By Jacob Sullum
For almost a year, Donald Trump has been complaining that FBI Director James Comey gave Hillary Clinton “a free pass for many bad deeds,” as the president recently put it on Twitter. Trump thinks his opponent in last year’s presidential election should have been prosecuted for her loose email practices as secretary of state, even if she did not deliberately expose classified information.
The president might want to reconsider that hardline attitude. The reason Comey cited for not recommending charges against Clinton — a lack of criminal intent — could prove crucial in rebutting the allegation that Trump obstructed justice by trying to impede the FBI’s investigation of ties between his associates and the Russian government.
When Comey announced the results of the Clinton investigation last July, he criticized her “extremely careless” handling of “very sensitive, highly classified information,” saying she “should have known” the unsecured private email system she used “was no place” to discuss such matters. That description sounded like grounds for charging Clinton under 18 USC 793, which makes it a felony to “mishandle classified information either intentionally or in a grossly negligent way.”
But Comey argued that “no reasonable prosecutor” would pursue a case against Clinton based on gross negligence. He said he was aware of just one case where the government had used that standard in the century since the law was passed, which suggests federal prosecutors “have grave concerns about whether it’s appropriate.”
While prosecuting Clinton might have been legally feasible, Comey told a congressional committee, it would have been unjust. “In our system of law, there’s a thing called mens rea,” he said, referring to the state of mind required for a conviction. “We don’t want to put people in jail unless we prove that they knew they were doing something they shouldn’t do.”
That brings us back to Trump, who has done (or allegedly done) several things that could be viewed as attempts to undermine the FBI’s investigation of Russian meddling in last year’s presidential election, including the hacking of embarrassing Clinton-related emails. The FBI’s investigation, Comey confirmed during congressional testimony in March, encompasses possible collusion between Russia and the Trump campaign.
After Comey said that, The Washington Post reported this week, Trump asked Daniel Coats, director of national intelligence, and Michael Rogers, director of the National Security Agency, to publicly say there was no evidence of such collusion. Both declined, deeming the request improper.
The previous month, according to a Comey memo described by The New York Times, Trump interceded with the FBI director on behalf of former National Security Adviser Michael Flynn, one of the associates whose ties to Russia are of interest to the bureau. “I hope you can see your way clear to letting this go, to letting Flynn go,” Trump reportedly told Comey. “He is a good guy. I hope you can let this go.”
A few months after that alleged encounter, Trump fired Comey. Two days later, Trump admitted that the Russia probe, which he had denounced as a “taxpayer-funded charade” on Twitter the day before he gave Comey the boot, was on his mind when he made the decision.
Some Democrats are already calling for Trump’s impeachment, arguing that his response to the FBI investigation amounts to obstruction of justice. But that crime requires proof of intent, and it is not at all clear that Trump knew he was doing something he shouldn’t do — the standard that Comey applied to Clinton.
If Trump was acting “corruptly,” as the statute that seems most relevant requires, why would he approach three officials who were likely to make note of his requests? Why would he publicly condemn the Russia investigation before and after firing Comey?
These do not seem like the actions of a man who is conscious of his own guilt. They seem like the actions of a man who is only beginning to figure out how a president is supposed to behave.
Jacob Sullum is a senior editor at Reason magazine. Follow him on Twitter: @jacobsullum.