I haven’t seen James Comey’s testimony before Congress this morning. However, Andrew McCarthy reports that Comey said the statute criminalizing gross negligence in mishandling classified information is invalid because it does not require proof of intent to improperly transmit classified information to places it is not supposed to be or to people not authorized to have it. According to McCarthy:
The director claims that the statute has only been used once since its enactment in 1917, and therefore its invocation as written in Mrs. Clinton’s case would be suspect. He implies that the only way to save the statute is for the Justice Department to do what prosecutors routinely tell judges that they are not permitted to do: rewrite the statute – in this instance, to add a higher mens rea proof requirement.
McCarthy finds this testimony baffling, and so do I. There are plenty of statutes that criminalize conduct that isn’t intended to cause harm or be wrongful. Criminal sentencing reform foundered this year in part because conservatives wanted to do away with many of the federal criminal statutes that don’t include a mens rea requirement, and liberals balked.
McCarthy points out that all or virtually all states criminalize the negligent causing of death. But the federal code also criminalizes a host of other actions in which negligence, not intent, is the driver. There are thought to be nearly 5,000 such statutes.
Comey’s testimony is also baffling because I doubt that it’s the FBI director’s job to “save” criminal statutes by reading out legally problematic provisions. Courts sometimes engage in this sort of interpretative re-writing. If it’s going to be done by the Justice Department, the Attorney General should do the re-writing.
As noted, I didn’t see or hear this testimony by Comey, and I may be missing something. If so, I will try to update my discussion.