Prelude: Intent, Gross Negligence, And “Extremely Careless”

falling bowling ball

By now I intended to have published a thorough essay deciding the question of whether conservatives, and their claims that James Comey was part of a Justice Department conspiracy to save Hillary from indictment, were more unethical that Clinton supporters in the news media and elsewhere pronouncing her “exonerated” because she’s not facing trial. Alas, pressing matters have intervened, but no matter: I will present it soon. Meanwhile, however, allow me to clean up a relevant controversy.

Much of the mockery of Comey’s explanation of the FBI’s recommendation, since accepted with a big “Whew!” by Loretta Lynch, arises from his assertion that while Hillary’s handling of classified information was “extremely careless,” it did not arise to the standard of “gross negligence” specified in the relevant statute. Too many pundits and commentators to mention have snorted at this, arguing that there is no practical difference. Comey did not help, when he was asked the question in his Congressional testimony, by explaining the difference as one of enforcement: in a century, he said, no conduct similar to Clinton’s has ever been found to meet the “gross negligent” standard sufficiently to warrant prosecution. Attorney General Lynch, when she was asked the same question by Rep. Jim Sensenbrenner (R-Wis), just repeated how she accepted the recommendations of Comey not to indict Clinton.

There is a difference, however. I don’t know why neither Comey nor Lynch could articulate it, but it exists, and I will now make it clear.

For this analogy I owe thanks to a D.C. lawyer, ethics expert and law professor friend of long-standing with whom I was recently discussing the Clinton matter. He has a gift for  analogies, and said this…

“Intent, is when you drop a bowling ball out of an office building window, aiming so that it will kill somebody by falling on the victim’s  head.”

“Gross negligence is when you toss a bowling ball out of an office building window without looking in order to get rid of it, knowing full well that it is mid-day and very likely to fall on someone’s head.”

“AH HA!” I interrupted. “Then ‘extreme  carelessness’ is when you toss the bowling ball out of an office building window without looking, in order to get rid of it, because it’s 3 AM and you mistakenly/ignorantly/ stupidly  assume nobody will be walking on the sidewalk at that time of night!”

“Exactly!” he said.

More to come…

44 thoughts on “Prelude: Intent, Gross Negligence, And “Extremely Careless”

  1. So the question is, is should have she been prosecuted for “extreme carelessness”? It amazes me that anybody who has served as Secretary of State” would escape being fired from her job and losing her security clearance as her underlings certainly would have.

  2. So you’re saying a jury could not be convinced that a Wellesely valedictorian and Yale Law School grad who’s passed a bar exam or two and been fully briefed on data security protocols had to know enough about computers and computer security (or at least its significance to her employer) to know full well she was putting state secrets at risk by going to the extreme trouble of running communications through her own computer at her house. I don’t see it.

    • No. I’m saying there is a distinction. A legitimate case should be made that Clinton’s conduct should also be covered by “gross negligence,” but there is still a distinction, should the prosecutor choose to make it.

      Clinton was NOT fully briefed on data security protocols—she skipped most of those briefings. The rest—Yale, law degree—are completely irrelevant to tech competence, as multiple outrageous incidents prove every day, across the country.

      • I think the bowling ball analogy is hair splitting beyond my comprehension. I just don’t buy it. I can buy that the decision not to prosecute was political. I think to say so is more accurate and honest. I guess James Comey decided the U.S. public couldn’t stand the truth. Maybe Jack can cast Jack Nickelson as Comey when he directs the forthcoming movie.

        • I meant the foregoing to follow Glenn’s predictably eloquent comment. As to the idea that HRC gets a pass: Jack, let’s say you were named USAG in 2008. Regardless of what briefings you attended or didn’t attend, would you have thought conducting official business over a computer system run from you basement rather than the government provided and approved systems would be prudent? No. Would the thought of doing so even have occurred to you? Of course not.

          • Beth’s point (long ago on another thread) is still valid. An incredible number of officials, lawyers and otherwise smart people are astoundingly behind and ignorant regarding basic technology. It all happened very fast. All reports are that Hillary could comprehend a Blackberry, and that was about it. Oh–she also comprehends FOIA, but that’s a law, not technology.

        • It’s not beyond your comprehension. That’s law. Details and nuances matter. You sound like the activists (such as, disgracefully, Cornell West) who say “If a black man is killed, somebody should stand trial for murder.” There’s a reason such distinctions exist.

          • I don’t think likening me to Cornell West is fair. In her testimony the other day, Loretta Lynch had no problem saying she’d only used approved means of computer communications. Let’s face it, how many government employees would go to the extravagant expense of doing what the Clintons did? And speaking of intent, why did she go to such extremes? To have only one device? No. She had three. She didn’t want her communications becoming public record, as the FOIA contemplates.

            Yes, Beth’s analysis carried the day with Mr. Comey. That doesn’t mean it’s persuasive or anyone has to find it particularly plausible.

              • I have to understand the full implications of breaking a law to be guilty of committing the applicable offence? I need to understand the implications of perjury upon the entire legal system to be guilty of perjury? I need to understand the implications of wire fraud upon the world financial system to be guilty of wire fraud? We’re going to have to do a lot of education to keep the judicial system functioning if that’s the case. Don’t do it isn’t sufficient? It’s illegal isn’t sufficient? I just don’t think the HRC situation is special because it involved them there newfangled computater thangs and that there hacking thingamajig. I think any rational human adult would say to themselves, “Jeeze, maybe I ought to be careful about this stuff.”

                • And we are talking about state of mind issues, not really legal issues. Comey’s and Beth’s description of HRC’s state of mind just does not comport with my view of how a person of above average intelligence would choose to behave in this situation.

                • THAT law. She did not INTEND to mishandle confidential information. She didn’t realize that she was mishandling it, nor that she was placing US security at risk. She thought it was all about record keeping, not security. She also did npt understand the degree of risk that what she did involved (unlike Bowling Ball Scenario Two).

                  Law is often only triggered by moral luck. If a major security breach as a result of Hillary’s “extreme carelessness” had been provable, they would have had to indict her. Imagine if there were proof that a named agent was executed because of Hillary.

                  • Or maybe she didn’t give a hoot one way or the other about national security. She only wanted to keep Congress out of her sketchy Clinton Foundation stuff. Therefore, her focus on hiding things resulted in her being grossly negligent in handling classified information?

                    • Now you’re in Hillary is Evil territory, and that’s not rational. She’s not a traitor; she’s not out to harm the country. She greedy, venal, power-hungry, dishonest, corrupt and untrustworthy, but she’s not evil. (Trump isn’t evil either.)

                    • New HRC campaign slogan: “I’m with her. She’s not evil.”

                      Definition of ‘evil:’ profoundly immoral and wicked. A few of the synonyms: corrupt, shady, crooked. I’d say dishonest and untrustworthy are pretty close to shady and crooked.

                      Greed, venality and power hunger are all powerful drivers of (mis)behavior. In my experience, they are the most powerful. Money makes the world go round.

                    • Intent is a required element of any crime by the definition of crime. One will not be found guilty of an act one did not intend. Crime requires mens rea…it does not require a law to specifically say mens rea.

      • Jack Marshall said, “Clinton was NOT fully briefed on data security protocols—she skipped most of those briefings.”

        Then Clinton should have been stripped of her clearance for missing security protocol briefings, PERIOD!

        I had some relevant years of experience on multiple levels with this back in the latter part of the ’90’s: do you know what would happen to most (Clinton appears to be an exception) government personnel that have or are requesting Top Secret security clearance if they skipped security protocol briefings (P.S. in the 90’s they were all mandatory), they would loose or not obtain their Top Secret security clearance until they have attended ALL security protocol briefings. That’s no bull shit; I’ve seen it happen and it nearly destroyed the careers of a few people. The rules for Top Secret are very strict; so much so that if you have a simple typo on your Security Clearance application it will be denied until it is corrected, there is absolutely no room for guess work or errors when it comes to Top Secret clearances.

        Ignorance of security protocols is absolutely no excuse for not following mandated security protocols, if you have the clearance you are EXPECTED to know and to follow ALL mandated protocols – there are no exceptions to this, especially when it comes to Top Secret security protocols.

        • Jack Marshall said, “Clinton was NOT fully briefed on data security protocols—she skipped most of those briefings.”

          This is the basis for my argument that Clinton engaged in gross negligence and not just extreme carelessness. It was absolute gross negligence for Clinton to choose NOT to attend data security briefings – it was her responsibility to attend; that gross negligence in-turn led directly to choices being made that compromised Top Secret security protocols. Compromising Top Secret protocols is either intentional or gross negligence by choice (as in Clinton’s case) or gross negligence from ignorance – extreme carelessness does not come into play because Clinton (like everyone else with Top Secret clearance) is EXPECTED to know and follow ALL Top Secret protocols – it is their responsibility; extreme carelessness is nothing but an excuse and not a very good one when it comes to Top Secret protocols.

          Using I didn’t know or lack of intent as an excuse to down-grade gross negligence by choice to extreme carelessness is, in my humble opinion, is intentionally giving Hillary Clinton undeserved preferential treatment.

          Personally, I think Hillary Clinton should have been STRIPPED of her Top Secret clearance until she attended ALL data security briefings and someone signed off on that attendance; allowing here to maintain her Top Secret clearance without ALL the protocol briefings was either a failure of the system or intentional preferential treatment for Hillary Clinton.

          It is not my position to say that Clinton should be prosecuted for her gross negligence by choice, that’s up to prosecutors based on the law; however, I disagree with James Comey’s use of “extreme carelessness” instead of saying it was “gross negligence by choice”.

          I can tell you with some certainty that if someone in the military was caught doing the same thing Clinton did and openly lie about it, they would very likely have been brought before a general court martial, their career would be over, and they might have end up in Leavenworth. There appears to be a double standard where Hillary Clinton is not held to the same standards as those in the Military with Top Secret clearance.

        • Also, “I didn’t attend that day of briefings, so none of what I would have been told can be used against me” is a staggeringly defense.

          Ignoring the fact that I suspect that since 1992 she had multiple occasions to be told about the handling of classified data.

  3. This basically comports to my understanding of the two terms, although I think the conservative commentariat could be forgiven for not buying it. It is a rather narrow and technical distinction, after all, and the analogy presented, while useful, is slightly strained in this case.

    Having said all that, “technical distinctions” matter in the law. Close calls happen in legal matters every single day, from decision by law enforcement to write a ticket rather than make an arrest, by prosecutors to charge lesser crimes rather than what they think might be appropriate, and by judges deciding difficult cases. I don’t think demanding the strictest possible interpretation of intent is good for the legal system, or for the country. Nor is it good to apply such a standard situationally.

    Some might say we should be stricter in cases of the failure of a person trusted in high positions of government. That’s a fair point, but we have seen law enforcement give our political leadership, particularly those at or near the highest level of leadership more leeway rather than less, and that’s been true for as long as I can remember.

    Conservatives should bear this in mind. If we desire tighter enforcement, leading by example (i.e. when conservatives are in power) is the right way to persuade people. Demanding it when the opposition is in power looks exactly like what it is — partisan grandstanding.

    • At the risk of scooping my own upcoming post, but I’ve seldom seen such hypocrisy as conservatives condemning the refusal of black activists to accept that the decisions not to prosecute police officers in the Eric Garner and Ferguson cases, among others, were not “fixed” because they had already decided the case, then doing exactly the same thing when Hillary wasn’t prosecuted. Incredible.

      • Is that really a good comparison? The conservative commentariat are pointing to the law and saying this like “How does this not apply?!” And basing their allegations on facts patterns that Comey reinforced. BLM just makes things up and runs with them.

  4. “Gross negligence is when you toss a bowling ball out of an office building window without looking in order to get rid of it, knowing full well that it is mid-day and very likely to fall on someone’s head.”

    When the head of the CIA says he would loose all respect for his foreign counterparts if they did not hack her servers, I think that qualifies as should have full well known it was a dangerous idea. Your analogy does not address the question of if she should have known. The better analogy here is that she dropped the ball midday and is now claiming that she didn’t know sidewalks were busier during the day compared to at night.

    So, does your analysis change at all when you set up extreme carelessness as:

    “Then ‘extreme carelessness’ is when you toss the bowling ball out of an office building window without looking, in order to get rid of it, because it’s mid day and you mistakenly/ignorantly/ stupidly assume nobody will be walking on the sidewalk at that time of day!”

    Or is that still gross negligence? It appears from your analagy that the distinction you are drawing is in terms of how dangerous the behavior actually was, and separately if the person engaging in the behavior know it was dangerous. Is this really the distinction that matters, because her behavior was dangerous, or is the important distinction with how dangerous the person engaging in the behavior believed it to be?

    • The CIA director does understand this stuff and its consequences (which is one reason why Petraeus giving classified information to his journalist-girlfriend was worse than what Hillary did).

  5. I would again point out that a) the law doesn’t require intent – it conspicuously lacks it, in fact. If it is not there, but is there for other similar statutes, you must assume it was left out for a reason. b) When asked by member of Congress whether a given act or set of actions would be considered intent by the DoJ, Comey responded with “absolutey.”

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