During the House hearing today (July 7, 2016) Director Comey implied that section 793 of Title 18 might be unconstitutional as to applying the "gross negligence" standard to Hillary Clinton. What is the law that supports this reasoning as to unconstitutionality?

  • The families can still sue hillary after she gets the nomination due to her neglegence, and she can't run for office without funding.
    – person
    Commented Jul 7, 2016 at 19:36

4 Answers 4


We can only guess at what argument he has in mind, but one possible argument is that the standard is unconstitutionally vague, similar to the argument by McDonnell in the recent McDonnell v US (admittedly about a different statute).

The vagueness argument was developed in several of the briefs: http://www.scotusblog.com/case-files/cases/mcdonnell-v-united-states/

The unconstitutional vagueness argument has also been made specifically about 18 USC 793 (e). US v Hitselberger 1:12-cr-00231-RC D.D.C. (2014). The defendant made a motion to dismiss based on constitutional vagueness, but this motion was denied.

Private Manning raised the same defence, also unsuccessfully: http://fas.org/sgp/jud/manning/051012-vague.pdf


This suggests that the problem is the lack of a proper mens rea component to the crime ("the act is not culpable unless the mind is guilty"). The law doesn't specifically isolate intentional mishandling as being against the law. A strict liability crime has to have a very clearly defined prohibited act, such as driving drunk or having sex with a minor. "Knowingly" or such mens rea expressions are missing from 18 USC 793(f)(1):

...through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed

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    But gross negligence is mens rea, since it's the mind that's grossly negligent. See paragraph 4 at law.cornell.edu/wex/mens_rea. Also, you mention strict liability crimes, the ongoing existence of which demonstrates that mens rea is not a constitutional requirement.
    – user7208
    Commented Jul 7, 2016 at 23:16
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    Well, I am not supporting these theories, just reporting that those are the theories advanced about this claim. I expect this to either evaporate into the wind (90%) or be developed and clarified over the next week (10%).
    – user6726
    Commented Jul 8, 2016 at 14:21

Several very significant aspects of this: Firstly, at no time is it ever alleged that the material was misappropriated with the intent to do harm to the US; and second, the single most valid and appropriate receiver of such materials is the Secretary Of State herself...and finally, there is only the most abstract application of "willful negligence" in this circumstance, where there was only the hypothetical possibility, instead of an actual concrete occurrence (for example, forgetfully leaving folders of classified material in a commercial airport lobby, or something like that.)

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    Could you make the constitutional argument clearer? I can't tell what it is.
    – user3851
    Commented Jul 7, 2016 at 21:04
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    @Dawn, one of the key statements made by Comey is that this particular statute has been on the books a very long time (c. WW1) and it's been used only rarely, and only for clear cases of actual espionage. Thus, its application in this current circumstance would stretch "equal protection" to the breaking point. That's my take, anyway.
    – dwoz
    Commented Jul 8, 2016 at 1:20
  • If the US is defined as "We The People", and the server was set up with the purpose of evading FOIA requests, (both of which are true,) then there's a strong argument to be made that "the intent to do harm to the US" was exactly the purpose of the whole thing. Commented Jul 8, 2016 at 1:29
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    I see how you might think that, @MasonWheeler, but the statute is about military/defense, not FOIA. Also, it's entirely politically-motivated conjecture that avoiding FOIA was the "purpose."
    – dwoz
    Commented Jul 8, 2016 at 2:42
  • Oh look at @MasonWheeler Wheeler getting schooled. Mason Wheeler is TRWTF.
    – nomen
    Commented Nov 11, 2016 at 16:23

I'm not a lawyer but I did have a security clearance while in the Marine Corps and was subjected to training on handling of classified material ad nauseam. 18 USC 793 (f) only requires that through gross negligence {classified material} be removed from it's proper place of custody (her personal server was not the proper place of custody for classified information), delivered to anyone in violation of its trust (Hillary's lawyers did not have a security clearance but where allowed access to all the emails on her private server).... or destroyed (she deleted emails she claimed were personal to such an extent that the FBI couldn't retrieve them, some of which were later found to be work related). Please tell me what I'm missing here?!?!?

  • One thing missing in your analysis is that private (i.e. not government controlled) servers have been common practice for YEARS in the Secretary of State's office, in fact as long as there has even been email; that the "investigations" commenced long after she left the post, and only after her most recent presidential aspirations were made public; and that it's also quite NECESSARY for her to have a private email server to separate political campaign activities from governmental assets. It's imperative in our legal system that laws not be used as political bludgeons.
    – dwoz
    Commented Nov 11, 2016 at 18:05

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