Don’t Blame Comey, Blame Mens Rea: The Real Reason Hillary Clinton Won’t Be Charged In Email Probe But Likely Should

FBI Director James Comey revealed today that “no reasonable prosecutor” would charge Hillary Clinton for her use of a private email server due to one glaring problem with the case, a lack of mens rea. Though Comey acknowledged in his public statement that evidence proved former Secretary of State and presidential hopeful Hillary Clinton had sent and received documents that were classified at the time of transmission on a private and unsecured email server, the FBI Director says that they could not prove that Clinton knew she was committing a crime. This lack of mens rea, or the intention or knowledge of wrongdoing that constitutes part of a crime, is what seemingly left Comey without grounds to recommend prosecution. Let’s take a look at Comey’s statement and break down exactly what it all means for the Clinton presidential campaign.

The legal dictionary notes that a fundamental principle of Criminal Law is that a crime consists of both a mental and a physical element. To commit a crime, a person must have the mental aspect which is mens rea, awareness of the fact that his or her conduct is criminal, and actus reus, the criminal act itself, which is the physical element. If a prosecutor cannot prove that the individual charged with a crime knew that the act they were committing was a crime, the individual should not legally be prosecuted.

Comey pointed out that actus reus was found in the Clinton case with 110 e-mails in 52 e-mail chains determined to contain classified information at the time they were sent or received. However, Comey could not find any mens rea, or willful knowledge or intent, in the case. Therefore, FBI Director James Comey recommended that Hillary Clinton not face criminal prosecution for her use of a private email server when transmitting confidential information due to the lack of evidence regarding the mental aspect of the crime at hand.

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In Comey’s public statement which was transcribed by the Washington Post, the FBI Director noted on several occasions that he found “clear evidence” of Secretary Clinton’s violation of laws regarding the handling of classified information. However, he would go on to say there was no evidence the disregard was intentional.

“Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of the classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.”

Comey says that it is the judgment of the FBI that “no reasonable persecutor” would bring a case against Clinton and all of his comments for this recommendation seem to revolve around the lack of mens rea presented in the case investigation.

“Although there is evidence of potential violation of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case.”

In fact, Comey went so far as to outline exactly what he was looking for when determining if Clinton should be prosecuted for the negligent handling of the classified emails. He notes that one of the things that prosecutors will look into when determining if they should prosecute is how cases were handled in the past. He claims that in “all the cases prosecuted” for similar behaviors, there was “clearly intentional or willful mishandling” of the information presented. He says that this willful and intentional aspect was not found in the Clinton case.

“All the cases prosecuted involve some combination of clearly intentional or willful mishandling of classified information or vast quantities of information exposed in such a way to support an inference of intentional misconduct or indications of disloyalty to the United States or an obstruction of justice. But we do not see those things here.”

Comey points out that mens rea was not uncovered during the investigation but did say on numerous occasions that Clinton was guilty of negligence and noted that anyone else in her position would have (and should have) known that the handling of the classified documents of improper. While the comments seem rather straightforward, it is this assumption that “a reasonable person” in the same situation would have known better that could have been used to prosecute Clinton despite the lack of conventional mens rea. Criminal negligence can be used as a replacement for mens rea in cases such as Clinton’s if the “reasonable person” standard is met. In other words, if it is proved in court that a “reasonable person” in the same situation would have known better, the negligence can be used in place of conventional mens rea.

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In fact, a similar case from 2015 reported by the Navy Times indicates that Bryan Nishimura of Folsom, California, was seemingly prosecuted for a similar crime despite his lack of intent to commit a crime. The criminal negligence charge was used in place of mens rea in a manner that could likely be utilized against Clinton. Nishimura pleaded guilty to the unauthorized removal and retention of classified materials after he was charged with removing classified documents and housing them at his home before returning them at the end of his deployment.

An FBI search of Nishimura’s home found additional classified materials but did not reveal evidence he intended to distribute them. Therefore, it seems the same agency which investigated Clinton, the FBI, recommended prosecuting Nishimura despite the lack of evidence surrounding his intent, the very reason that it appears they are not recommending prosecution of Clinton. Nishimura was ultimately punished by being sentenced to two years of probation, $7,500 fine and was ordered to surrender his security clearance. He was also barred from seeking a future security clearance.

Therefore, Comey’s statement that “this is not to suggest” that someone else engaged in the same activity would not face consequences makes more sense. Comey outlined what some of those consequences may be including security and administrative sanctions.

“To be clear, this is not to suggest that in similar circumstances, a person who gauged this activity would gauge no consequences. To the contrary, those individuals are often subject to security or administrative sanctions, but that is not what we are deciding now.”

Therefore, it appears that though Hillary Clinton will not face criminal charges for the improper handling of classified information, she could potentially face security and administrative sanctions due to the proven negligence. However, sanctions are unlikely as Hillary Clinton is the presumptive Democrat presidential nominee and security sanctions are not likely to be placed on the former Secretary of State as President Barack Obama was seen campaigning with Clinton shortly after Comey’s announcement.

In fact, Obama praised Clinton as the most qualified person for the office in the history of general elections.

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What do you think about FBI Director James Comey’s speech regarding the Hillary Clinton investigation? Do you think the Department of Justice should seek to prosecute Hillary Clinton while utilizing criminal negligence as a surrogate for mens rea?

[Image by Chuck Burton/AP Photo]