By Ron Sievert, contributor
As I read the recent comments of FBI Director James Comey regarding his recommendation not to pursue criminal charges against Hillary Clinton over the use of a private email server, I naturally wondered why an investigator was making final judgments on the interpretation of the law when that function has always been assigned first to the Department of Justice and U.S. Attorney.
In doing so, he ignored one statute (18 USC 793 (f) related to gross negligence — see the recent The Hill article on the execution of an Iranian spy) — apparently disregarded the knowing destruction of government documents, and then, perhaps of equal legal concern, he added the wrong mental state to the statute prohibiting knowing removal of classified documents with intent to retain them at an unauthorized location. (18 USC 1924).
Specifically he required that the government prove “willfulness” or knowing violation of a specific law under 1924 before he would proceed against the improper removal of thousands of classified documents to her private Blackberry and server.
Ignorance of the language of the actual statutes was thus a defense. In his congressional hearing he seemed to attribute this to DOJ. Although I have no doubt that some in DOJ, given the Department’s reputation for caution, might have gone overboard and asked for this mental state, it is not the law and was never applied that way in my 25 years as a federal prosecutor with the exception of tax, export and currency prosecutions.
