Mens Rea Defense – Good Heart (?) and Empty Head

Extreme Carelessness Versus Gross Negligence

The case of Hilary Clinton offers an interesting fact set for exploring jurisprudential questions about the differences among intentional, reckless, and negligent misconduct. Of course, Clinton’s malfeasance, regardless of the attributed mens rea, has received a good deal of publicity, and ultimately, there should be an exemplary factual record, which can be used to explore the different culpable states of mind.

In her column yesterday, Maureen Dowd captured how many rational United States voters must feel about the irrationality of our national politics, and the Clinton email scandal.[1]  James Comey, Director of the FBI, detailed the facts that would probably require President Obama to fire Hilary Clinton if she were still Secretary of State in his administration.  Instead, the President is endorsing Clinton to be his successor. Of course, Obama could put the nation at ease, however, by revealing that he never allowed Clinton to have access to REALLY confidential information because he just did not trust her. Perhaps that might improve public perception of his judgment while exculpating her.

Dowd was commenting upon Comey’s conclusion that Hillary Clinton’s use of email for State Department confidential and classified communications, over her own, private e-mail server to handle work-related communications was “extremely careless.” See James B. Comey, “Statement by FBI Director on the Investigation of Secretary Hillary Clinton’s Use of a Personal E-Mail System,” FBI Press Office, Washington, D.C. (July 05, 2016). In his press conference, however, Comey announced that the FBI would not recommend criminal charges because in his view Ms. Clinton’s conduct was not proscribed by pertinent statutes. And of course, Obama’s Attorney General, Loretta Lynch, fresh from a tête-à-tête with Ms. Clinton’s husband, who had nominated her to the position of United States Attorney back in 1999, agreed with Comey in a New York minute.

Comey framed his political indictment of extreme carelessness in a way to suggest that although Clinton might not be worthy of a security clearance, she should not be prosecuted:

“Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.”

Comey acknowledged that “there is evidence of potential violations of the statutes regarding the handling of classified information,” but offered his judgment “that no reasonable prosecutor would bring such a case.”[2]

But why is it that no reasonable prosecute would indict? This is where the Clinton scandal raises questions about inferring mental states and becomes jurisprudentially interesting.

Comey was clear that Clinton had put confidential, classified information at risk, by using her email on foreign soil, where sophisticated, “hostile actors” could have hacked her account without her being able to certify otherwise. Cybersecurity experts were less “politic,” and more willing to go beyond “possible” to claim “probable” hacking had taken place. Clinton had no full-time cyber-security professional monitoring her email system.[3]

Comey ended his performance by claiming that only the facts mattered; opinions were irrelevant. “Just the facts, ma’am.” But his judgments about reasonable prosecutors, obstruction, and disloyalty are not facts; they are opinions, and particularly, they are opinions that involve inferences about mental states, mens rea, and motives.

Comey offered precedent, in the form of prior prosecutions, which according to Comey, all involved elements of intentional conduct, including willful mishandling of classified information, indications of disloyalty to the United States, or efforts to obstruct justice. And Comey just did not see those elements in the Hilary Clinton case.

Were the inferences to these putatively missing elements truly unwarranted? Was Comey really looking or was this a case of cognitive bias or willful blindness? After all, Comey was compelled “on the facts,” to acknowledge that there were over 100 Clinton emails with classified information turned over to the State Department, and a few additional emails found with classified information, which were not turned over to State.  Of course no one could say what was in the emails that had been spoliated by Clinton or under her supervision.

Clinton clearly had attempted to obstruct the investigation into her unlawful conduct. She repeatedly lied about her motive for eschewing State Department regulations and protocols. She destroyed evidence.  She lied about the content of the emails and their security status. Clinton’s disloyalty to the country was manifest. She adopted a private, unsecured email system not only for her own convenience, for the needs of her own future political candidacy, and so that she could provide access to confidents not in the government, such as unapproved actors, Sidney Blumenthal and William J. Clinton.

Given that the email server belonged to the Clintons, not the State Department, former President Bill Clinton, could check into his Chappaqua, New York, system to catch up on the latest diplomatic initiatives before he set off to give a six-figure speech to foreign potentates. Bill Clinton claimed he does not send emails, but that does not mean he does not read emails, on which may have been blind copied. How convenient to bcc Bill on emails sent to Barack, to get keep him “in the loop”?

Comey’s suggestion that Clinton did not meet the mens rea requirement of the pertinent criminal statute would not seem to hold up under scrutiny. The provisions of the federal criminal code define punishable conduct for “gathering, transmitting, or losing defense information.” 18 U.S. Code § 793. This provision does require intent or gross negligence, which Comey seemed to suggest were absent or not readily proven in the Clinton case. And yet, Clinton intended to gather and transmit defense information contrary to law.  Actually “losing information” is not a required element, although even there, Clinton lost information that sat on her server when she chose to destroy it rather than maintain it, as was legally required.

As for gross negligence, Comey himself made the case, although he characterized Clinton’s conduct as “extremely careless.” There does not seem to be any meaningful distinction between gross negligence and extreme carelessness. The current Wikipedia entry for gross negligence illustrates the subtle, sometimes evanescent distinctions among “negligence,” “gross negligence,” and “recklessness”:

 “Gross negligence is legally culpable carelessness that shows a conscious and voluntary disregard of the need to use reasonable care, and likely to cause foreseeable grave injury or harm. The difference between “negligence” and “gross negligence” may be subjective since it is a matter of degree. Negligence is the opposite of diligence, or being careful. The standard of ordinary negligence is what conduct deviates from the proverbial “reasonable person.” By analogy, if somebody has been grossly negligent, that means they have fallen so far below the ordinary standard of care that one can expect, to warrant the label of being “gross.” Prosser and Keeton describe gross negligence as being “the want of even slight or scant care”, and note it as having been described as a lack of care that even a careless person would use. They further note that while some jurisdictions equate the culpability of gross negligence with that of recklessness, most simply differentiate it from simple negligence in its degree.[1]

Jurisprudes struggle to define gross negligence and distinguish it from ordinarily negligence and recklessness. Consensus and precise definitions are hard to find, and some of the case law definitions appear vacuous or circular. In many analyses, the grossness of someone’s negligence may be something recognized when encountered, much like Potter Stewart’s obscenities. See Jacobellis v. Ohio, 378 U.S. 184, 197 (1964).

The recent litigation over the 2010 oil spill in the Gulf of Mexico, caused by the oil rig, Deepwater Horizon, illustrates the struggle to define gross negligence:

“Gross negligence is a nebulous term that is defined in a multitude of ways, depending on the legal context and the jurisdiction. However, when the “cluster of ideas” surrounding “gross negligence” is considered, the prevailing notion is that gross negligence differs from ordinary negligence in terms of degree, and both are different in kind from reckless, wanton, and willful misconduct.

[…]

Gross negligence, like ordinary negligence, requires only objective, not subjective, proof. While ordinary negligence is a failure to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstances, gross negligence is an extreme departure from the care required under the circumstances or a failure to exercise even slight care. Thus, the United States contends that gross negligence differs from ordinary negligence only in degree, not in kind.”

In re Oil Spill by Oil Rig Deepwater Horizon in Gulf of Mexico, 2014 WL 4375933 (E.D. La. Sept. 4, 2014).

Some commentators have argued that reckless and careless are synonyms.[4] This argument ignores important distinctions drawn in the criminal law, and in the law of torts. Perhaps the clearest distinction between recklessness and negligence is set out in the Model Penal Code’s definitions of the kinds of culpability.  MPC  § 2.02 (2). Subsection (c) defines “recklessly” as follows:

“A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.”

And Subsection (d) defines “negligently” as follows:

“A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.”

So both recklessness and (criminal) negligence involve “gross” deviations, but recklessness requires a greater subjective awareness, whereas negligence can be shown using an objective, “reasonable person” test.

Given Comey’s recitation of “just the facts,” and adding in his Capitol Hill testimony, it would seem that a rookie prosecutor could indict and convict Ms. Clinton of intentional or grossly negligent mishandling of confidential information, as well as a conspiracy to cover it up.

Of course, there might be good political reasons not to indict Clinton, including that it might cause the election of Donald Trump, but that would require adverting to facts beyond the Clinton case.


[1] Maureen Dowd, “The Clinton Contamination,” New York Times (July 10, 2016).

[2] See Daniel Fisher, “FBI Calls Hillary’s E-Mail Habits ‘Extremely Careless’ But Not Criminal,” Forbes (July 5, 2016).

[3] David E. Sanger, “Hillary Clinton’s Email Was Probably Hacked, Experts Say,” New York Times (July 6, 2016).

[4] See Craig Bannister, “A President Can’t Be RecklessNational Review (July 2016).

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