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The... FBI doesn’t charge people? With anything?
This is really pretty weird. “Gross negligence” is not a freestanding crime, so I assume he’s talking about 18 USC 793(f) which is about negligently permitting removal of documents from a secure location.
It would always be up to DOJ prosecutors to determine whether 793(f) is applicable in a particular case—because, again, FBI doesn’t charge people—and in the Clinton case it pretty obviously wasn’t.
First, because while people improperly discussed classified matters on an insecure channel, it’s not clear anybody removed anything from a secure facility in the process — talking about something is not removing a document.
Second, because even if staffers had done this at some point, nobody as far as I know has ever alleged that this involved removal of documents under Clinton’s custody or control. Staff would have had their own access.
So... of course DOJ wouldn’t charge 793(f) on those facts. This was only ever part of the conversation because people who don’t know anything about the Espionage Act seized on the word “negligent” while ignoring WHAT you have to negligently do to violate the statute.
Page herself apparently pointed this out, which Ratcliffe conveniently forgets so he can insinuate this amounts to something scandalous.
So apparently, DOJ is giving obviously correct legal advice—“the facts you’re describing aren’t the sort of thing that section of the statute would apply to, or that we’d charge under that section”—and Ratcliffe is trying to spin it as a (nonexistent) “order” not to investigate.
Or, possibly more broadly, “DOJ policy is we don’t charge under 793(f) without intent, period, because of concerns about unconstitutional vagueness.”
I suppose I could see someone finding this shady if it were a close call, or advice inconsistent with ordinary DOJ policy. But it’s neither. And it certainly isn’t any sort of “order”.
This is a special case insofar as the AG had committed to accepting FBI’s charging recommendation, but that shouldn’t preclude FBI asking how DOJ normally interprets and applies a particular rarely-used statutory provision. At least not if their answer is clearly correct.
The FBI was supposed to make a recommendation independent of the AG’s control, not independent of any information about what the statute means or when DOJ normally charges under it. Nobody could make a recommendation without knowing those things.
Given that nobody has ever been convicted under 793(f) on “gross negligence” grounds, and the Supreme Court’s ruling in Gorin implies it would be unconstitutionally vague absent intent, my inference from public statements is DOJ has a GENERAL POLICY not to charge without intent.
It would be scandalous if DOJ lied about their policy, or said: “yeah, we charge stuff like this under 793f all the time, but not for Hillary”. But if the advice was “we don’t charge (f) without intent since Gorin” or “that section is about custody of documents”...
... are they supposed to make a recommendation in ignorance of basic facts about DOJ policy? Or what the statutory language means? The whole thing is incredibly silly.
