My superfluous and uncharitable reaction to the FBI recommendation against prosecuting Hillary Clinton:
How can “intent” ever be a standard determining whether to prosecute someone for gross negligence?
I am not a lawyer, but I think it is almost impossible for gross negligence to be considered intentional. If you include a standard of “intent,” then gross negligence is no longer a crime subject to prosecution. I’m not saying that’s a bad thing. Just weird.
Commenters: Please avoid sarcasm or generic bashing of Hillary or the FBI director or the system. Try to stick to the narrow point. How best can one reconcile a law against gross negligence with a prosecution standard that requires intent to break such a law?
I find this whole thing shameful but this is a good analysis from a lawyer: https://www.lawfareblog.com/jim-comeys-statement-clinton-emails-quick-and-dirty-analysis
Interesting analysis. It does, to a degree, to repair my assessment of Director Comey. Perhaps the most trenchant observation was this: “People simply don’t get indicted for accidental, non-malicious mishandling of classified material.”
From what I gather (between the linked article and the Director’s own statements) when it comes to mishandling of classified material, only intentional mishandling is prosecuted. Negligence is still punished, but through administrative processes (firing, revoking of classified access, etc.).
I nonetheless disagree with this decision, for the following reasons:
– The negligence is distinctly more severe than what would typically result in a firing or other administrative penalty.
– It is reasonable to delegate to administrative processes and avoid a messy, expensive trial when those administrative processes suffice at correcting/redressing the wrong done. However, no such processes apply to Mrs. Clinton and as such it is the Justice Department’s job to hold her accountable.
What did Hillary do that was “accidental”? It seems pretty obvious that she intentionally mishandled the information. The server was not set up by accident. What was unintentional was any harm to US interests that may have resulted. But intent to harm the country is not an element of the offense.
It is a gray area. Again, she was being very careful with the information for nefarious purposes, but not intentionally to put the information at a national security risk. There was no known motive to use the info as is the case in other prosecutions. And because Federal and State Department security is so piss-poor, it is not obvious she put it at considerably greater risk.
It turns out her psychopathic paranoia and dishonesty may have saved her. None of this is good, it just adds up to luckily her out of a prosecution.
I disagree. It is confusingly drafted, but 18 USC 793(f)(1) penalizes a person entrusted with national defense information who, “through gross negligence permits the same to be removed from its proper place of custody OR [disjunctive] delivered to anyone in violation of his trust, OR [disjunctive] to be lost, stolen, abstracted, or destroyed.” Thus a person violates the statute simply by permitting the information, through gross negligence, “to be removed from its proper place of custody,” even if it does not end up in the wrong hands or lost, destroyed, etc. The statute is prophylactic in nature – it bans conduct that could endanger the national defense, even if the actor has no intent to endanger the national defense.
Sending emails with classified information through an unofficial computer network, it seems to me, is a way of “remov[ing] [the information] from its proper place of custody,” namely, the official State Department computer system. In fact, Hillary not only permitted the documents in question to be removed from its proper place of custody, she intentionally removed them from their proper place of custody. Moreover, she apparently intentionally destroyed thousands of emails that belonged in the official system. There is clearly more than enough to indict her. I would settle for her withdrawing her unpleasant, pant-suited self from the presidential election.
Also relevant is 18 USC 1924, which criminalizes intentional unauthorized removal and retention of documents containing classified information at an unauthorized location. This statute requires proof that the conduct was intentional, but, again, Hillary set up this unauthorized system quite intentionally.
I’m not a lawyer either, so I’m not sure how valid this is; but might “intent to commit gross negligence” require specific knowledge that some precautionary measure was indicated, combined with failure to take that measure?
Two weeks ago, I put my Tesla on autopilot and then got engrossed in a book, firmly believing that my car was too smart to mow down a file of third-graders on a foggy day at a poorly marked crosswalk. I may have been grossly negligent, but not intentionally so; I just had an exaggerated idea of my car’s intelligence. However, if I did the same thing today, and if it could be shown that I was aware of the recent failure of an autopiloted Tesla to avert a collision, then intent might be present: I knew that I should be paying attention to the road, but chose to take the risk.
Yeah, interpret that as the “gross” part. Just negligence is being careless. Gross negligence is knowing the precautions and not taking them. I think Arnold’s point is still right, but mitigated. This is exactly why intent isn’t truly required in such laws where positive care is required and why it is not mentioned in the statute.
But the lack of intent was a mitigating factor in the discretionary prosecution. Although that is the FBI director’s job, but was necesstated by Lynch corrupting herself on the tarmac.
I think it’s pretty clear that intent is not the standard that is generally applied. It is the standard that was applied to this case, because some standard had to be applied that allowed the desired conclusion to be reached.
If there was a reasoned and even-handed justification for the decision then this part of the Director’s public statement would not have been necessary:
“To be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences. To the contrary, those individuals are often subject to security or administrative sanctions. But that is not what we are deciding now.”
A charitable interpretation of that statement, in its full context, is that Comey was referring to the professional/administrative sanctions to which an employee would be subject. However, since Hillary is conveniently no longer in the employ of the U.S. Government, she cannot be subjected to those sanctions.
In the couple paragraphs prior, Comey refers to “potential violations of the statutes regarding the handling of classified information”
And the paragraph after is:
“As a result, although the Department of Justice makes final decisions on matters like this, we are expressing to Justice our view that no charges are appropriate in this case.”
If anything, “But that is not what we are deciding now” refers to the prof/admin sanctions…directing the full force of “this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences” on the lack of criminal charges.
But now we’re arguing the color of lipstick on the pig.
I stand by the interpretation that the original paragraph I cited is bureaucratese for “Hilary can get away with this but don’t think you can.”
Right. But, someone with access to her private server still stripped classified documents of their headers and caveats in order to scan them to send them over the low side to send them to uncleared individuals. That can’t be negligent and meets the intent standard. The trouble is fingering the malefactor and determining whether there was a knowing and conscious conspiracy or who gave direction and authorization for such actions (like getting a small time dealer to flip, turn state’s evidence, and rat out the drug lord.)
The FBI and DoJ could have gone down that road, but elected not to. Who knows why …
I believe that Comey said he decided not to recommend prosecution because Hillary had no intent to “harm the United States” – not because she had no intent to commit the acts forbidden by the statute (she clearly did have the latter intention, although only gross negligence is required). As Andrew McCarthy has pointed out, this is a complete rewriting of the statute – intent to harm the United States simply is not an element of the offense. It is as if a prosecutor declined to prosecute a drunk driver for DUI because the drunk driver did not intend to harm anyone.
I see no reason to rationalize, or to be charitable about, this corruption of the concept of “prosecutorial discretion.”
Fortunately for Hillary, of course, her opponent in the presidential election is just as corrupt as she is, and is not even running a serious campaign.
I think Comey was saying that negligence is not prosecuted because it is usually punished by other means (firing, etc.). Of course, Comey ‘neglected’ to address both that this offense is (I suspect) far more egregious than typical, and that such “other means” currently do not apply to Mrs. Clinton.
Hillary’s mishandling was intentional, not negligent- she intentionally and deliberately put the information on her private server. What was not intentional was any resulting harm to the US – to be charitable to Hillary.
Comey’s claim that similar cases of “negligence” are not prosecuted has been refuted with examples elsewhere. One could argue that those prosecuted mishandled information intentionally (taking cell phone photos on a sub, putting classified info on a private lap top) , but, if this conduct was intentional, so was Hillary’s. I think Comey is misusing the intentional/negligent distinction.
Perhaps one could reach “intent” in a gross negligence case by analogy with the “actual malice” concept from slander and libel law, where finding liability for defamation of a public figure requires a showing that the harmful, untrue statement was made either 1) knowing it to be untrue, or 2) with “reckless disregard” to its truth or falsehood.
If we attempt to map “actual malice” to “criminal intent” in a case concerning gross negligence in structural engineering, #1 would map to things like designing a bridge you know will probably collapse the first time a heavy truck drives over it, while #2 would map to designing a bridge without performing load calculations or performing them so perfunctorily that a prosecutor can convince a jury that you clearly didn’t care whether the bridge collapsed or not. Simple sloppiness, such as making a mistake in the load calculations and forgetting to double-check it, would probably not meet the standard for intent.
Harder still is to differentiate the taking of government documents from *government* possession and security from the charges and admission (plea) of Davis Petreaus.
Read what he was charged with and admitted to, comp-ared to the facts of what she did.
Furthermore, the documents in his case were his original field notes -hers were not.
In cases of mishandling of classified material, intent is never a consideration. I have had a clearance over decades, and what we know is that negligence is a crime, pure and simple. I don’t know how the director decided to use this standard, particularly since there were multiple emails at the top secret level (and above). The only charitable thing I can come up with is that he weighed the problems of inditing the first female nominee for president from a major party against what they could prove in a court of law. They could prove negligence – not intent.
What I don’t understand is allowing Mrs. Clinton to go Scott-free without an obstruction of justice charge. Emails were deleted after the investigation had begun and a request for the emails was sent.
Again, a charitable observation is that the attorney general was facing pressure he couldn’t ignore.
Well, I hate law and predictably they found the opposite of the truth. She wasn’t extremely careless or lacking intent. She was very methodical in her mishandlings.
Btw, we learned that whatever the SoS does it isn’t that important.
I wonder why they are focusing on her poor national security rather than her over the top security of trying to hide them from FOIAs.
So, if negligence is well-defined, as in “must use government security and turn over all e-mails” one could seek evidence of intent such as when someone warns of it being a problem and being told not to worry about it. I’m going to need some guidance on how to avoid sarcasm here.
It certainly seems like a recipe for nefarious discretion to claim someone has to intend to be careless.
However, if carelessness is more well-defined as specific breeches, such as the reasonable person test (a reasonable person knows leaving a secret document in a hotel room is careless bur may not know a home server is). The irony of course is that no reasonable person would set up a home server in their basement in order to circumvent FOIA.
So, she probably did not intend to be careless in that her motivation to hide documents was not because the documents were classified. It is quite comical the dance they have to do. She did not intend to be careless because she was incredibly intentional in her actions to hide documents, she just didn’t do it to hide US secrets, she did it to hide Clinton secrets. She didn’t intend to expose US secrets because she exposed everything.
Of course, as others state, intent is not the actual legal standard, and I suspect he meant something else, because he is not a prosecutor (another odd point) and I suspect this will be non-binding precedent.
In other words, the FBI director created a,special standard where he defines the negligent mishandling as exposing documents to known risk (the negligence) and hanging his hat on not finding evidence that Clinton knew her server was vulnerable (the intent).
If course, this is not the law. And even if it were I suspect anone nor running for president would at least earn a plea deal from setting up a server, destroying evidence, and lying to investigators.
I lost count of all the lawyers she had with her in her FBI interview. I wonder if we will ever get some truthiness regarding her explanation of what her intent was.
Isn’t this why prosecution for this relatively rare?
That isn’t the reason. Basically all recent security prosecutions have been against whistleblowers. Still not sarcasm, but running out of self-control.
Other than laws that specifically criminalize ‘intent’ to do something illegal – when is intent ever the determining factor?
In this particular case, and to be generous to Comey, I suppose one could claim one couldn’t prove Clinton intended for classified material to end up on her server. However, this is quite a stretch in logic. Would a reasonable person, as Secretary of State, expect to never send or receive classified material on one’s only e-mail account that one had deliberately designed to be run on a private stand-alone server? This is where I think intention was deliberately obscured to reach the result you saw this morning. You can be certain that a GS-11 employee who did what Clinton did would be prosecuted- there would be no word games about where intention lie.
When is gross negligence intended? When it is the means to an end beyond itself. If you want something done without explicitly doing it, but expect this to accomplish it. Have you ever thought about who is ultimately responsible for classification and declassification? At this level, it comes with the job, and whether they think it is best classified, unclassified, or even leaked, is often a policy decision though it may have to be defended. Valerie Plame anyone?
Violations of government record-keeping procedures. The horror! The horror.
Exposing the US government’s sensitive national security information to Russia, China, North Korea and Iran. The horror! The horror!
Well, if you don’t think those countries are enemies of ours (which I gather is a common view among supporters of Hillary and Obama), consider that another country – the most vilified and hated one on earth, and one disliked by most Democrats – was probably another beneficiary of Hillary’s “carelessness” – Israel!
I seem to recall that, during the George W Bush administration, the Left was very angry about what they perceived as the attempts to circumvent FOIA record keeping rules – legally, that is, unlike what Hillary did. But I suppose the Nietszchean Super-pajama-boys of the Left have transformed themselves to an elevated state beyond caring about boring Enlightenment concepts like consistency, the rule of law and government accountability.
The willingness of people to use procedure violations as a blunt instrument against their ideological foes is troubling. Your views and the anti-Bush rants of the recent past are two sides of the same coin.
So the only people who should be prosecuted for mishandling classified information, in a way that endangers national security, are apolitical civil servants and military personnel. High-ranking political officials like Hillary Clinton should be immune. Got it.
Does this reasoning also apply to obstruction of justice (another “procedure violation”)? Maybe Nixon should not have been hounded from office, either.
What’s your angle here? You really don’t get the gravity of this?
Doesn’t get. Doesn’t care. Would be irrelevant to his objectives. Would be counter to his objectives.
Impossible to differentiate on the internet without willing and honest give and take.
Intent is NOT an element of 18 U.S.C. 793(f), the statute in play here. Comey, whether deliberately or inadvertently (and he’s ‘way too smart for inadvertent) implied that failure to find intent was why he chose not to recommend prosecution. But intent has no place in this argument, which was immediately recognized by critics. Read the statute, and see one explanation, here:
http://hotair.com/archives/2016/07/05/rudy-giuliani-by-jim-comeys-own-description-hillary-is-guilty-of-a-federal-crime/
Comey further muddied it all when he implied that since there was no on-point precedent, prosecution in this instance was not warranted. However, the FBI findings should be weighed, not against precedent, but against the provisions of the statute. If she violated the statute, she should be prosecuted.
We may never know what Comey’s strategy was (until his book comes out – they all write books now, don’t they?) or why he listed Hillary’s violations and then excused her on very weak grounds. I had read that many considered him a man of great integrity.
However, he has done terrible, terrible damage to the relationship between the ordinary citizen who must obey the law and regulations under threat of jail and/or fine, and the “elite” cadre that runs the country and fails to do the same, with impunity.
I think I need to re-read Codevilla’s “The Ruling Class,” and refresh my recollection of his conclusion.
http://spectator.org/39326_americas-ruling-class-and-perils-revolution/
Well I’m not a lawyer and I’m no expert in the area of negligence. But perhaps an analogy can be drawn between the situation you are describing and the various charges related to murder. As I understand it, in most states there is a sliding scale starting with Murder 1, then Murder 2, Manslaughter and Involuntary Manslaughter. My crude understanding is that the differences between these various charges are tied to the degree of intent that existed in connection with the crime. So, it does appear that there is a strong president between intent and the severity of certain crimes.
That said, I find this confusing and perhaps unjust. I recall thinking that in connection with some murder prosecutions in California where I live. Murder victims are dead, regardless of what the intent was of the perpetrator. So it seems to me that the concept of intent is not hugely relevant to the question of guilt or appropriate punishment. Separately, there is the fuzziness in establishing and proving intent. But to me that is less relevant.
Glenn Greenwald has a great take on this. Essentially the issue is that, given the standard set recently, Hillary should have been indicted. Given a reasonable standard, she shouldn’t have (and neither should Snowden, Petreaus, etc). The reality is that this is just special pleading for the dominant party’s candidate.
https://theintercept.com/2016/07/05/washington-has-been-obsessed-with-punishing-secrecy-violations-until-hillary-clinton/
Yeah, don’t let any facts get in the way.
http://www.politico.com/story/2016/04/hillary-clinton-prosecution-past-cases-221744
Stupid? Yeah
Harmful? Not to anyone but herself
That article is stupid. No aggravating factor? Yeah, I would like somebody to ask her why under oath and sodium pentathol. The priblem is I suspect her motive is going to be laughably stupid rather than nefarious. We don’t know of the aggravating circumstance because nobody asked.
People who sent her classified info are as guilty as she is? That is stupid.
Sorry. And try answering the question.
The aggravating factor is that she was so intent on hiding her documents that the classified documents got swept into them. Intent to expose them to foreign spies or the act of providing them is never at issue. Even by the tortured standard of intent to be careless she is obviously guilty. You don’t accidentally set up your own home email server. And the server exists. And you don’t accidentally have lawyers comb through your emails, and this emails were filtered. She did it. She intended to do it. The FBI director just told us that he made a special standard.
Her mishandling is very similar to the legal explanations for several prosecutions in the article you link to, some of whom were careless, some if whom were negligent. Please point to where in your article they make the case that Clinton’s is different. She was far more intentional than any of them. I know one other person who sets up email servers. He sets up email servers for a living. Did she intend for her email server to be easily compromised? I don’t think it matters legally. I think she intended for it to not be accessible to journalists and Republicans. I’m not sure why this was not pursued.
I see where they say 1 in 5 cases are pursued, I see nowhere where they explain why this isn’t one of the five.
Obviously you have chosen not to read the statute involved, or even the article.
Intent is fairly well defined.
But it does not seem to matter in terms of this discussion.
I read the whole dumb article. I’ll address intent in a few. Are you prepared to be contrite?
Explain how the three convictions at the bottom are materially different from Clinton.
It’s all there.
Your mind is certainly made up and nothing else matters.
Personally, I don’t HRC one bit. But this is just silly, and down the road when we read all of these e mails (and we will) and find out exactly what they involved we will see it as just another monumental waste of time and effort.
What us all where? Make an actual argument.
No, my mind is not made up. Stop being a [Arnold doesn’t like this kind of fact].
Intent is not intent to commit treason or espionage. There are other laws for that.
Intent here simply means did she intend to put the info at risk that a reasonable person would assume. It doesn’t even mean that she knows she intended to do that, and intent isn’t required 8n any event. She knowingly created an improper storage location and destroyed documents. If she didn’t know it was improper, as head of the State Department that is gross negligence.
https://www.law.cornell.edu/uscode/text/18/793
Several guys plead guilty for simply having the info.
Hillary simply had the info.
You realize that what Comey said means precisely that his determination is that she did break the law, right?
That article is awful. It cherry picks three materially different cases and distinguishes the case of Clinton, without every actually pointing to breaches more similar to Clinton’s that *did not* result in charges.
In what I am sure is just a coincidence, the Navy Times re-upped a piece yesterday about an officer prosecuted for downloading classified documents to his local drive so he could work on the road.
You know, I’m getting the idea that the federal government doesn’t take computer security seriously. The Manning case showed that way too many people have security clearances. The Snowden case showed that even the NSA lets outside contractors run all over their systems. The OPM hack showed they can’t keep security clearance info safe either.
And how many people were fired for all of these examples of gross incompetence? Hillary will be right at home.
That is what her defense means. The only way,she didn’t intend to commit gross negligence is if the government is so lax about security that she could reasonably believe that a,home server was not a relative security breach.
But even that doesn’t exonerate her morally or legally. She is one of the people in charge if protecting state secrets. If State does so bad a job that a government server is deemed equivalent, that is on its head.
I believe the argument is that there is no precedent for prosecuting gross negligence without intent (even though the law allows for it), not that intent is an element of gross negligence.
I don’t make a habit of defending Clinton, but the specific examples of prosecution I keep seeing cited (e.g. Libby, Petraeus) do seem to involve obstruction and/or intent. The FBI report on Clinton seems to absolve her of intent and be silent on obstruction.
Good explanation, however, there are similar cases and also how many of those cases of deferred discretion involved someone whose job was to develop and classify info? When she says she never sent or stored things labeled classified she doesn’t realize that is not only not a defense proof of her negligence. It was her job to classify them.
I agree that this is the most charitable reading. Essentially, to speak somewhat paradoxically, a ‘de jure’ vs. ‘de facto’ distinction: de jure, gross negligence stands on its own, but de facto ‘no reasonable prosecutor’ would bring such a case without the presence of other statutory criteria. I don’t claim to know if this alleged gap between the law as written and actually prosecuted is generally recognized and accepted, irrespective of a particular law’s domain of concern. And as others have observed, the matter of precedent is an interesting one, as there always must be — and thus *can* be — a first time.
I found Comey’s rhetoric striking — as if he wanted to embarrass Clinton systematically, before getting to the punchline.
The prosecutor thing is a bit rich.
One factor I have not seen mentioned, although I don’t think it’s the reason for Comey’s recommendation: a prosecution based on Hillary’s email shenanigans would have been tried in the District of Columbia. Not much doubt about how the trial would have turned out, given DC’s overwhelmingly leftwing jury pool.
There is no particular reason that has to be true. The Federal Rules of Criminal Procedure provide that venue is to be the place where the crime was committed; there are plausible arguments for a variety of courts other than the DDC (although that would be the most probably venue).
What other potential venues would there have been? The Southern District of NY (which includes Westchester County, official home of the Clintons)? Same result. You can be sure that Hillary’s lawyers would have made sure that the case would have been prosecuted in a place where the outcome would be a foregone conclusion. And the overwhelming majority of the acts – certainly by Hillary and her senior henchpersons – must have taken place in DC.
As if there was ever the slightest possibility that Hillary would be prosecuted at all. The whole “investigation” has been a charade. A different recommendation by Comey would have been the end of his career and many others.
Last try: “Intent to Commit Gross Negligence”
Intent: would a reasonable person understand the actions could result in Gross Negligence? It seems Comey is playing with the meaning of gross negligence. He is saying Gross Negligence is not just recklessness without the negative result. He is implying that because they can’t find evidence that the server was hacked that maybe a personal e-mail server is not sufficiently negligent.
An analogy. Every time I hike to a waterfall some 20 year old climbs up to the top and stands at the edge. I’ve never seen one fall, so maybe it’s not that negligent. But they definitely aren’t doing whatever is necessary to stay away from the edge of the water fall. Is being close to the edge enough to be intentional gross negligence? If I’d seen other guys go the same place and fall, then we’d say yes, obviously. And since he is intentionally approaching the edge, then he is guilty of intent to commit gross negligence. So, is it “gross negligence” only if you fall (lose the documents)? Or is it “gross negligence” if you have the documents on a vulnerable server? Intent would indicate knowledge of potential vulnerabilities.
Therefore, Comey seems to be implying that since he isn’t sure there was gross negligence (because they didn’t find any proof of hacking), then although she clearly intentionally set up the server, it’s not clear that she knew she was cutting corners. Again, this logic is also partly based on how ad hoc and poorly done the standard operating procedure of State Department security is in comparison to a home server.
Wow this is hard. And, what happens when Anonymous shows up with proof that her server was hacked?
The most charitable (to Comey) reading I can come up with is that he thought an actual trial was infeasible/inappropriate and that the appropriate venue under the current set of circumstances was to let the political process play out.
And that the actual ‘rationale’ he provided was the best he could do as a fig leaf.
On a related topic, I’m currently about halfway through “A Skeptics’ Guide to American History” (on Audible) and finding it to be excellent.
I’ve hit the late 1800s and I’m hearing a number of parallels to our current political season. Rough transition to the Industrial Revolution, strong negative reaction to high immigration from lower-skilled workers (and farmers), strong populist sentiment, etc.
Can anyone suggest a good overview of American History in the late 1800s that might offer some insight into what we’re seeing today? I’d like to dig into the period more deeply…
I”m a lawyer, but I haven’t followed the case, so these are general principles without application:
1. Gross negligence can generally be satisfied by an unjustifiable disregard of whether something was or was not safe, legal, or whatever the fundamental standard is. Another standard is the “entire lack of care,” as opposed to a failure to use reasonable care. Those two standard work together on different cases. For example, suppose that you believed you had no duty to ensure that something was safe, and you were justified but wrong in that belief. That would probably be the first test — you did not unjustifiably disregarded whether something was safe. Now suppose that you believed you had a duty, but you undertook absolutely no effort to fulfill it. That’s the second test.
2. Gross negligence is usually a question of general intent — did you intend the conduct in question. Sometimes, a law requires you to have specific intent. The classic case is fraud. You have to intentionally misrepresent something, intending to deceive someone else. The “intentionally” part is general intent, focused on the conduct; “intending to deceive” is specific intent that is in addition to the general intent. I don’t immediately see a specific intent required in this statute, but maybe I am missing it.
3. Beyond the question of whether the prosecutor thought the standard was met, there are good reasons to withhold prosecution in some cases, especially if tat is done consistently. For example, for years the SEC operated a safe-harbor system in which it would not prosecute if you asked ahead of time and acted in accordance with its private response — even if your conduct turned out to be flat illegal. If the government has been consistent in requiring additional factors before prosecuting, then it ought to apply those same factors here.
Why would we want properly worded security and espionage laws?
Damn. Gross negligence to commit sarcasm. My bad.
Gross negligence is not so clear a standard as many assume.
The following is quoted from Ken Adams (although the context is contracts drafting, it’s still an excellent summary of the general topic) http://www.adamsdrafting.com/negligence-and-gross-negligence/:
Gross negligence is a tort term of art. Like negligence, it’s vague, so necessarily determining whether a party’s conduct has been negligent or grossly negligent depends on the circumstances. But beyond that, gross negligence has no settled meaning.
Taking into account the caselaw more generally, gross negligence “is a nebulous term that is defined in a multitude of ways, depending on the legal context and the jurisdiction.” 57A Am. Jur. 2d Negligence § 227 (2012). Consistent with the distinction between the Sommer and City of Santa Barbara definitions, some jurisdictions distinguish between gross negligence and willful, wanton, or reckless conduct, whereas other jurisdictions treat those terms as being the same or substantially the same. See 57A Am. Jur. 2d Negligence § 231, § 232.
* * *
Taking into account the caselaw more generally, gross negligence “is a nebulous term that is defined in a multitude of ways, depending on the legal context and the jurisdiction.” 57A Am. Jur. 2d Negligence § 227 (2012). Consistent with the distinction between the Sommer and City of Santa Barbara definitions, some jurisdictions distinguish between gross negligence and willful, wanton, or reckless conduct, whereas other jurisdictions treat those terms as being the same or substantially the same. See 57A Am. Jur. 2d Negligence § 231, § 232.
“Gross negligence is not so clear a standard as many assume”
It’s even less clear than we thought it was?!?
I’ve lost all contain on the sarcasm.
Commentators above are making this far more complicated than it actually is. For better or worse, modern statutes make many more thing illegal than any reasonable person believes should be illegal. In this particular case, Comey is saying that what Clinton did is (very likely) illegal under the words of the statue, but that prosecutors would not bring the case absent some “plus” factor that is important to the prosecutor (and probably the jury) but is not actually a requirement under the statute.
I am a lawyer; this is not legal advice.