WASHINGTON ― Americans have grown accustomed to the idea that some criminal laws target specific populations. Drug possession charges tend to hit low-income black communities harder than other neighborhoods. The sentencing disparity between crack cocaine and powder cocaine just happens to result in long prison terms for black people, while Wall Street snorters receive leniency.
But the legal system’s bias against the poor and people of color is not limited to laws that directly put these populations in the crosshairs. It’s also reflected in the privileged treatment received by the rich and powerful who violate laws targeting the rich and powerful.
This is why FBI Director James Comey’s decision to effectively exonerate Hillary Clinton for allegedly mishandling classified information is so troubling. In a Wednesday press conference and an epic Thursday hearing before Congress, Comey accurately described his choice as consistent with a century of legal precedent. But based on any fair-minded understanding of justice, this precedent is a moral outrage.
Comey’s decision to shrug off prosecution was based on decades of “gross negligence” prosecutions, or more accurately, a lack thereof. Under the 1917 Espionage Act, federal prosecutors have brought only one case against a public official based on gross negligence. Clinton may have repeatedly mishandled classified information, even when she should have known better. That could be the basis for a prosecution based on negligence ― failing to uphold the law without actually trying to break it. Over the past century, authorities have exercised discretion in such cases. Absent criminal intent ― a willful desire to break the law ― prosecutors have overwhelmingly avoided bringing such cases.
So Comey’s point is consistent with the historical record. But here’s the problem: Negligence is a crime of power. The weak, low-ranking (and low-born), however, do not and cannot commit crimes of negligence, by definition. When whistleblowers draw attention to a problem by leaking it to the press, this is not an act of negligence ― it is a deliberate act. The Obama administration has been ruthless with whistleblowers, throwing the book at Chelsea Manning and destroying the career of Thomas Drake. John Kiriakou received a 30 month sentence for leaking details about the CIA’s torture program. There are many other cases.
Gross negligence, by contrast, is a crime that can only be committed by a pattern of bad behavior ― looking the other way, ignoring red flags or demanding impossible results in the face of obvious legal barriers. Low-ranking people can’t do this. They can only follow orders. Managers and directors and secretaries and executives can. When Comey says that the government hasn’t prosecuted people for gross negligence, he’s using technical legal language to elide something much more frightening: In the United States of America, we do not prosecute rich and powerful people for serious crimes.
Comey essentially argued that criminal laws targeting the rich and powerful have not historically been enforced. As a result, they will continue to be ignored.
Even when prosecutors can prove intent, being rich and powerful affords special protection. Decorated General David Petraeus was charged for willfully distributing classified information to his mistress, and then lying to the FBI about it. Comey correctly notes that these are more severe charges than what the FBI could bring against Clinton ― they involved clear intent, not negligence. But Petraeus avoided jail, while the whistleblowers served their time.
Listen to The Huffington Post’s analysis of the Clinton case on the latest episode of the politics podcast “So, That Happened,” embedded below:
Late last year, HuffPost reported on a lobbying push from the Koch Brothers and other right-wing interests to eliminate a wide swath of corporate crimes. Pulitzer Prize-winning reporter Matt Apuzzo followed up on our work for the New York Times (without acknowledging our efforts, a common tactic at the Times). The Kochs and their supporters described their endeavor as “mens rea reform,” but the basic idea was simple. If someone did not intend to violate a law, they should not be prosecuted for doing so.
This would eliminate a tremendous amount of white-collar crime. Even if executives forced their firms into illegal activity through gross negligence, they could not face trial. Prosecutors would have to show that top managers willfully broke the law.
The Obama administration, civil liberties advocates and a host of liberal interest groups rightly raised hell over this effort to simply erase white-collar crime. Conservative proponents of the Koch Brothers’ position retorted: the government doesn’t really prosecute powerful people for negligence or gross negligence anyway.
This was a weak argument for gutting the law. But it was an accurate description of prosecutorial history. Comey’s invocation of the lack of gross negligence prosecutions adds to this evidence.
The Espionage Act, securities fraud and mine safety standards are all different laws. But the basic principle holds: Negligence and gross negligence are laws that apply to the rich and powerful. The fact that prosecutors have not brought such cases over the past century does not exonerate Clinton. It indicts the American criminal justice system.