Federal Bureau of Intentions

When FBI Director James Comey announced he wouldn’t recommend criminal charges against Secretary of State Hillary Clinton for mishandling highly classified information on her personal email server, he seemed to offer her prosecution and defense in the same breath: Her conduct was reckless and potentially illegal. But she didn’t mean to do it.

Comey mentioned Clinton’s intentions near the beginning of his July 5 press conference: “Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate the law … there is evidence they were extremely careless in their handling of very sensitive, highly classified information.”

After piling high the ways Clinton had transmitted Top Secret information through methods “no reasonable person” in her position would have thought acceptable, Comey declared, “Although there is evidence of potential violations of the statutes … our judgment is that no reasonable prosecutor would bring such a case.”

How would a prosecutor decide? Again, Comey mentioned “intent” as one of the major factors to consider. The problem: Intent isn’t in the statute.

Section 793(f) of Title 18 of the federal penal code says a person with lawful control of a document relating to national defense is guilty of an offense if he “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.”

We know Clinton allowed highly classified information to be transmitted apart from the State Department’s protected email server. We know eight email chains that the FBI reviewed contained Top Secret material. (Scores more were classified.)

We also know it’s possible “hostile actors” hacked into her personal email account. Comey said the FBI didn’t find evidence of successful hacking, but given the sophistication of such intruders “we assess we would be unlikely to see such direct evidence.”

We don’t know Clinton’s intentions, but this statute doesn’t demand it. The question seems to be whether a person compromised national security through gross negligence, whether intentionally or not.

A lesser charge Comey could have pursued does include intent, specifically when a person “knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location. …”

Many would argue Clinton intentionally stored national security information at a home server the government didn’t authorize.

A reasonable prosecutor could have examined the substantial evidence the FBI presented and drawn evidence-based conclusions about whether Clinton violated any laws. It seems baffling that Comey didn’t recommend it.

One thing Comey did recommend: If you’re an average citizen or government employee, don’t expect to get away with Clinton’s behavior. Indeed, the agency director warned: “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 actions.”

Comey didn’t directly threaten legal action, but it sounded as if there might be two sets of rules: one for regular people and one for powerful people seeking the highest administrative and security post in the land.