GROSS NEGLIGENCE VERSUS EXTREME CARELESS

The FBI investigation of Mrs Clinton looked at whether there was evidence classified information was improperly stored or transmitted on her personal system, in violation of a federal statute making it a felony to mishandle classified information either intentionally or in a grossly negligent way, or a second statute making it a misdemeanor to knowingly remove classified information from appropriate systems or storage facilities. Although the FBI did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.

The critical question for the FBI was whether Mrs. Clinton’s  conduct constituted "gross negligence”. The FBI  found that it did not. Instead, the FBI  found that she and the other people in the email chain were "extremely careless." What is the difference?

Gross negligence is a legal term with a specific meaning. It's an objective test. A person acts in a grossly negligent manner if her conduct constitutes a "substantial deviation" from the legal duty to exercise due care when handling classified information compared to the conduct of a reasonable person in the same situation.

"Extremely careless" is a subjective test because it's not based on a comparison to the conduct of a reasonable person. What may appear to be extremely careless conduct to one person may not appear to be extremely careless to another. Depending on the circumstances, extremely careless conduct may or may not constitute gross negligent conduct. The relevant circumstances probably include:

1. The number of people in the email chain who received and transmitted the classified information and whether they were authorized to possess it;
2. The nature of the information transmitted;
3. Whether the information was intercepted by unauthorized third parties ; and
4. How widespread the practice was

The FBI decided against charging Hillary Clinton because her extremely careless behavior did not rise to the level of intentional or grossly negligent behavior.

Regardless the FBI’s findings from its criminal investigation of Hillary Clinton’s secret were a damning and unprecedented indictment of her judgment. The FBI found evidence Clinton broke the law that she placed highly classified national security information at risk and repeatedly lied to the American people about her reckless conduct. None of the FBI findings changes the fact that the FBI continues to investigate the Clinton Foundation for corruption involving her tenure as Secretary of State.