January 1, 2003: An FBI agent is charged with gross negligence but pleads guilty to lesser charges.

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Ex FBI agent James J. Smith (Credit: The Associated Press)

James Smith is an FBI agent for more than 20 years, running counterintelligence operations against Chinese spies. In 2003, three years after retiring from the FBI, he is arrested by the FBI and charged with gross negligence. He had a sexual relationship with a longtime source, Katrina Leung. He is alleged to have carried classified documents in a briefcase and sometimes left the case open and unattended while he visited her. Leung was believed to be a double agent working for the Chinese government but loyal to the FBI. However, she copied some of the documents, which were found in her safe. Smith is also charged with wire fraud for submitting false reports on Leung’s activities as an FBI asset.

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Katrina Leung makes the front cover of U.S. News & World Report on November 2, 2003. (Credit: public domain)

The original charges against Smith are later dropped in a plea deal whereby he pleads guilty to a single felony count of making false statements by failing to mention his affair with Leung. He is sentenced to three months of home confinement, three years of probation, and a $10,000 fine. It is alleged there was no damage to national security because the classified information never got further than Leung when she was arrested at the same time he was.

Leung is charged with obtaining and keeping classified documents in violation of the Espionage Act, but without an explicit charge of espionage. She also strikes a plea deal, pleading guilty to making a false statement and filing a false tax return. She is sentenced to probation.

In July 2016, FBI Director James Comey will announce he is not going to charge Clinton with gross negligence, claiming only one other person, Smith, has been charged with it in 100 years. (Politico, 7/7/2016)

July 5, 2016: FBI Director Comey announces he will not recommend Clinton’s indictment on any charge, but he calls her “extremely careless” in handling highly classified information.

FBI Director James Comey announces his recommendation for Clinton and her aides on July 5, 2016. (Credit: Cliff Owen / The Associated Press)

FBI Director James Comey announces his recommendation in a press conference on July 5, 2016. (Credit: Cliff Owen / The Associated Press)

FBI Director James Comey gives a public speech in front of a group of reporters. The timing is surprising, since this brings an end to the FBI’s investigation of Clinton’s email practices, and just a Sunday and the Fourth of July holiday separate this from the FBI’s interview of Clinton on July 2, 2016. Comey spends most of his speech criticizing Clinton, but ends it by saying he will not recommend that the Justice Department pursue any indictment of Clinton or her aides.

Comey’s fifteen-minute speech includes the following information, in order, with key phrases bolded to assist in understanding.

Comey begins by describing the FBI investigation:

  • The investigation started with a referral from Intelligence Community Inspector General Charles McCullough, and “focused on whether classified information was transmitted” on Clinton’s personal email server during her time as secretary of state. It specifically “looked at whether there is evidence classified information was improperly stored or transmitted on that personal system, in violation of a federal statute making it a felony to mishandle classified information either intentionally or in a grossly negligent way, or a second statute making it a misdemeanor to knowingly remove classified information from appropriate systems or storage facilities.” The FBI “also investigated to determine whether there is evidence of computer intrusion in connection with the personal email server by any foreign power, or other hostile actors.”
  • The FBI found that Clinton “used several different servers and administrators of those servers during her four years at the State Department, and used numerous mobile devices to view and send email on that personal domain. As new servers and equipment were employed, older servers were taken out of service, stored, and decommissioned in various ways…”
  • The FBI analyzed the over 30,000 work emails that Clinton did turn over to the State Department in December 2014, working with other US government departments to determine which emails contained truly classified information at the time they were sent, and which ones were justifiably classified later.
  • James Comey (Credit: Fox News)

    James Comey (Credit: Fox News)

    From the group of 30,068 emails Clinton returned to the State Department, “110 emails in 52 email chains have been determined by the owning agency to contain classified information at the time they were sent or received. Eight of those chains contained information that was ‘top secret’ at the time they were sent; 36 chains contained ‘secret’ information at the time; and eight contained ‘confidential’ information, which is the lowest level of classification. Separate from those, about 2,000 additional emails were ‘up-classified’ to make them ‘confidential’; the information in those had not been classified at the time the emails were sent.”

  • It had previously been reported that the FBI had recovered most or all of the 31,830 emails that Clinton had deleted, allegedly because they contained personal information only. However, Comey reveals that was not the case, and thousands of emails were not recovered. He gives an example of how when one of Clinton’s servers was decommissioned in 2013, the email was removed and broken up into millions of fragments.
  • The FBI “discovered several thousand work-related emails” that were not included in the 30,068 emails Clinton returned to the State Department, even though Clinton claimed under oath that she had returned all her work-related emails. The FBI found these after they “had been deleted over the years and we found traces of them on devices that supported or were connected to the private email domain.” Others were found in the archived government email accounts of other government employees whom Clinton frequently communicated with. Still others were found “from the laborious review of the millions of email fragments” of the server decommissioned in 2013.
  • Out of these additional work emails, three were classified at the time they were sent or received – none at the ‘top secret’ level, one at the ‘secret’ level, and two at the ‘confidential’ level. None were found to have been deemed classified later.
  • Furthermore, Comey claims “we found no evidence that any of the additional work-related emails were intentionally deleted in an effort to conceal them. Our assessment is that, like many email users, Secretary Clinton periodically deleted emails or emails were purged from the system when devices were changed. Because she was not using a government account—or even a commercial account like Gmail—there was no archiving at all of her emails, so it is not surprising that we discovered emails that were not on Secretary Clinton’s system in 2014, when she produced the 30,000 emails to the State Department.”
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    The three Clinton attorneys who deleted emails are David Kendall (left), Cheryl Mills (center), and Heather Samuelson (right). (Credit: public domain)

    However, he also admits that “It could also be that some of the additional work-related emails we recovered were among those deleted as ‘personal’ by Secretary Clinton’s lawyers when they reviewed and sorted her emails for production in 2014.” He claims that the three lawyers who sorted the emails for Clinton in late 2014 (David Kendall, Cheryl Mills, and Heather Samuelson) “did not individually read the content of all of her emails…” Instead, they used keyword searches to determine which emails were work related, and it is “highly likely their search terms missed some work-related emails” that were later found by the FBI elsewhere.

  • Comey states it is “likely” that some emails may have disappeared forever. because Clinton’s three lawyers “deleted all emails they did not return to State, and the lawyers cleaned their devices in such a way as to preclude complete forensic recovery.” But he says that after interviews and technical examination, “we believe our investigation has been sufficient to give us reasonable confidence there was no intentional misconduct in connection with that sorting effort.”

Comey then begins stating his findings:

  • “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.”
  • As an example, he points out that “seven email chains concern matters that were classified at the ‘Top Secret/Special Access Program’ [TP/SAP] level when they were sent and received. These chains involved Secretary Clinton both sending emails about those matters and receiving emails 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.”
  • He adds that it was a similar situation with emails classified at the “secret” level when they were sent, although he doesn’t specify how many.
  • He comments, “None of these emails should have been on any kind of unclassified system, but their presence is especially concerning because all of these emails were housed on unclassified personal servers not even supported by full-time security staff, like those found at departments and agencies of the US government—or even with a commercial service like Gmail.”
  • He notes that “only a very small number of the emails containing classified information bore markings indicating the presence of classified information. But even if information is not marked ‘classified’ in an email, participants who know or should know that the subject matter is classified are still obligated to protect it.”
  • He then criticizes the State Department as a whole. The FBI found evidence that “the security culture” of the State Department “was generally lacking in the kind of care for classified information found elsewhere in the government.” This was especially true regarding the use of unclassified email systems.
  • Then he addresses whether “hostile actors” were able to gain access to Clinton’s emails. Although no direct evidence of any successful hacking was found, he points out that “given the nature of the system and of the actors potentially involved, we assess that we would be unlikely to see such direct evidence. We do assess that hostile actors gained access to the private commercial email accounts of people with whom Secretary Clinton was in regular contact from her personal account. We also assess that Secretary Clinton’s use of a personal email domain was both known by a large number of people and readily apparent. She also used her personal email extensively while outside the United States, including sending and receiving work-related emails in the territory of sophisticated adversaries. Given that combination of factors, we assess it is possible that hostile actors gained access to Secretary Clinton’s personal email account.”

After laying out the evidence of what the FBI found, Comey moves to the FBI’s recommendation to the Justice Department. He admits that it is highly unusual to publicly reveal the FBI’s recommendation, but “in this case, given the importance of the matter, I think unusual transparency is in order.”

James Comey (Credit: NPR)

James Comey (Credit: NPR)

Then he comes to these conclusions:

  • “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. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past.”
  • To justify this decision, he claims he examined other cases involving the mishandling or removal of classified information, and “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.”
  • He then says, “To be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences. To the contrary, those individuals are often subject to security or administrative sanctions. But that is not what we are deciding now. As a result, although the Department of Justice makes final decisions on matters like this, we are expressing to Justice our view that no charges are appropriate in this case.”
  • He concludes by saying the FBI’s investigation was done competently, honestly, and independently, and without any kind of outside influence.

He doesn’t address the possibility of recommending the indictment of any of Clinton’s aides or other figures like Sid Blumenthal or Justin Cooper. He also doesn’t make any mention of the Clinton Foundation, though there have been media reports the FBI has been investigating it as well. After finishing his speech, he leaves without taking any questions from the media. (Federal Bureau of Investigation, 7/5/2016)

July 5, 2016: A former FBI assistant director believes Comey made the case Clinton should be indicted for gross negligence and is puzzled that Comey concluded otherwise.

Chris Swecker (Credit: North Carolina Government Crime Commission)

Chris Swecker (Credit: North Carolina Government Crime Commission)

Chris Swecker is a former FBI assistant director for the Criminal Investigative Division. He comments on FBI Director James Comey’s announcement earlier in the day that the FBI will not recommend that Clinton be indicted. Swecker believes that Comey should have recommended an indictment, as “he seemed to be building a case for that and he laid out what I thought were the elements under the gross negligence aspect of it, so I was very surprised at the end when he said that there was a recommendation of no prosecution. And also, given the fact-based nature of this and the statement that no reasonable prosecutor would entertain prosecution, I don’t think that’s the standard.”

He concludes, “The facts are the facts, and in this case I think there are a lot of things that are very unusual about this.” (MSNBC, 7/5/2016)

 

July 5, 2016: Speaker of the House Ryan says Republicans will hold Congressional hearings to learn more about the FBI’s decision to not recommend an indictment for Clinton.

Congressman Paul Ryan (Credit: public domain)

Congressman Paul Ryan (Credit: public domain)

Paul Ryan, the Republican speaker of the House, says he thought FBI Director James Comey was going to recommend prosecution, based on the first part of Comey’s public speech earlier in the day. He says Comey “shredded” Clinton’s defense of her email practices while serving as secretary of state, she had been “grossly negligent,” and “people have been convicted for far less.”

Ryan says the fact that the FBI decided not to recommend charges “underscores the belief that the Clintons live above the law.” He explains Republican hearings will be lead by House Oversight and Government Reform Committee Chair Jason Chaffetz. Ryan also says Clinton should be blocked from accessing classified information as a presidential candidate, and the FBI should release all of its findings regarding the Clinton email investigation. (The Hill, 7/5/2016)

July 6, 2016: A former FBI assistant director believes Comey could have indicted Clinton for gross negligence, but introduced an intent element that doesn’t apply.

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Ron Hosko (Credit: CNN)

Former FBI Assistant Director Ron Hosko, who worked under FBI Director James Comey, comments on Comey’s decision not to recommend Clinton’s indictment. He believes Comey has “impeccable morality and ethics,” and says, “For an indictment you need probable cause, but prosecutors and investigators are looking for far more. You’re looking down the road at a substantial likelihood of success at trial that’s beyond a reasonable doubt.”

However, Hosko also believes the elements for an indictment were clearly met based on the wording of the federal “gross negligence” statute to which Comey referred in his July 5, 2016 public speech. He notes that Comey stated, “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.”

Hosko highlights Comey’s use of the phrase “extremely careless.” “To me, that has the same DNA as gross negligence that the statute requires. Those are identical twins.” He says that Comey seemed to introduce an element of intent that is not in that statute. (CNBC, 7/6/2016)

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)