Former FBI Director James Comey’s explanation for not prosecuting Hillary Clinton was always improbable. Now it seems impossible.
The Espionage Act makes it a crime to mishandle classified documents “through gross negligence” (18 USC 793-f). Punishment upon conviction carries a penalty of up to 10 years in prison.
With 110 emails on Clinton’s private server that were classified at the time they were sent or received, the Democratic nominee for president could have been prosecuted on 110 separate felony counts. Yet Comey scuttled the case.
But a story in The Hill this week by John Solomon says a newly discovered document shows that then-FBI Director Comey authored a draft statement accusing Clinton of mishandling classified documents and being “grossly negligent.”
The document was confirmed by Sen. Charles Grassley, R-Iowa, who is chairman of the Senate Judiciary Committee. It was written a full two months before Clinton was ever interviewed by the FBI.
However, sometime later the words “gross negligence” were edited out with red lines. The words “extremely careless” were substituted. This would appear to show that Comey knew Clinton violated the law but subsequently resolved to conjure a way to exonerate her by altering the language.
Comey didn’t do a very good job. The two terms are largely synonymous under the law.
Many standard jury instructions, such as those in California and elsewhere, say the two terms mean the same thing. That is, gross negligence is an extreme departure from ordinary care. In other words, extremely careless behavior.