September 26, 2016

“Lock Her Up”

 How Should We Evaluate the Decision Not to Indict Hillary Clinton?

This blog post is a companion piece to my weekly podcast with Thomas Smith, Opening Arguments.  If you haven’t listened to Episode 13, I highly recommend it; I go into more detail there than I can in this post.  If you want to skip to the punchline, the answer to the question, “Did Hillary Clinton receive preferential treatment from the FBI for not being indicted due to her use of a private email server?” is a relatively straightforward “No.”

Here’s why.


On July 5, 2016, FBI Director James B. Comey released a statement to the public summarizing the findings of the FBI’s year-long investigation into Hillary Clinton’s use of a personal e-mail system while serving as Secretary of State.  The key finding, for purposes of this discussion, is this:

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.

Id.  In short, the FBI found that Clinton had no intent to violate the law but was “extremely careless.”

As a result, Director Comey recommended that no criminal prosecution be undertaken with respect to Clinton’s use of email.  Here’s the justification he gave:

Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. … In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. 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; or efforts to obstruct justice. We do not see those things here.


Immediately after Director Comey released and read this statement to the public, an argument began circulating among Donald Trump supporters that Clinton received special treatment given the facts of her case.  Here’s a summary of those arguments from “Allahpundit” at Hot Air.  The argument, expressed as straightforwardly as possible, goes something like this:

  1. The FBI determined that Hillary Clinton and her staff were “extremely careless” with classified information.
  1. One particular portion of the Espionage Act, 18 U.S.C. § 793(f)(1), makes it a crime to permit any “document… relating to the national defense” 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.”
  1. No one disagrees that electronic documents were “removed from [their] proper place of custody.”
  1. “Extremely careless” sounds an awful lot like “gross negligence.”
  1. Therefore, if an ordinary person were to have done what Hillary Clinton did, a reasonable prosecutor would indeed have brought a case against that person. As former prosecutor Rudy Giuliani put it: “I don’t have any doubt I can win this case in front of a jury.”
  1. Furthermore, Hillary Clinton received (for whatever reason) special, preferential treatment in this case. Giuliani continues, “This is the special exception for the Clintons.”  If the system were fair, it would, in the words of many Trump supporters (and Trump himself), “lock her up.”

Clinton Supporters’ Response: “Extreme Carelessness is Not Gross Negligence”

In response to this argument, many Clinton supporters immediately noted that point 3 was a bit of an equivocation; namely, that “gross negligence” is not necessarily the same thing as being “extremely careless.”  Here’s a summary of those arguments at the liberal site Media Matters for America.  While there is some merit to these arguments, I’m not sure it’s a great response, to be honest.  Lots of courts have taken a stab at defining “gross negligence”; here’s how West’s Encyclopedia of American Law puts it:

Gross negligence is a conscious and voluntary disregard of the need to use reasonable care, which is likely to cause foreseeable grave injury or harm to persons, property, or both.  It is conduct that is extreme when compared with ordinary negligence, which is a mere failure to exercise reasonable care.  Ordinary negligence and gross negligence differ in degree of inattention, while both differ from willful and wanton conduct, which is conduct that is reasonably considered to cause injury.

See what I mean?  On the one hand, that definition includes the phrase “is likely to cause foreseeable grave injury or harm to persons, property, or both,” and there doesn’t seem to be a lot of evidence that Hillary Clinton’s private email server did that.  On the other hand, the definition distinguishes gross negligence from “willful and wanton conduct,” which seems to be the standard Director Comey used in his statement (“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; or efforts to obstruct justice.”).

Ordinarily, a lawyer will tell you that if you can’t get a clear definition from a legal dictionary, the way to figure out what a term means is to read a bunch of cases on the subject.  I did that; the case law isn’t particularly helpful, either.  You can find cases where Clinton’s conduct kind of doesseem to fit one court’s interpretation of “gross negligence” and other cases where a different court came out the opposite way.  So it’s not clear, and for that reason, I don’t think this is a particularly compelling argument.

Let me put it this way:  if I were engaged as a lawyer by the Clinton campaign and asked solely to evaluate this legal question (“Did the FBI determine that her conduct was grossly negligent?”), I don’t think I would give an unambiguous “no.”  I could see a court going the other way, and I would have to advise my client that there were some risks.  So let’s assume for the sake of argument that Clinton did indeed commit gross negligence.  Is that the end of the inquiry?

What About the Rest of the Argument?

Episode 13 of the Opening Arguments podcast, and this post, are intended to answer one narrow question:  assuming for the sake of argument that Clinton’s conduct was indeed “grossly negligent,” is the rest of the “lock her up” argument correct?  That is, was FBI Director Comey telling the truth when he said that “no reasonable prosecutor” would bring this case, or was Rudy Giuliani correct when he said he had no doubts that he could win a case like this in front of a jury?

To answer this question, I did what any good lawyer would do.  First, I went to the relevant section of the Espionage Act itself, 18 U.S.C. § 793(f)(1).  I quoted it in part, above, but here’s the whole section:

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 … Shall be fined under this title or imprisoned not more than ten years, or both.

Well, that certainly seems to match up with Giuliani’s argument.  But, of course, Director Comey’s statement wasn’t just about what the law says; he admits as much in the prologue to his recommendations.  (“Although there is evidence of potential violations of the statutes regarding the handling of classified information…”)  That statement suggests that Clinton’s conduct could arguably fall within the law.  Comey’s statement continues, “…our judgment is that no reasonable prosecutor would bring a case.”

But there’s more to locking someone up than just looking at the text of the law.  You have to ask what a prosecutor would do in the real world, given their experience of trying these cases in front of a jury.  For example, § 15-402 of the Maryland Code, Transportation Article, makes it a criminal offense for any salesperson to sell an automobile within the state of Maryland using an out-of-state license.  If convicted, a first-time offender is subject to a $1,000 fine and six months in prison.  Like the Clinton email case, nothing in the precise text of the law requires the offender to have had specific criminal intent.  Nevertheless, I don’t know of any prosecutor in the state who would seek jail time for this kind of offense, particularly if the defendant were merely careless (or even “extremely careless”).  Nobody gets six months in jail for having the wrong sales license.

In other words:  to understand whether Clinton did, in fact, receive preferential treatment, you have to know not only what the law says, but how that law is typically applied in the real world.

What Have Prosecutors Done?

So the first thing I did was to type the citation for the Espionage Act, 18 U.S.C. § 793, in to Lexis-Nexis.  That search returned 240 hits across every level of the judiciary, from the Courts of Military Review to the Supreme Court itself.

I read all 240 cases so you didn’t have to.  (Well, in fairness, I skimmed a bunch of them that were obviously not relevant.  Still.)  What did I find?

The first thing I found is that the overwhelming majority of Espionage Act cases are brought under §793(e), and not § 793(f), the statute under which Rudy Giuliani thinks Hillary Clinton should be charged.  Let me be clear here:  by “overwhelming majority,” I mean vastly in excess of 200 cases. I mean that if you pick an Espionage Act case at random, the odds are way better than 20:1 that you will pick a subsection (e) case (and way less than 1-in-25 that you’ll pick a subsection (f) case).  That seems to cry out for an explanation – perhaps subsection (e) cases are easier to prove than (f) cases?  To test that hypothesis, let’s look at the text of subsection (e):

(e) Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it; … Shall be fined under this title or imprisoned not more than ten years, or both.

18 U.S.C. § 793(e) (emphasis added)

Well, that’s interesting.  Subsection (e) seems to be pretty much the same as subsection (f), except – as highlighted above – the standard for guilt under subsection (e) is considerably higher than the standard of guilt under (f); “willfully” versus “gross negligence.”  And, as you might recall, the FBI has already determined that Hillary Clinton did not “willfully” do anything.  Hillary Clinton could not be charged under subsection (e).

So, why, exactly, would prosecutors overwhelmingly favor bringing cases under subsection (e) – the harder crime to prove – instead of subsection (f), which only requires “gross negligence?”  To figure this one out, we’re going to have to look at the subsection (f) cases.

Fortunately, there are only nine of them.  Nine.  Out of 240, in all of recorded history.  Let’s take a look, and see how these cases compare to Secretary Clinton’s.  (None of these cases are available through Google Scholar, but they can be retrieved off of LEXIS or at any law library.)

  1. United States v. Gonzalez, 12 MJ 747 (USAF Ct. of Military Review Apr. 26, 1980), aff’d, United States v. Gonzalez, 16 MJ 428 (Ct. of Military Appeals, Nov. 7, 1983).

The earliest case I found was United States v. Gonzalez, which involved Air Force Staff Sergeant Arthur Gonzalez, who was stationed at Elmendorf Air Force Base in Alaska.  One night, Sgt. Gonzalez left the base to go visit a civilian friend who worked for an oil company in Prudhoe Bay, Alaska, some 725 miles away.  (Prudhoe Bay, I should add, is the northern terminus of the Trans-Alaska Pipeline System, and as such, many petroleum companies maintain an office there).

Sgt. Gonzalez brought some personal mail for his friend, Mr. Garrett, and – initially unbeknownst to Gonzalez – accidentally co-mingled two classified documents with the pile of mail.  Upon reaching Prudhoe Bay, Sgt. Gonzalez discovered the error.  However, instead of immediately calling the Air Force, Sgt. Gonzalez instead decided to place the two classified documents in a desk drawer in Mr. Garrett’s room, intending to retrieve them on his way out.  As you might guess, Sgt. Gonzalez forgot the documents in the drawer and returned to base when the weekend was over.  (You may infer a pretty fun weekend.)

As it turns out, the desk into which the documents had been placed was not exclusively used by Mr. Garrett.  Rather, Mr. Garrett worked “one week on and one week off,” at Prudhoe Bay, alternating shifts with another oil company employee, Mr. Nicholas Scales.  Again as you might guess, Mr. Scales discovered the classified messages in the desk drawer and immediately notified his superiors, who in turn notified the Air Force.

Staff Sgt. Gonzalez was convicted under § 793(f), which was upheld on appeal.  He was ultimately sentenced to 43 days of confinement, discharged for bad conduct, and reduced in rank to “airman basic.”

The Gonzalez case doesn’t appear very similar to Secretary Clinton’s; Gonzalez knew he had taken classified documents, and made a (very poor) decision to hide them instead of notifying the proper authorities, and the documents were ultimately found by non-military personnel.

Perhaps the other cases will be more similar?

  1. United States v. Gaffney, 17 MJ 565 (USAF Ct. of Military Review, Apr. 15, 1983)

The next (f) case I found involved another Air Force Staff Sergeant; this time, Arthur J. Gaffney.  As part of his job duties, Sgt. Gaffney was required to destroy certain classified materials.  However, instead of destroying all of them, Sgt. Gaffney would sometimes take documents home with him and just throw them into a nearby dumpster.   Eventually, classified documents were found in the dumpster by neighborhood children – hey, we use to play in dumpsters back in the 1980s, don’t judge – and eventually, the Air Force was notified.

Sgt. Gaffney admitted that he knew he was required to destroy the documents, and that he knowingly falsified Air Force Standard Form 153 certifying that he had destroyed the documents when he in fact had not.  His excuse was that he was trying to do his job as quickly as possible so as to get home to be with his pregnant wife.  In Sgt. Gaffney’s own words: “My basic intention was at the times when I was to do destruction I really had wanted to be home.”  Id. at 566.  We do not have the details of his sentence.

As with the Gonzalez case, this doesn’t appear to be particularly similar to Secretary Clinton’s.

  1. United States v. Bernard, 1986 CMR LEXIS 2396 (USN-MC Court of Military Review, June 30, 1986).

This case isn’t particularly relevant; the defendant, Sonar Technician Peter C. Bernard of the U.S. Naval Reserves, stole his course notebook which was marked “SECRET,” and was subsequently charged with both larceny (for stealing the notebook) and violating 18 U.S.C. § 793(f)(1) for permitting the notebook to be removed from its proper chain of custody.  The USN-MC Court of Military Review agreed that Bernard could not be charged with both intentionally stealing the notebook and gross negligence in permitting the notebook to be lost, and vacated Bernard’s (f)(1) conviction.

  1. United States v. Chattin, 33 MJ 802 (USN-MC Ct. Military Review, Jul. 9, 1991).

This case involved a cryptologic technician, Scott J. Chattin (grade E-3), who took classified documents home and successfully persuaded the USN-MC Court of Military Review that he could not be charged under § 793(f)(1) because no third party ever discovered the documents.  The court agreed and found him not guilty.  This case was overturned by case #6 on this list, United States v. Roller, and is no longer considered good law.

  1. United States v. McGuinness, 35 MJ 149 (Ct. of Appeals for the Armed Forces, Sep. 14, 1992).

In this case, the court upheld the court-martial and conviction of Operations Specialist Chief James F. McGuinness (grade E-7), who, after more than a decade handling classified materials, nevertheless took 311 classified items to his home without authorization.  At his court-martial, Chief McGuinness told the military judge that he knew he was not authorized to retain the classified materials, admitting, “There was no doubt as to my responsibility.”  Id. at 153.

  1. United States v. Roller, 37 MJ 1093 (USN-MC Ct. of Military Review, Jul. 30, 1993), aff’dUnited States v. Roller, 42 MJ 264 (Ct. of Appeals for the Armed Forces, Aug. 23, 1995).

This case involves Marine Rickie Roller, who was responsible for “code word” and other classified material in the course of his job with the Marine Intelligence Division in Washington, D.C.  Roller often stored those materials in his desk.  Later, Roller requested a transfer to another department, and, in the course of switching jobs, he cleaned out his desk in Washington D.C.

Unfortunately, Roller threw the contents of his desk into a gym bag, and only afterwards discovered that he had accidentally taken classified materials as well as his personal belongings.  Later, Roller discovered the classified material, and was afraid that if he returned it, he would get in trouble.  Instead, he kept the material in his garage, intending to destroy it once he was transferred to his new job in California.  However, before the transfer took place, the moving company Roller had hired to move his belongings discovered some of the material.  The employee talked to a bail bondsman to whom he owed money, and as a result the Naval Investigative Service (NIS) was notified of the materials and an investigation was begun.  NIS recovered additional classified documents after searching through Roller’s possession, including documents marked “NOFORN,” “Secret,” and “Top Secret,” as well as doucments that were additionally marked as containing compartmented information.

Roller was tried by general court-martial, convicted of violating 18 U.S.C. § 793(f), and sentenced to three years’ confinement, reduction to E-1, forfeiture of $400.00 pay per month for 36 months and a dishonorable discharge.  On appeal, his conviction was upheld, although his sentence was suspended for one year all confinement in excess of ten months.

  1. United States v. Amazaki, 67 MF 666 (U.S. Army Ct. Crim. App., Mar. 31, 2009).

This case involved Army Major Kendall M. Amazaki, an Apache helicopter pilot who was charged with possession of child pornography.  In addition to the main charge, Maj. Amazaki had also taken materials he knew to be classified with him from Fort Campbell in Kentucky to his new residence in Hawaii.  He was sentenced under § 793(f).

  1. United States v. Courpalais, 2005 CCA LEXIS 74 (USAF Ct. Crim. App., Feb. 10, 2005) (unpub.)

In this unpublished decision, the court upheld the pled court-martial of Airman Brian K. Courpalais, who admitted that he knowingly took four classified photographs from their proper place of storage in order to show them to family members (and because one was “amusing”).  The court determined that his statements “evidence more than gross negligence. Indeed, the appellant’s statements plainly indicate his conduct was intentional.”  Airman Courpalais was dishonorably discharged, sentenced to confinement for 42 months, forfeiture of all pay and allowances, and reduction to E-1.

(This decision was marked “unpublished” and therefore cannot be cited as precedent.)

  1. United States v. Morelli, 1997 CCA LEXIS 425 (USN-MC Ct. of Crim. Appeals August 5, 1997) (unpub.).

This case involved Navy Lt. Robert Morelli, and, like Courpalais above, was unpublished.  I can find no information about the specific offense.

Summary So Far

Of the few cases that involve a prosecutor seeking a conviction under 18 U.S.C. § 793(f), noneinvolve facts remotely similar to Hillary Clinton’s email server.  To the contrary: each of these cases (insofar as the facts are known) involve a deliberate decision to hide or destroy information that the defendant knew to be confidential and improperly in his possession.

Thus, I conclude on the basis of the available information that Director Comey’s statement is substantially correct; namely, that “In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts.”

Why:  The Vagueness Doctrine

The fact that no prosecutor we know of has, so far, brought charges in a case with facts similar to Secretary Clinton’s does not end our inquiry; we also need to know why these charges haven’t been brought.  Here, we’re on more speculative grounds – but I think I have a good explanation.  To understand that explanation, however, we need to (briefly) leave the world of military convictions and enter the world of war profiteering.

In United States v. L. Cohen Grocery Co., 255 U.S. 81 (1921), the U.S. Supreme Court struck down a grocery store’s conviction for violating the Lever Act.  That law – which was designed to prohibit war profiteering during World War I – stated:

It is hereby made unlawful for any person willfully . . . to make any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries; to conspire, combine, agree, or arrange with any other person . . . (e) to exact excessive prices for any necessaries . . . Any person violating any of the provisions of this section upon conviction thereof shall be fined not exceeding $ 5,000 or be imprisoned for not more than two years, or both: . . .”  Id. at 86.

The defendant, the Cohen Grocery Company, was charged with two violations of the law for selling a 50-pound bag of sugar for $10.07 and a 100-pound bag of sugar for $ $ 19.50.”  Id. at 86.  But the Supreme Court overturned Cohen Grocery’s conviction, holding that the Lever Act itself was void for vagueness and therefore prohibited by the Fifth and Sixth Amendments to the Constitution.  Id. at 87-88.  The Supreme Court recognized that it violates the Bill of Rights to convict and sentence someone where the law itself is “vague, indefinite, and uncertain” and therefore makes it difficult for any person to know how to conform their conduct to the law.  Id.

In other words:  if a law is sufficiently vague, it is unconstitutional for the government to try and enforce it.  I believe, after sufficient review of the relevant case law, that there is a real question as to whether subsection (f) of the Espionage Act would survive a “vagueness” inquiry without requiring proof that the defendant knowingly violated the law.

First, the Supreme Court has already suggested that the only reason the Espionage Act is notunconstitutionally vague is because the then-operative provisions required intentional, willful conduct.  In Gorin v. United States, 312 U.S. 19 (1941), the Supreme Court looked at the definition of the term “national defense” (which is itself repeated in 18 U.S.C. § 793(f), holding:

But we find no uncertainty in this statute which deprives a person of the ability to predetermine whether a contemplated action is criminal under the provisions of this law.  The obvious delimiting words in the statute are those requiring “intent or reason to believe that the information to be obtained is to be used to the injury of the United States, or to the advantage of any foreign  nation.” This requires those prosecuted to have acted in bad faith. The sanctions apply only when scienter is established.  Where there is no occasion for secrecy, as with reports relating to national defense, published by authority of Congress or the military departments, there can, of course, in all likelihood be no reasonable intent to give an advantage to a foreign government.

Id. at 27-28.  See also United States v. Truong Dinh Hung, 629 F.2d 908, 919 (1980) (“Even though § 793(e) does not include scienter language identical to the language of § 794(a), it does require that the accused “willfully” transmit the information. Evidently relying upon this language, the trial judge instructed the jury that it must find that the defendants acted in bad faith before it could convict, and defined bad faith as a “design to mislead or deceive another. That is, not prompted by an honest mistake as to one’s duties, but prompted by some personal or underhanded motive.” This instruction more than cured any possible overbreadth of § 793(e).”) (emphasis added); United States v. Dedeyan, 584 F.2d 36, 38-40 (4th Cir. 1978) (intent instruction cured any possible overbreadth in statute).

In other words:  the reason why prosecutors may not be bringing cases pursuant to § 793(f) without evidence that the defendant intentionally and knowingly removed confidential information – even though such a requirement is not spelled out in the statute itself – may be because the statute might not survive judicial scrutiny absent those facts.  It might be unconstitutionally vague.


My research indicates that Director Comey’s statement was, in all significant respects, correct.  Prosecutors do not bring cases on facts similar to those present in Hillary Clinton’s case.  In particular, I can find no case, anywhere, in which any person has ever been sentenced under the Espionage Act without evidence that said person unambiguously knew the material they were removing was confidential.  Since that fact is not present here, I conclude that Hillary Clinton received no special treatment when the government declined to indict her.

September 26, 2016 Blog