(f) 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, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer— Shall be fined under this title or imprisoned not more than ten years, or both.
You don’t need to intentionally mishandle classified information to be guilty. Gross negligence in your handling of it is enough. And here’s the important part: Comey himself signaled, quite overtly, that he believes Hillary was grossly negligent. If you tried to come up with another way of saying “gross negligence,” you could scarcely do better than “extremely careless,” the term Comey used this morning.
Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.
For example, seven e-mail chains concern matters that were classified at the Top Secret/Special Access Program level when they were sent and received. These chains involved Secretary Clinton both sending e-mails about those matters and receiving e-mails from others about the same matters. There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation.
The phrase “extremely careless” is a wink at the gross-negligence standard in Section 793(f). The phrase “any reasonable person” is another. That’s how courts typically define negligence, as a failure to exhibit the same duty of care that a hypothetical “reasonable person” would exhibit. He’s telling you flat out here that she was negligent and then leaving you to infer from the rest of his remarks that her actions were so shockingly careless under the circumstances as to rise to the level of gross negligence — which means she’s guilty of violating 793(f). His blather about intent at the end of his remarks, insisting that prosecutors traditionally haven’t prosecuted crimes related to classified information unless the information was mishandled intentionally, is extraneous nonsense designed to take the heat off of Loretta Lynch and the DOJ in deciding whether to break with tradition or not. That’s a matter of prosecutorial discretion and, eventually, grand-jury discretion. Comey’s job was simply to decide whether a crime has been committed. It has, by his own admission. So why wasn’t that fact noted and the rest left to the DOJ?
I’m treating this as further evidence for my theory that Comey, for whatever reason, felt that he couldn’t recommend charges for political reasons (in which case, why didn’t he resign on principle?) but wanted to make sure that Hillary was punished at least insofar as she suffered political damage. He didn’t need to note how “extremely careless” she was or what “any reasonable person” would have done if all he wanted to do was say “we’re not recommending charges.” That was added, I assume, because Comey knew what people like Giuliani and McCarthy who are familiar with 793(f) would do with it. They’d tout the fact that Comey’s all but accusing of her committing a crime and would use that against her politically. Comey and his agency would take a hit in the process for not recommending charges but they were always destined to take a hit for that. The least Comey could do amid this foreordained travesty of justice is let the world know that he agrees with them that a crime was committed. And that’s exactly what he did. She won’t be charged, but she certainly wasn’t “cleared.”
I’ll leave you with short summary from Lachlan Markay of various Hillary lies about Emailgate that Comey has now debunked. It’s not exhaustive either. Add the fact that her spokesman once claimed that her lawyers had read every single e-mail on the server in the course of deciding what should be deleted, another untruth exposed this morning.
No classified info: lie
Allowed by State: lie
Turned over all work emails: lie
Wanted a single device: lie
Never breached: lie
— Lachlan Markay (@lachlan) July 5, 2016