Comey: DOJ ‘Worried’ Law Criminalizing Gross Negligence in Handling Classified Material Is ‘Invalid’ and Unconstitutional

By Melanie Arter | July 7, 2016 | 2:03pm EDT
FBI Director James Comey (AP Photo)

( – FBI Director James Comey told the House Oversight and Government Reform Committee Thursday that he thinks the Justice Department is worried that the 1917 law criminalizing gross negligence in handling classified material is “invalid” and “would be challenged on constitutional grounds, which is why they’ve used it extraordinarily sparingly in the decades.”

During a hearing on the FBI’s investigation into former Secretary of State Hillary Clinton’s use of a private email server, Comey said Clinton was “extremely careless” and “negligent” and she “should have known not to send classified information” on her private email.

“Is it your statement then before this committee that Secretary Clinton should have known not to send classified material and yet she did?” Rep. Tim Walberg (R-Mich.) asked.

“Certainly, she should have known not to send classified information, and I think—as I said, that’s the definition of negligent. I think she was extremely careless. I think she was negligent. That I could establish. What we can’t establish is that she acted with the necessary criminal intent,” Comey said.

“Do you believe that since the Department of Justice hasn’t used the statute Congress passed, it’s invalid?” Walberg asked.

“No, I think they’re worried that it’s invalid, that it would be challenged on constitutional grounds, which is why they’ve used it extraordinarily sparingly in the decades,” Comey said. In fact, the statute was only used once – in an espionage case, he said.

Walberg noted that Comey found 110 emails on Clinton’s private server that were classified at the time they were sent or received.

“Yet Secretary Clinton has insisted for over a year publicly that she never sent or received any classified emails. The question I have from that, would it be difficult for any cabinet-level official … let alone one who is a former White House residence or U.S. senator to determine if information is classified?” Walberg asked.

“Would it be difficult?” Comey asked. “That’s hard to answer in the abstract. We’re trying to find the context in which they’re hearing it or seeing it. Obviously if it’s marked, which is why we require markings, it’s easy. It’s just too hard to answer, because there’s so many other situations you might encounter it.”

“But with the training that we receive and certainly a secretary of State would receive or someone who lives in the White House, that goes a little above and beyond just the common sense individual out there trying to determine, knowing that classified information will be brought, and to remove to an unauthorized site might have caused a bit of pause there, shouldn’t it?” Walberg asked.

“Yeah, and if you’re a government official, you should be attentive to it, because you know that the matters you deal with could involve sensitive information, so sure,” Comey responded.

“So Secretary Clinton’s revised statement that she never knowingly sent or received any classified information is probably also untrue?” Walberg asked.

Comey said he did not want to “comment on people’s public statements.”

“We did not find evidence sufficient to establish that she knew she was sending classified information beyond a reasonable doubt to meet that the intense standard. Like I said, I understand why people are confused by the whole discussion – I get that – but you know what would be a double standard? If she were prosecuted for gross negligence,” Comey said.

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