Over at the New York Times’s “Room for Debate” I’ve placed a short piece arguing that FBI Director James Comey failed to apply the appropriate legal standard to Hillary Clinton:
The relevant statute places a special burden on public officials to safeguard national secrets, making it a crime to remove national defense information from its “proper place of custody” even through mere “gross negligence.” There is no requirement of finding specific intent.
Yet in explaining why he believed that “no reasonable prosecutor” would seek to indict Clinton, Comey didn’t refer back to this standard. Instead, he made up his own – declaring that prior prosecutions included elements like “willful mishandling,” “indications of disloyalty” or “efforts to obstruct justice.” Yet these factors don’t define the crime, they merely exacerbate it. The crime itself depends on gross negligence, not these aggravating factors.
My sparring partner, University of Texas law professor Stephen Vladeck doesn’t deal with the merits of Comey’s legal assessment but instead focuses on the dangers of “overclassification:”
But lest it get lost in the larger headlines coming out of Tuesday’s announcement, Comey also tacitly confirmed the larger point I tried to make back in February — that one of the real lessons to learn from this affair is the unchecked pervasiveness of overclassification by, and in, the contemporary United States executive branch. According to Comey, even though more than 2,100 of the e-mails at issue were subsequently deemed to contain classified information, only 113 were “born classified,” meaning that they referred to information that was properly classified at the time the e-mail was sent. That means that 95 percent of the e-mails deemed classified were only so assessed after the fact — by line-officers responding to Freedom of Information Act (FOIA) requests.
While I agree that we do overclassify information, not all classification decisions are created equal. Let’s not forget that she sent and received emails that were classified from their inception and pertained to “matters that were classified at the Top Secret/Special Access Program level.” (Emphasis added.) There are legitimate questions about classifications on the margins. There are gray areas between confidential and unclassified information — and sometimes even between secret and unclassified information — but Top Secret/Special Access Program information represents some of the most highly-classified and sensitive material produced by the U.S. government. And she sent it and received that material on a personal system less secure than Gmail. There is no excuse.
It doesn’t matter if 30,000 other emails were clean or if the federal government generally overclassifies its information – good luck using that as a defense if your last name isn’t Clinton, and you’re caught transmitting similar information on your own personal computers. Overclassification is certainly a problem, but it is not a justification for Hillary’s misconduct. She knew she was doing wrong.