May 3, 2000: Secretary of State Madeline Albright chastises all State Department employees for being careless about security.

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Secretary of State Madeline Albright (Credit: Politico)

Albright gives a speech in front of 800 State Department officials in Washington, DC, that is also broadcast to other department officials in other states and countries. She says, ”I don’t care how skilled you are as a diplomat, how brilliant you may be at meetings, or how creative you are as an administrator, if you are not professional about security, you are a failure.” Her speech comes after some recently reported security breaches in her department, including the disappearance of a laptop containing classified information. She adds, “You may have seen reports indicating that I am furious about these incidents. Well, I am, and I hope you are, too.”

According to the New York Times, US diplomats privately acknowledge that they are sometimes cavalier about security. One unnamed longtime department official says, ”Nobody cares about security within the department.” (The New York Times, 5/4/2000)

July 7, 2016: Clinton won’t face punishment if she wins the presidency, but some of her former aides could.

Since Clinton is the presumptive Democratic nominee for president, she is unlikely to face any punishment for her email practices, despite FBI Director James Comey calling her “extremely careless” with highly classified information. Once she officially becomes the Democratic presidential nominee, she will automatically get security briefings. If she wins the presidency in the November 2016 election, she won’t have to apply for a security clearance.

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William Cowden (Credit: public domain)

National security lawyer Gregory Greiner says that if a typical low-level government employee did what Clinton did, “he would have lost his clearance and lost his job.” William Cowden,  a former Justice Department lawyer, similar says, “If she were currently a federal employee, she would be sanctioned.” But Clinton isn’t currently employed in the government, and the FBI chose not to take away Clinton’s security clearance during their investigation into her email practices, even though that is routine in similar cases.

Mark Zaid, a Washington lawyer who specializes in national security employment law, says he is particularly interested to see whether Clinton’s former aides will get security clearances if she wins the presidency. “Having seen the hundreds of people I’ve represented over a 20-plus year career who have lost their clearances for doing far less” than Clinton and her top aides, “I’m going to be really, really bothered and troubled” if they come out unscathed in the security clearance process.

The Washington Post notes that “losing a security clearance often is the equivalent of being fired. In some agencies, all jobs or most of the good ones, require a security clearance. Many of the individual contractors who work for those agencies also must have a security clearance. If you lose it, you could lose the ability to work in your field.” (The Washington Post, 7/7/2016)

July 7, 2016: Comey says he didn’t recommend Clinton be charged because he couldn’t prove intent, despite the gross negligence law.

In Congressional testimony, FBI Director James Comey essentially argues that Clinton was guilty of gross negligence, which doesn’t require proof of intent, but he was only willing to indict her on intent-related charges, and there wasn’t enough evidence for that. He says: “Certainly, she should have known not to send classified information. As I said, that’s the definition of negligent. I think she was extremely careless. I think she was negligent. That, I could establish. What we can’t establish is that she acted with the necessary criminal intent.” (CNN, 7/7/2016)

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Representative William Hurd (Credit: Alchetron)

Representative William Hurd (R) asks, “What does it take for someone to misuse classified information and get in trouble for it?”

Comey answers, “It takes mishandling it and criminal intent.” He admits that Clinton mishandled the information by having it on a private server, but he doesn’t see evidence of criminal intent. (CNN, 7/7/2016)

He further comments, “There’s not evidence beyond a reasonable doubt that she knew she was receiving classified information or that she intended to retain it on her server. There’s evidence of that, but when I said there’s not clear evidence of intent, that’s what I meant. I could not, even if the Department of Justice would bring that case, I could not prove beyond a reasonable doubt those two elements.” (CNN, 7/7/2016)

At another point in the hearing, he argues, “The question of whether [what she did] amounts to gross negligence frankly is really not at the center of this because when I look at the history of the prosecutions and see, it’s been one case brought on a gross negligence theory.” (CNN, 7/7/2016)

The law criminalizing gross negligence in national security lapses was enacted in 1917. Comey says, “I know from 30 years there’s no way anybody at the Department of Justice is bringing a case against John Doe or Hillary Clinton for the second time in 100 years based on those facts.”

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James Smith (Credit: CNN)

The FBI later confirms to Politico that James Smith is the one case Comey is referring to. Smith, a longtime FBI agent, was arrested in 2003 and charged with gross negligence. However, he later pleaded guilty in return for having the charges reduced to one count of making false statements. (Politico, 7/7/2016)

But Comey’s claim that gross negligence has only been used once in recent decades is true only if one looks at cases brought by the Justice Department. Cases have also been brought in the military justice system.

Additionally, Politico points out, “Comey’s universe was also limited to cases actually brought, as opposed to threatened. The gross negligence charge is often on the table when prosecutors persuade defendants to plead guilty to the lesser misdemeanor offense of mishandling classified information.” (Politico, 7/7/2016)

Later in the hearing, Representative Blake Farenthold (R) says, “So Congress when they enacted that statute said ‘gross negligence.’ That doesn’t say ‘intent.’ So what are we going to have to enact to get you guys to prosecute something based on negligence or gross negligence? Are we going to have to add, ‘and oh by the way, we don’t mean — we really do mean you don’t have to have intent there?'”

Comey replies, “That’s a conversation for you all to have with the Department of Justice. But it would have to be something more than the statute enacted in 1917. Because for 99 years, they’ve been very worried about its constitutionality.” (CNN, 7/7/2016)

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Representative Tim Walberg (Credit: Twitter)

Representative Tim Walberg (R) asks him, “Do you believe that the — that since the Department of Justice hasn’t used the statute Congress passed, it’s invalid?”

Comey responds, “No. I think they are worried that it is invalid, that it will be challenged on Constitutional grounds, which is why they’ve used it extraordinarily sparingly in the decades.” (CNN, 7/7/2016)

During the hearing, it is pointed out several times that felony crime based on negligence and not intent are common at both the state and federal level, for intance manslaughter instead of murder, and their consitutionality has never been successfully challenged. At one point, Comey admits other negligence cases have been sustained in the federal system: “They’re mostly, as you talked about earlier, in the environmental and Food and Drug Administration [FDA] area.” (CNN, 7/7/2016)

But he is adamant about not indicting any cases without being able to prove intent. At one point, he even suggests he is philosophically opposed to any laws based on negligence when he mentions, “When I was in the private sector, I did a lot of work with the Chamber of Commerce to stop the criminalization of negligence in the United States.” (CNN, 7/7/2016)

July 7, 2016: The non-prosecution of Clinton could make it more difficult to get convictions in other cases.

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Gregory Greiner (Credit: public domain)

In the wake of FBI Director James Comey’s decision not to recommend Clinton’s indictment, the Washington Post reports, “The extraordinary case of Hillary Clinton and her emails raises intriguing questions for federal employees facing charges related to classified materials. … Because she has escaped prosecution, will others, too?”

Mark Zaid, a lawyer who specializes in national security employment cases, says that after former CIA Director David Petraeus got what was seen as a very generous plea deal, resulting in no prison time despite pleading guilty to mishandling classified material, he used that case to push for leniency for one of his clients “right away. I mean, literally, the ink was not dry.” Zaid’s client also was charged with mishandling classified information, but “We talked to the prosecutors and said, ‘We want the Petraeus deal.’ We got it.” Zaid plans to use Clinton’s case to push for leniency in future cases.

National security lawyer Gregory Greiner similarly argues that after Clinton’s non-prosecution, defense lawyers will try to raise the bar for prosecutors. He says that it only takes one person on a jury to argue that “this guy didn’t do anything different than what Hillary Clinton did.” (The Washington Post, 7/7/2016)