I have been a practicing attorney for quite a few years now, and tend to follow news stories that deal with points of law with more than a little interest.  The result of the F.B.I.’s investigation into Hillary Clinton’s email system (and the way that classified information was handled) has been all over the blogosphere for the last few days.  And there are some things that I don’t understand.

I should preface this discussion with this statement.  One constant in the way the press reports legal issues is that reporters often lack a good grasp of the issues or of some of the finer points of the law.  It has been my experience that whenever I have been personally involved in a matter and then read about it later in a press account, I wonder if the story was about my case at all.  Put another way, whenever I have had firsthand knowledge of a case, I have almost always understood how it came out the way it did.  I may not agree with the result, but at least I understand how that result was reached.

I also want to say at the outset that this discussion is not going to be about the actual facts of what happened with those emails.  There are enough other sites frothing over this, from one perspective or the other.  My thoughts involve law and procedure.

In this email story, there are several things that I don’t understand.  It is possible that I don’t understand these things because they were not accurately reported, or because there were relevant facts or considerations to which I am not privy.  Or, perhaps not.  But at any rate, here are some of the things I don’t understand.

First, I don’t understand why F.B.I. Director James Comey, after laying out several failures in the handling of classified information, concluded that because there was no evidence of actual intent, there should be no prosecution.  One of the relevant statutes is found at  18 USC 793(f).  It states:

“Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) 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, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—Shall be fined under this title or imprisoned not more than ten years, or both.”

The statute explicitly says that where one is grossly negligent in the handling of information relating to the national defense, that person is subject to possible imprisonment.  Gross negligence has never required a finding of intent.

Curious about this, I did a little research into case law under the D. C. Circuit Court of Appeals, which is the District of the courts where these questions would likely be litigated. Federal case law recognizes a continuum that runs from ordinary negligence (which is the failure to exercise reasonable care), through gross negligence, to recklessness and finally to intentional conduct.  Recklessness has been further subdivided to mean a sort of heightened gross negligence on its lower end and a sort of quasi or implied intent at its high end.  See, e.g., Saba v. Compagne Nationale Air France, 78 F.3d 664 (C.A.D.C., 1996).

So, what I don’t understand is how conduct that Director Comey forcefully described as “extremely negligent”(or words to that effect) would not be included within the ambit of gross negligence.

I also don’t understand how he could state that “No reasonable prosecutor would bring such a case.”  Particularly when he was also at pains to point out that should similar events occur in the future, this should not be taken to mean that there would be no legal consequences.  I would understand if prosecution would be difficult or messy.  I would understand if the law might be unclear because there are few (if any) reported cases in which the gross negligence standard has been construed in this statute.  But I don’t understand a statement that no reasonable prosecutor would take this case forward.

I also don’t understand why the Director of the F.B.I. is even making a recommendation as to whether a prosecution is or is not warranted.  The F.B.I. acted as an investigator.  An investigator finds the witnesses and digs through documents so that a prosecutor (the United States Attorney General, in this case) can make a decision as to whether the evidence is strong enough to have a reasonable shot at a conviction.  I understand that prosecutors make these kinds of calls every day.  They can be based on the quality of the evidence, the probabilities of success or failure, and many other factors (yes, even those of policy or politics.)  But I don’t understand why the F.B.I. Director called a press conference to provide air cover for a prosecutor in order to insulate that office from having to make a tough call.

Finally, I don’t understand why in an investigation into whether Hillary Clinton broke the law in the handling of classified emails, investigators waited until the investigation was complete before interviewing her.  Recall that the interview took place on Saturday, July 2 and that Director Comey held his press conference on Tuesday, July 5.  Recall also that the intervening days of July 3 and 4 were part of a holiday weekend for Independence day.  In other words, the Director’s presentation (which had clearly been well prepared) was the very first business day following the Clinton interview.

I have interviewed opponents in litigation.  In order to be of use, such an interview usually needs to be (1) under oath and (2) far enough into things so that you know what you need to ask, but not so far along that you lack time to follow up on things you might learn from the interview.  The purpose of getting testimony on the record is to securely nail down what the witness does and does not say. When further investigation turns up evidence that a witness has lied under oath, my case gets a whole lot better than it was before the untruthful testimony.

It is not as though the Federal Government is unaware of this tactic.  I can immediately think of at least three high-profile Federal prosecutions in which a defendant was either imprisoned (Martha Stewart and Scooter Libby) or forced into a guilty plea on other charges (David Petraeus) after lying to the F.B.I.

But in this case, the interview of the subject of the investigation is so late that there was almost surely a working draft of Director Comey’s Tuesday presentation in someone’s computer. What is even more mystifying is the report of Director Comey’s testimony before Congress that Secretary Clinton’s interview was not under oath and was not even recorded.  While it is technically possible to prosecute someone for lying to the F. B. I. without recorded evidence, I cannot imagine trying to actually do it.  “I never said that” would be the very first thing out of the target’s mouth.   Experience tells me that this interview was not part of an investigation, but was a mere formality, done in order to give an investigation the appearance of being thorough and complete.  And I don’t understand why investigators would conduct their investigation this way.

As I said at the beginning, it is possible that if I were a part of this investigation, I might understand those things that I don’t understand now.  Or maybe my state of confusion would be no better.  Otto von Bismarck is reported to have said that laws are like sausages, in that it is better to not see them being made.  Perhaps the enforcement of those laws belongs in the same category.