But the law requires that cops and prosecutors show mere “gross negligence,” Mukasey wrote in a Wall Street Journal column, titled “Clinton Makes the FBI’s Least-Wanted List.” Moreover, Comey effectively showed during his prosecution-style press conference that Hillary Clinton’s reckless use of her unprotected home-brew email network meets that “gross negligence” test for federal prosecution, Mukasey argues.
Federal Bureau of Investigation Director James Comey opened and closed his statement to the press Tuesday with expressions of gratitude and pride to be associated with the bureau. His description of FBI agents’ work on the Hillary Clinton email investigation showed why he feels that way. Whether the rest of his statement—explaining why he wasn’t recommending prosecution of Mrs. Clinton—should make the feeling mutual is an open question.
… It is a felony for anyone entrusted with lawful possession of information relating to national defense to permit it, through “gross negligence,” to be removed from its proper place of custody and disclosed. “Gross negligence” rather than purposeful conduct is enough.
Yet Mr. Comey appears to have based his recommendation not to prosecute on the absence of “clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information” ….
[But] as an example of the kind of information at stake, he described seven email chains classified at the Top Secret/Special Access Program level. These were the emails that the government had said earlier are so sensitive that they will never be disclosed publicly. Mr. Comey went further, citing “evidence to support a conclusion that any reasonable person in Secretary Clinton’s position . . . should have known that an unclassified system was no place for that conversation.” To be “extremely careless” in the handling of information that sensitive is synonymous with being grossly negligent.
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