In a press release and briefing today, FBI Director James Comey announced that the Federal Bureau of Investigation, while referring the Bureau’s investigation into the Hillary Clinton Email Server Affair “to the Department of Justice for a prosecutive decision,” announced that the FBI would be “expressing to [the Department of] Justice our view that no charges are appropriate in this case.”
In the release and in his remarks today, FBI Director Comey asserted that there is evidence showing that Clinton and her staff were EXTREMELY CARELESS in their treatment of the emails that included sensitive and top secret materials.
Comey's remarks evidence a stunning omission. In his release, Comey discusses the referral of the Clinton matter to the Department of Justice and announces that the FBI will not recommend prosecution. What could be missing from a major announcement of this sort? What glaring omission is explained only by its inexplicable irrelevance to Comey's remarks? What Comey leaves entirely unstated in his remarks is that a federal criminal statute makes it a felony to act with GROSS NEGLIGENCE in the handing of such materials.
Still, there is the question a reasonable person must ask: Does Hillary Clinton's "EXTREME CARELESSNESS" equate with the federal criminal law's requirement of "GROSS NEGLIGENCE?"
That's a great question, Jim!How often have we been told that we are a Nation under the "Rule of Law," one in which one’s status and station in life SHOULD NOT AND DOES NOT determine whether one is bound to obey the law? How often has the Patriotic Chorus elevated this distinguishing feature of America over third world tyrannies and tinpot dictatorships? THE Rule of Law. The RULE of Law. The Rule of LAW. THE RULE OF LAW. In fact, under the Rule of Law, only a jury can decide whether Hillary Clinton is more of a Bozo the Clown in the handling of sensitive government information, or more of an Insane Clown and her Posse. Indeed, in a case of such serious political consequence, the wise approach would be for the Department of Justice to present the case to a grand jury. True enough, a grand jury, as is sometimes said, could be convinced to indict a ham sandwich, if a prosecutor were inclined to prosecute comestibles. The risk of damage to the reputations of the FBI and the Department of Justice – in a case already described as presenting evidence of EXTREME CARELESSNESS – the only wise move of astute prosecutors would be to ask a grand jury to decide whether there was probable cause to believe that Clinton's EXTREME CARELESSNESS equated with GROSS NEGLIGENCE. Then, even if a grand jury concluded that Clinton's EXTREME CARELESSNESS satisfied the statutory prohibition of GROSS NEGLIGENCE, it would remain for a trial jury to decide the exact same question to the certainty commonly called "beyond reasonable doubt." Frankly, it seems suspect for FBI Director Comey to be in such a rush to proclaim the EXTREME CARELESSNESS of Clinton and her staff and just as suddenly to doubt that a prosecutable offense had been discovered.
Still, Comey did use the phrase “EXTREME CARELESSNESS” and the federal statute punishes “GROSS NEGLIGENCE.” While courts and judges may define the meaning of “GROSS NEGLIGENCE,” it is the peculiar function of juries – grand juries and trial juries – to apply law to facts. Here, both juries would be called on to decide whether Clinton’s EXTREME CARELESSNESS is the federal statute’s GROSS NEGLIGENCE. Unsurprisingly, courts have been called on in many cases over many years to explain the legal term “GROSS NEGLIGENCE.”
One of America's early Supreme Court Justices, and one of its most highly regarded jurists, gave this view of how to distinguish ordinary and gross negligence:
"If a bag of apples were left in a street for a short time without a person to guard it, it would most certainly not be more than ordinary neglect. But if the bag were of jewels or of gold, such conduct would be gross negligence. In short care and diligence are to be proportioned to the value of the goods, and the temptation and facility of stealing them and the danger of losing them."
Tracy v. Wood, 24 F. Cas. 117 (Story, Circuit Justice, C.C.D.R.I. 1822).
So, in two nearly identical circumstances, the exact same conduct might just be good old regular negligence – the kind of negligence evidenced when a driver briefly looks down and, as a result of his brief inattention, rear ends the vehicle in front of him – or it might, based on the value of what is at stake and the risk of harm – be the sort of negligence that is evidenced when a parent leaves an infant in a closed car on hot sunny afternoon.
Still not clear?
Suppose we substitute different "goods" for the apples and jewels Justice Story employed in his illustration:
"If a bag of old newspapers were left in a street for a short time without a person to guard it, it would most certainly not be more than ordinary neglect. But if the bag were of top secret documents and classified information, such conduct would be gross negligence. In short care and diligence are to be proportioned to the value of the goods, and the temptation and facility of stealing them and the danger of losing them."I think that helps to clarify what is GROSS NEGLIGENCE in the Clinton Email Server Affair, leaving me with just one question:
How is it that FBI Director Comey doesn’t get it?
