Last Tuesday, FBI Director James Comey publicly announced that he would not recommend charges in connection with the FBI’s investigation of Secretary Clinton’s private email server and testified two days later before the House oversight committee about the basis for his recommendation. During his public comments, Director Comey repeatedly stated that “no reasonable prosecutor” would recommend charges in this matter due to the lack of evidence of “willfulness.” These comments were a reminder of the critical importance of mens rea (the intent requirement that is an element of every crime) to not just classified information mishandling investigations, but all complex white collar crimes, from securities fraud, to public corruption and bribery, to export control violations.
Following Director Comey’s statements last week, I was asked for my reaction, given my role at DOJ leading the prosecution of former CIA Director David Petraeus for mishandling classified information. My comments, which focused on the difficulty of proving intent, or mens rea, in complex white collar cases are included below:
- “Here’s why James Comey didn’t recommend prosecution for Hillary Clinton,” CBS (July 7, 2016)
- “Criminal charges against Clinton could have set new legal standard,” Politico (July 6, 2016)
- “How FBI chief’s Clinton email ruling was ‘very unusual’,” CBS, CBS This Morning (July 6, 2016)
- “Similarities lacking in Clinton, Petraeus investigations,” The Associated Press (July 6, 2016)
- “Comey got it right: Former DOJ prosecutor,” CNBC (July 5, 2016)
- “FBI: Clinton, Staff ‘Extremely Careless’,” MSNBC, Meet the Press Daily (July 5, 2016)