Hillary Clinton’s Emails and Federal Law (Part Three)

However, section 793 has a lower mental state.  18 USC section 793(f) states: “Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (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, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—  Shall be fined under this title or imprisoned not more than ten years, or both.”   This statute only requires “gross negligence,” and (for what it’s worth) the FBI director pretty much stated that he believed this mental state existed during the conduct at question.  Gross negligence requires an extreme breach of the standard of care that a reasonable person would exercise under the same circumstances.   This would be an easier statute to prosecute than 798 because of the much lower mental state requirement, although prosecuting a Democratic celebrity for a national security technical crime in Washington, DC would be difficult under any circumstances. But, prosecutors regularly use such indictments to attempt to squeeze misdemeanor pleas out of high profile persons.

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