Director Comey’s explanation is now clear, though he did not lay it out in his report earlier this week: The statute criminalizing gross negligence in mishandling classified information is invalid because it does not require proof of intent to improperly transmit classified information to places it is not supposed to be or to people not authorized to have it.


The director claims that the statute has only been used once since its enactment in 1917, and therefore its invocation as written in Mrs. Clinton’s case would be suspect. He implies that the only way to save the statute is for the Justice Department to do what prosecutors routinely tell judges that they are not permitted to do: rewrite the statute – in this instance, to add a higher mens rea proof requirement.

With due respect, this argument is very unconvincing, for at least two reasons:

1. It is implausible to claim, as Director Comey does, that a criminal statute is implicitly invalid if the mens rea (state of mind) element merely requires proof of gross negligence rather than intent to cause harm. Let’s consider the causing of death, a consequence similarly grave to compromising our national security by mishandling classified information. I believe every state in our country criminalizes the negligent causing of death. Here, for example, is what judges in Connecticut instruct juries in every such case:

For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt:

Element 1 – Cause of death The first element is that the defendant caused the death of <insert name of decedent>. This means that the defendant’s conduct was the proximate cause of the decedent’s death. You must find proven beyond a reasonable doubt that <insert name of decedent> died as a result of the actions of the defendant. Element 2 – Criminal negligence The second element is that the defendant was criminally negligent in causing the death. Conclusion In summary, the state must prove beyond a reasonable doubt that 1) the defendant caused the death of <insert name of decedent>, and 2) the defendant was criminally negligent when (he/she) caused the death.


Notice: there is absolutely no requirement that the prosecutor prove that the defendant intended to do harm or cause death. It is merely required that the prosecutor prove that the defendant acted negligently and that this negligence caused death.

It would be shocking were a high official to suggest that such prosecutions are constitutionally suspect. They happen all the time, and have from time immemorial.

2. It would be contradictory to require proof beyond a reasonable doubt of both (a) the intentional causing of harm, and (b) the causing harm by gross negligence. We know in our everyday lives that we do not intend the harm we cause when we act negligently. The driver who texts behind the wheel never intends the harm that comes to the passengers when the highly likely accident happens. If Director Comey is correct, though, that would mean that Congress is powerless to criminalize the extremely careless mishandling of classified information by high public officials despite the catastrophic damage it can do to the United States.



This simply cannot be so.


Finally, Director Comey just testified that he did not rewrite the statute criminalizing grossly negligent mishandling of classified information (as I have argued he, in effect, did). Knowing Jim Comey as I do, I have no doubt that he says this because, on some technical level, he believes it to be true. But I do not understand how that assertion can be squared with his opening statement, in which he strongly suggested that the statute is suspect and can only be saved if the Justice Department redefines Congress’s mens rea requirement – raising it from gross negligence to intentional causing of harm.