someone doesn’t make their conduct more or less illegal.
But how did this happen? How did we get to this point, when a year of talking head speculation said that there was a strong chance of an indictment?
The answer comes down to intent, and the different levels of intent required under the various statutes of the espionage act.
A Brief Reminder
In case you were living under a rock, this whole non-event has had to do with the use of a private email server by Hillary Clinton. The question is whether or not this violates various provisions of the espionage act because the server handled classified information. That’s the background.
In order to be convicted of a crime, there are two required portions. The first portion is an actus reus, or a guilty act—that is that there has to be some act that is proscribed by the law. The second requirement is mens rea, or a guilty mind—what we call intent. First off, it is important to distinguish intent from motive—in most cases the law doesn’t care why you did something, unless you did it for a reason that constitutes a defense to the law.
Intent is a requirement of nearly all crimes, but that doesn’t mean the intent is the same in every crime. The law recognizes three different levels of intent: General intent, specific intent, and strict liability.
General intent is what people think of when they think of intent, because it is the level of intent that gives rise to the phrase ignorantia juris non excusat—ignorance of the law is no excuse. General intent requires only that you intend to perform the act that causes harm, not that you intend to cause harm; thus if you throw a hatchet in to a crowd and hit someone you’ve committed battery (at a minimum) regardless of if you genuinely didn’t think you’d end up hatcheting someone in the face.
Strict liability crimes are a very small section of crimes, in that they don’t require any intent at all. These are generally traffic offenses (speeding doesn’t require intent), or statutory rape—statutory is the most famous one, where it doesn’t matter if you knew the other party was under 18 or even thought she was over 18.
Specific intent are those crimes which require a raised level of intent. You don’t just have to intend to commit the act that causes harm, you actually have to intend the harm itself. These are crimes which include the words ‘knowingly’ or ‘willfully’ most often. For example, specific intent is the difference between a murder and a manslaughter. Murder is an unlawful killing which requires malice aforethought (intent) or a depraved heart (which is reckless and intentional disregard for human life), while voluntary manslaughter is an unlawful killing without other excuse or defense. Murder requires a specific intent to kill, while manslaughter only requires an intent to commit the act that causes a death.
So what does this have to do with Hillary Clinton and the possible crimes under the Espionage Act? Simply that the sections of the act she may have committed the act for she didn’t have the requisite intent for, and the ones she had the requisite intent for the other parts of the act weren’t committed. Because no part of the Espionage Act she both had the required intent for and had the required acts for, there is no part of our understanding of criminal justice that would allow her to be charged or convicted.
In order to go through this, let’s examine the potential violations piece by piece.
18 USC 793(f)
The most commonly cited statutes that Clinton may have violated come from Title 18, Chapter 37, Subsection 793 of the United States Code. The relevant sections are (f), as well as (d) and (e). They can be found in full at https://www.law.cornell.edu/uscode/text/18/793, but let’s look at some of the specifics.
Subsection (f) states in part:
“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.”
So in our lesson on statutory interpretation, we can see first that the standard for conviction under 18 USC 793(f) is gross negligence. Gross in legal terms essential means that it is above and beyond ordinary negligence, being defined by The People’s Law dictionary as: “Carelessness which is in reckless disregard for the safety or lives of others, and is so great it appears to be a conscious violation of other people’s rights to safety. It is more than simple inadvertence, but it is just shy of being intentionally evil.” (http://dictionary.law.com/Default.aspx?selected=838).
Note that in the statement by the FBI, the Director never used the phrase ‘Gross negligence’. He very specifically dances around using those words, but it is entirely possible that if it was turned over to a prosecutor they would be able to prove gross negligence. The problem with this one is that while she may have had the requisite mens rea, the other parts of the statute weren’t met. Remember that 793(f) both requires gross negligence and that the item be removed from its ‘proper place of custody’. Proper place of custody is a term that does not appear in any legal dictionary, but which was not found to be violated here. While it wasn’t secure, a Cabinet level appointee is given great discretion in determining the proper places for documents—in this instance, it is good to be the boss and be able to make those determinations. The FBI, in not recommending that she be charged, found that she had not removed or allowed to be removed any document from its proper place of custody or delivered it to anyone. Therefore while she may have had the intent (or lack thereof, as negligence is actually a lack of an appropriate intent to keep safe), the other elements of the crime weren’t present. Therefore, she wasn’t charged.
18 U.S.C. 793(d) and (e)
The other two parts of 793 that could be relevant are (d) and (e). They are substantially similar, except that one deals with data you have a lawful right to access and the other unlawful access.
(d) Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it; or
(e) Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it;
Shall be fined under this title or imprisoned not more than ten years, or both.
Now it is back to reading the statute. The two are essentially the same, and both of them require that the person in question “…willfully communicates, delivers, transmits, or causes to be communicated, delivered, or transmitted…” Therefore we can see that this is not a general intent crime, because it requires willful communications—it requires not negligence or even just communication, but willfulness. Once again on the People’s Legal Dictionary, Willful is: “Referring to doing something intentionally, purposefully and stubbornly.”
Therefore willfully storing it on an unsecured server is not enough; that would be a general intent crime. Willful means that it is done for the purposes laid out in the statute, not for any other purpose or in any other state of mind. Therefore if there is even a reasonable doubt as to whether or not she intended to deliver it to any person not entitled to receive it, or to willfully retain and not deliver, she did not have the mens rea required. Even if she has committed communication or the retaining parts, if she did not do it with willfulness then she cannot be charged under the crime.
Note that from the beginning, it has been claimed by Clinton and her staff that there was never any intent to break the law, or fail to deliver, or communicate to any unauthorized party or location. She has maintained that she thought it was in line with the practices of previous Secretaries of State (Colin Powell used a personal email service not on servers under his control, which is somehow being treated as a better option for some reason), and that she intended it to be archived and kept according to the law.
Now you can assume she was lying, but it’s important to remember that 1) Just because you want her to be lying doesn’t mean she is, and 2) her lying would have to be proved by extrinsic evidence to the preponderance of the evidence standard. So even if we decide that there was a benefit Clinton thought she was going to get by keeping the private server, we have to be able to prove she willfully communicated or retained and failed to deliver. The FBI didn’t find that this could be proven, either because Clinton was genuine in that she thought it wasn’t against the law (which wouldn’t be willfully breaking it) or because there wasn’t enough evidence to prove that she did it willfully.
18 USC 798(a)(3)
The other option that gets thrown around is section 798. This reads:
(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information—
(3) concerning the communication intelligence activities of the United States or any foreign government…
Shall be fined under this title or imprisoned not more than ten years, or both.
So once again turning to our statutory readings, we find that 798 has an even higher standard than the other ones. This is not just the standard of willfulness, but knowingly and wilfully. Everything that was said up above is also true here, but even more so. Clinton would not have just needed to intentionally make available to an unauthorized person, but also need to do so knowing that the information was going to go to a person she knew to be unauthorized. Whereas under 793(f) there is an argument that if there was evidence of a hack (which the FBI did not find) she could have been guilty of causing it to be removed, that won’t cut it here—she would have to give it to a person or use in a manner prejudicial to the interest of the U.S. both knowing and willing it to happen.
So to sum up:
She can’t be guilty under 793(f) because even if she was grossly negligent she didn’t cause it to be removed from its proper place, in part because she is partially responsible for determining that proper place and acted in good faith in determining it. She can’t be guilty under 793(d) and (e) because even if she did deliver or transmit it, she didn’t do so willfully under the legal definition of willfulness—she acted on purpose but she didn’t act purposefully to violate the law, which matters because the statute creates a specific intent. And she can’t be guilty under 798 because that requires an even higher standard of intent, knowingly and willfully, and if she doesn’t meet willfully she won’t meet that one either.
One of the things that has also been going around is that other people would have gone to jail for this. The FBI specifically addressed this, saying that they did not expect a lesser employee acting in a similar fashion would have been charged with a crime, but they probably would have faced administrative or security sanctions.
First, there are other circumstances where people have been punished for somewhat similar circumstances. There was a sailor who was convicted of removing classified information, the case of soldier Bradley (now Chelsea) Manning, and Edward Snowden.
The important thing that differentiates both the sailor and Manning are that they were members of the U.S. Military. Uniformed soldiers, sailors, airmen/airwomen, and marines are bound by different rules than civilians—and especially different rules than Cabinet Secretaries acting within the areas of their competency. While Clinton likely had, as Secretary, the right to determine to an extent the proper place of custody for intelligence, that is not something open to either enlisted or officers. And lest we forget, General Petraeus was not claiming that his reporter girlfriend accessed information he stored on his own server—he knowingly and willfully provided information he knew to be classified to a third party he knew to be unauthorized to receive it, to make a biography better. Snowden is under similar circumstances, as an employee of the CIA—intelligence employees have a different standard of discretion they are given then the Secretary of State.
As for administrative and security sanctions, there are literally none that can be put against Clinton. You cannot administratively sanction someone who is no longer your employee, just like your last boss can’t come write you up in your new job. And Clinton doesn’t have a security clearance any longer, as she is no longer employed. And because the system of security clearances exists because of an Executive Order, if Clinton is elected President there is literally no mechanism to deny her access to information. A Security Clearance is, in effect, a level of clearance to see the information the President has. Just like the Queen of England doesn’t have a passport because all passports are issued in her name, so are security clearances irrelevant to the President who has the power to establish them.
So that is a very long explanation of why she not only wasn’t indicted, but was never going to be indicted—and why this was the exact outcome that I expected for months as an attorney. For the crimes she had the intent for they didn’t meet all the elements for, and for the crimes she had the elements for she didn’t have the intent that they could prove.
This was a victory for law and order, for not having meaningless trials or wasting taxpayer time or money. It has nothing to do with the FBI being corrupt, when they weren’t a few weeks ago; it has nothing to do with Clinton being corrupt or the laws not applying to her. This is the outcome I would have expected no matter if it had been Clinton, Sanders, or any other person in the exact same circumstances. To indict her would have been a perversion of our understanding of justice.
Also, I called it.