Why Intent, Not Gross Negligence, is the Standard in Clinton Case

July 14, 2016

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On July 5, FBI Director James Comey announced that he was not going to recommend the filing of criminal charges against Hillary Clinton over her use of a private email server.  Comey said there was insufficient evidence to show Clinton had malicious intent. Comey reasoned:

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… We do not see those things here.

Many commentators have criticized Comey’s decision, arguing the statute Clinton was accused of violating, 18 U.S.C. § 793(f), requires only “gross negligence,” not intent.  Former federal prosecutor Andy McCarthy has gone so far as to say that replacing the words “gross negligence” with “intent” rewrites that statute to serve political ends.

McCarthy and others are mistaken.  The issue of mens rea, or intent, is not as simple as it seems on the surface, and intent is the correct standard.  Comey was right not to recommend filing charges and to base his decision on the absence of evidence that Clinton had the necessary intent.

Section 793(f) makes it a felony for any person “entrusted with… information relating to the national defense” to allow that information to be “removed from its proper place of custody” through “gross negligence.” On its face, the law does not appear to require intent, but it turns out the key phrase in 793(f) is not “gross negligence.”  The key phrase is “related to the national defense.”

Section 793(f) is a subsection of the Espionage Act, a controversial statute enacted during World War I in order to combat efforts by German agents to undermine the American war effort.  The Act has been amended and renumbered many times, but its core provisions have not substantively changed.  The Espionage Act has only sparingly been used to file criminal charges, but when it has been used it is often in high-profile cases.  Eugene Debs was jailed under the Espionage Act for anti-war activities during World War I.  The Rosenbergs were charged under the Espionage Act when they sold nuclear secrets to the Soviet Union.  More recently, both Chelsea Manning and Edward Snowden were charged under the Espionage Act for providing classified material to WikiLeaks.

The law has been controversial since its inception and prosecutions under the Act have been challenged as unconstitutional in several instances.  The most famous of these cases is probably Schenck v. United States (1919), where the government charged two men with obstructing registration for the military draft by distributing leaflets urging young men not to register.  The Supreme Court heard the case and unanimously upheld the convictions and the statute.  It was in Schenck that Justice Oliver Wendell Holmes famously wrote that it is not protected speech to “yell fire in a crowded theater.”

But as time went by, feeling towards the Espionage Act began to sour.  Later in 1919, the Supreme Court heard Abrams v. United States.  That case involved the distribution of leaflets by anarchists who urged factory workers to refuse to participate in production of war materiel.  In Abrams, the Court again upheld the convictions, but this time the decision was not unanimous. Holmes, who had written the majority opinion in Schenck, was one of the dissenters.  Two years later, the Sedition Act, a 1918 amendment to the Espionage Act that imposed criminal sanctions for anti-war speech, was repealed by Congress in its entirety.

The Espionage Act was left on the books, however, in the years after the war it was used only sparingly.  When it was used, it was often controversial because it resulted in prosecutions that civil libertarians believed infringed on press freedom and the right to political protest.  Perhaps the most famous of these cases is the prosecution of Daniel Ellsberg for leaking the Pentagon papers  The courts too grew wary of the Espionage Act and as a result their readings of it narrowed the scope of the law and limited when it could be used.

This helps provide context as to why James Comey insisted that intent was required to satisfy the requirement of 793(f).  Even though the plain language of the statute reads “gross negligence,” the Supreme Court has essentially rewritten the statue to require intent to sustain a conviction.

In Gorin v. United States (1941), the Supreme Court heard a challenge to a conviction of a Navy intelligence official who sold classified material to the Soviet Union on Japanese intelligence operations in the United States.  In that case, the defendant was charged with selling information “relating to the national defense” to a foreign power.  The defendant argued on appeal that the phrase “relating to the national defense” was unconstitutionally vague, so much so that the defendant was deprived of the ability to predetermine whether his actions were a crime.

Justice Stanley Reed wrote the majority opinion and disagreed that the law was unconstitutionally vague, but only on the very narrow grounds that the law required “intent or reason to believe that the information to be obtained is to be used to the injury of the United States.”  Only because the court read the law to require scienter, or bad faith, before a conviction could be sustained was the law constitutional.  Otherwise, it would be too difficult for a defendant to know when exactly material related to the national defense.  The court made clear that if the law criminalized the simple mishandling of classified information, it would not survive constitutional scrutiny, writing:

The sections are not simple prohibitions against obtaining or delivering to foreign powers information… relating to national defense. If this were the language, it would need to be tested by the inquiry as to whether it had double meaning or forced anyone, at his peril, to speculate as to whether certain actions violated the statute.

In other words, the defendant had to intend for his conduct to benefit a foreign power for his actions to violate 793(f).

Without the requirement of intent, the phrase “relating to the national defense” would be unconstitutionally vague.  This reading of the statute has guided federal prosecutors ever since, which is why Comey based his decision not to file charges on Clinton’s lack of intent.  This is also why no one has ever been convicted of violating 793(f) on a gross negligence theory.

Only one person has even been charged under a gross negligence theory: FBI Agent James Smith.  Smith carried on a 20-year affair with a Chinese national who was suspected of spying for Beijing, and Smith would bring classified material to their trysts, behavior far more reckless than anything Clinton is accused of.  But Smith was not convicted of violating 793(f).  He struck a plea agreement that resulted in a conviction to the lesser charge of lying to federal agents.  Smith was sentenced to three months of home confinement and served no jail time.

Members of the U.S. military have been charged with the negligent mishandling of classified material, but not under 793(f).  Criminal charges in military court are brought under the Uniform Code of Military Justice, not the Espionage Act (although violations of the Espionage Act can be charged under Article 134 of the Uniform Code of Military Justice in military court).  The military has extensive regulations that govern the handling of classified material and the failure to follow these regulations is a criminal offense.  Negligence can result in a conviction under Article 92 because the test is whether the service member “knew or should have known” they were violating the regulation. But these rules do not apply to any civilian personnel at the State Department and can only be applied to DoD civilians in very limited circumstances.

Despite what may appear to be the plain meaning of 793(f), the negligent mishandling of classified material is not a civilian criminal offense.  A civilian can face many consequences for negligently mishandling classified material, including the loss of their clearance and probably with it their employment, but they would not face criminal charges.  For anyone who thinks negligence should be a crime their argument is not with Director Comey but with Justice Reed, the author of the Gorin opinion. Because of that decision, the correct standard is intent, not gross negligence, and the director was right not to recommend a criminal case.


John Ford is a former military prosecutor and a current reserve U.S. Army Judge Advocate.  He now practices law in California.  You can follow him on twitter at @johndouglasford.

Image: House Judiciary Committee

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19 thoughts on “Why Intent, Not Gross Negligence, is the Standard in Clinton Case

  1. For any of us who have ever had a security clearance and access to materials, we all know that is wrong

    It doesn’t matter, military, contractor or government employee, if anyone else did the exact same thing as Clinton, they would have already been convicted and be sitting in prison as well speak.

    Let’s stop kidding ourselves to believe otherwise.

    I’m sure we’ve all seen careers ruined over far less infractions even something as simple as leaving a SCIF with a coversheet or sending an email down to SIPRNET from JWICS and god forbid if anyone ever mistakenly even left the building with a single document, let alone the list of CRIMES by Clinton
    -Using a PERSONAL non-government approvaed server
    -Sending CLASSIFIED materials over said personal unclassified server
    -Stripping Classification Markings from documents so she could claimed the emails weren’t classified when they were sent

    Remind us again how many CLASSIFIED documents they found on her server, how many was it? 1000, 2000,?

    1. Mike: I understand you feel passionately about this, but we demand comments comport with our standards for courtesy. I’ve taken it upon myself to edit your comment to remove the insult.

  2. It would help were Mr. Comey’s critics to distinguish between administrative and criminal penalties. Except for uniformed personnel, who – as Mr. Ford rightly points out – are covered by the UCMJ, negligent handling of classified material may subject the violater to the former, but not the latter.

    Of course, in my own experience (including two stints on the NSC staff), were such penalties to be applied rigorously and uniformly, a fair roster of senior government officials during the last 45 years or so should have been fired for playing fast and loose with classified in ways far more egregious than Ms. Clinton.

    1. Using the excuse the other “officials” have done similar things doesn’t hold water. 2 wrongs don’t make a write here.
      Should we just discount the recent cases where people are being charged for far lesser violations?
      At issue are four sections of the law: the Federal Records Act, the Freedom of Information Act (FOIA), the National Archives and Records Administration’s (NARA) regulations and Section 1924 of Title 18 of the U.S. Crimes and Criminal Procedure Code.
      • The Federal Records Act requires agencies hold onto official communications, including all work-related emails, and government employees cannot destroy or remove relevant records.
      • FOIA is designed to “improve public access to agency records and information.”
      • The NARA regulations dictate how records should be created and maintained. They stress that materials must be maintained “by the agency,” that they should be “readily found” and that the records must “make possible a proper scrutiny by the Congress.”
      • Section 1924 of Title 18 has to do with deletion and retention of classified documents. “Knowingly” removing or housing classified information at an “unauthorized location” is subject to a fine or a year in prison.
      • Section 793 applies to anyone who has been “entrusted” with information relating to the national defense. The law applies to a federal official who “through gross negligence permits” information “to be removed from its proper place of custody or delivered to anyone in violation of his trust, to be lost, stolen, abstracted or destroyed.”
      • Section 798 applies to any government official who “knowingly and willfully communicates” information “to an unauthorized person.”
      • Section 1001 addresses giving “false statements.”

  3. Mr. Ford’s argument is unconvincing. First, to focus solely on violations of 18 US Code Section 793 is disingenuous. Clinton manifestly also disregarded other provisions of the Espionage Act, including for example, Section 372; by deleting tens of thousands of emails, thereby inhibiting investigating officers ability to perform their official duties (as Comey’s testimony to Congress acknowledged) as well as others contained within chapters 19, 37 and 93.

    She violated provisions of the Federal Records Act that forbid public employees from holding or storing classified information in unauthorized places, media or networks.

    Even if one accepts the argument that intent is dispositive in a decision to indict, how in the world could her setting up a personal email system and then subsequently deleting 33000+ emails when the existence of that server was discovered, NOT indicate intent to evade the laws that govern information security and transparency requirements for public officials?

  4. Mr. Ford provides a clear explanation of why Secretary Clinton did not violate the Espionage Act and why FBI Director Comey properly chose not to indict under the Espionage Act.
    Here are some additional considerations:
    1. This is a monumentally high profile case – it’s a Marcia Clark/OJ Simpson moment. If you win the case, you take down a giant who is running for President. If you lose, you end your career and improperly influence a national election. So if you bring the case, the glove better fit. Given the strength of Mr. Ford’s arguments, it cannot be said that this case is a slam dunk, even if you disagree with him.
    2. Following point one, juries don’t like to send white-collar defendants to jail without any clear evidence of damage. No one has suggested that Secretary Clinton had any intention of harming the US or, in fact, harmed the US (by using her own server). Without evidence of harm, there are good odds that a jury would not convict, and the prosecutor has improperly influence the presidential election and reaches the end of his/her career. (See point #1).
    3. Bringing NARA or FOIA violations as a criminal prosecution against a former Secretary of State who is running for President has all of the prosecutorial sex appeal of cold oatmeal. Would a jury take the charges seriously? NARA – really? And if the deleted emails were truly needed for our national security, there is an agency that could help recover them.
    4. At some point, Secretary Clinton’s defense team would assert that the Secretary of State has the authority to determine that a private server is ‘authorized’ and ‘proper’. If she has the authority, there is no violation and the prosecution comes to an end.
    5. Following #4, a court might not even want to determine whether the secretary of an executive department has that authority. This could be a separation of powers of issue regarding the operations of the executive branch that the court would prefer to leave to the chief executive.
    These considerations do not make Secretary Clinton’s decision to use her own server and to delete 33,000 messages less reckless. They just support FBI Director Comey’s decision to castigate Secretary Clinton without bringing criminal charges.

    1. Mr Ford provides a clear explanation of why Director Comey chose not to indict, but not that Mrs. did not violate the law or that Director Comey’s actions were entirely proper. hjbergman, to respond to your points:

      1- True, this is clearly an unprecedented case, although as previous comments have noted, there are several violations here, most including the act of improperly handling classified for whatever reason.

      2- The issue has never been whether Mrs. Clinton intended to harm the United States. As Director Comey stated repeatedly, the issue is sending and receiving classified information over an unclassified network. Given her deliberate, repeated, and egregious acts of doing just this and condoning it explicitly, there is no question that he intended to send and receive classified information over an unclassified network. If she intended to do harm to national security, that would bring in additional violations of the law. It appears that she was incredibly apathetic, but only she really knows. But if showing intent requires a second, higher, level of intent to harm US, they why have classification rules to prevent its spillage? We would really only need to worry about people intentionally giving it to foreign powers. This proposition is ridiculous on its face.

      The exposure of classified agents and assets, by their definition at the various levels of classification indicate the harm done. The intelligence entities involved could articulate the damage done with ease if required. The negligence of their exposure on an unsecure server is also damaging due to the risk of hacking.

      3- Admittedly, I am not an expert of the sex appeal of cold oatmeal or its prosecutorial aspects. It is also irrelevant. Clearly, many people think and take this issue seriously. These would be additional aspects that add weight to the more substantive charges, and allow other administrative and censure actions to be undertaken appropriately.

      Given he FBI’s role in counter-intelligence and the likely policies of various intelligence agencies to contain spillage, there are several agencies attempting to contain and mitigate the damage done. Recovery of secrets once out is impossible, and silly to expect.

      4-And a some point, the Mrs Clinton’s defense team would need to show the justification for such a server. No one could dispute that it was legal for Mrs. Clinton to set up and use her own server for personal reasons. Again, the issue is that she failed to disclose that she used it for work, hid the contents from Congress, sent and received classified information on an unclassified network routinely and egregiously, and deliberately left it unsecured, and exposed it to many people (such as her lawyers) that did not have the appropriate clearance. It is doubtful that jury would buy any argument that an unsecured personal server was required for classified information, given her access to classified networks, and their accepted use by every other government agency.

      5-This may well be a good question for the courts. The real issue in this area is that despite her position as a classification authority for the State Department at the time, that position does not grant her that ability over classified material from other entities.

      There are still a number of understandable reasons why Director Comey would not recommend prosecution. None of those change one bit the many ways that he explicitly and extensively described her actions in violation of the law. The final and largest issue is whether to hold Mrs. Clinton and her associates accountable through criminal and administrative actions, or acknowledge that we are willing to overlook these egregious violations of federal law.

    2. Got it. Good points. Now consider this….

      She has proven she is reckless. She lied to congress to protect herself. Whether she broke the law or not, to me, is no longer important.

      Whats important now is that she has proven her character and morals to the nation. She doesnt deserve to be president, and in my opinion is no longer qualified to be president of the US.

      So, voting for her is essentially saying that “Do whatever you want, we dont care. You are above the law Mrs. Clinton…”

  5. More apologist spin. As if the UCMJ exists in a vacuum not based on US Code. Offenses may be couched differently, but are largely based on 18:793f, which when not taken out of context, is unambiguous.

    1. Comey dissembled.

      State has known since 1789 that the secretary’s correspondence is 25% to 40 % sensitive or classified. For the Clinton team to set up with ZERO means to handle classified in the digital age other than hard-copy, old-fashioned telegrams is all by itself wanton and willful gross negligence. And likely for some questionable or even nefarious purpose, as it doesn’t pass anyone’s common-sense test.

      Further, over a hundred of her basement-server emails contained paragraphs still with classification markings, meaning they were cut and pasted from a classified server by someone, as clear a willful felony as one gets. That’s not even counting the tens of thousands her lawyers deleted.

      Comey even made her sound criminal: “We found no evidence” and “We did not find clear evidence” and “(lawyers) deleted all emails they did not return to State, and cleaned their devices in such a way as to preclude complete forensic recovery”

      Petraeus shared secrets with a Reserve Military Intelligence Officer with a clearance but not a need-to-know. Nothing was compromised. Clinton posted them on an amateur-hour unsecure server where they are certainly now in the hands of our enemies.

      Why? An analysis of why Truman approved Hiroshima is apt. If he hadn’t, and people discovered the truth, he’s have been lynched. Comey is unwilling to take responsibility for derailing the next President.

  6. Ok, got it. intenet should be the standard based on prior precedence.

    Now, what about perjury?
    And although Clinton may not have violated the law, she did prove her character and morals (none of each in my opinion) and therefore does not deserve or is qualified to be president.

  7. Mr. Ford,
    While I am not an attorney, not gone to law schol, I have stuffed some Con Law in my student years and continue to follow issues of the law over the years. Also, like others here, I do hold a clearance and have been through plenty of security briefings.

    In the end, I have to place myself in the role of a jury member in the courtroom. And while I find some of your points intriguing and worthy of further debate between various legal minds, I do find some of your points bordering on laughable. If I were in the jury box I would not be convinced by your arguments vs. the prosecutor’s.

    To be candid, your arguments strike me of attempting to use the intricacies of the law to squirm out….. aka – Bill Clinton and the definition of “is”.


  8. So what you are saying is we as Americans must hold the lowest of privates that has been cleared for a security clearance to a higher standard than the Democratic parties designated candidate. The one President Obama called best qualified to be the next president. The logical conclusion is any person in the military with a security clearance is more responsible than the highest people in political office.
    My question is negligent handling of TS material in my experience is automatic grounds for permanent removal of security Clarence, and bar from any job requiring a clearance. So how can she run for President?

  9. Hillary’s minions physically moved the items from JWICS and SIPR to unclassified systems by flash drive or by retyping them, in most cases removing the classified markings (they missed a few). Intent? The items didn’t jump on their own. You can’t get stuff from a high-side system to the low-side system without trying hard to do it. Why? Hillary wanted the stuff where ever she happened to be, when a classified system was not available. Yep. Everyone who has ever worked with these systems knows it, too. It can’t happen by unintended negligence; it has to be done with intent to break the rules.

  10. This is hilarious. How do you get classified data from a SCIF to an unclassified network without intent? Has the Judge never handled classified information? You have to print the data out and physically walk it out of a building, then physically type it in some where else. You have to knowingly delete portion marks (Clinton apparently missed 3). It’s clear Clinton minions are simply drudging the bottom of the sea for excuses that 5 year olds tell us.

  11. This is a very selective and misleading citation of Gorin. Justice Reed stated that the information in question has to be clearly related to national defense and that the determination should not be open to the opinion of a jury. Ford’s analysis leaves that important bit out. Here’s the quote without the middle bit removed:
    “In each of these sections, the document or other thing protected is required also to be “connected with” or “relating to” the national defense. The sections are not simple prohibitions against obtaining or delivering to foreign powers information which a jury may consider relating to national defense. If this were the language, it would need to be tested by the inquiry as to whether it had double meaning [Footnote 7] or forced anyone, at his peril, to speculate as to whether certain actions violated the statute.”

    So, the requirement is that the information must very clearly be related to national defense – and one could easily argue that the highly classified information Clinton mishandled was definitely related to national defense.

  12. As for intent, “knew or should have known,” purposefulness, etc., please consider the Hillary-Powell e-mail exchange about the restrictions. Does it not clearly demonstrate that she knew what she was doing was wrong, asked Powell’s advice, and was told how he chose to ignore the requirements because they were too strict? So she knew it was wrong, wanted to disobey, sought and found out how to do so.

  13. John Ford has constructed a very well thought out argument. However, he is not to be praised. By “well thought out”, I mean that he has based all of it on section (f) of the pertinent US Code: https://www.law.cornell.edu/uscode/text/18/793
    His entire argument rest on if all these other cases were brought on (f) only, and that provisions (a) through (e) did not exist. He uses the example of Gorin, who actively sold classified info to the Soviets during WWII. That was ruled to require intent, because, of course, he HAD intent. I don’t see any evidence that Gorin was prosecuted SOLEY on provision (f). If there is, please present it.
    Hillary should be prosecuted under (f), because she clearly exhibited gross negligence, but not intent, so (a) through (e) don’t apply to her. Nice straw man.