This is pretty amazing even if it does come a year too late. An early draft of the statement FBI Director James Comey wrote to announce the end of the investigation into Hillary Clinton’s private email server said she was “grossly negligent” in her handling of classified information. That phrase was later crossed out and replaced with the less legally significant phrase “extremely careless.” From the Hill:
The draft, written weeks before the announcement of no charges, was described by multiple sources who saw the document both before and after it was sent to the Senate Judiciary Committee this past weekend.
“There is evidence to support a conclusion that Secretary Clinton, and others, used the email server in a manner that was grossly negligent with respect to the handling of classified information,” reads the statement, one of Comey’s earliest drafts.
Those sources said the draft statement was subsequently changed in red-line edits to conclude that the handling of 110 emails containing classified information that were transmitted by Clinton and her aides over her insecure personal email server was “extremely careless.”
The sources, who spoke on condition of anonymity because they were not authorized to speak to the media, said the memos show that at least three top FBI officials were involved in helping Comey fashion and edit the statement, including Deputy Director Andrew McCabe, General Counsel James Baker and chief of staff Jim Rybicki.
The story goes on to say that it’s not clear which one of the FBI officials involved edited this particular phrase out of the document. If you’ve been following this story for more than a year, you probably already know why the change of language is so significant. “Gross negligence” is the phrase that appears in one subsection of 18 USC 793, the law which many people believed applied in this case. Here’s what the law itself says [emphasis added]:
(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.
The focus on this aspect of 18 USC 793 wasn’t just speculation. Fox News reported in October 2015 that the FBI was focusing on this particular subsection of the law as it investigated Clinton:
Three months after Hillary Clinton’s use of a private email address and server while secretary of state was referred to the FBI, an intelligence source familiar with the investigation tells Fox News that the team is now focused on whether there were violations of an Espionage Act subsection pertaining to “gross negligence” in the safekeeping of national defense information.
Under 18 USC 793 subsection F, the information does not have to be classified to count as a violation. The intelligence source, who spoke on the condition of anonymity citing the sensitivity of the ongoing probe, said the subsection requires the “lawful possession” of national defense information by a security clearance holder who “through gross negligence,” such as the use of an unsecure computer network, permits the material to be removed or abstracted from its proper, secure location.
And in April 2016, former DOJ lawyer Ronald Sievert argued this same subsection applied to Hillary’s handling of email on her private server. Now it seems that, at least at one point, James Comey agreed. As one unnamed source tells the Hill, “The red-line history clearly shows the original statement was designed to allege Clinton committed gross negligence and then someone changed it to extreme carelessness.”
If nothing else, what this early memo demonstrates is that this really was a judgment call, one that could have gone a different way and perhaps almost did. Congress should seek to find out who made the change and why. What discussion went into this?
During subsequent congressional testimony defending his decision not to go after Clinton for gross negligence, Comey argued that “no reasonable prosecutor” would charge someone under 18 USC 793 without proof that the party in question was aware they were breaking the law.
The alternative to that view was probably best presented by Trey Gowdy, who pointed out that criminal intent is often established through circumstantial evidence, i.e. a series of carefully crafted lies attempting to deny culpability like the ones Hillary told about her email server.