Why might Title 18 Section 793 be unconstitutional?
<p>During the House hearing today (July 7, 2016) Director Comey implied that section 793 of Title 18 might be unconstitutional as to applying the "gross negligence" standard to Hillary Clinton.  What is the law that supports this reasoning as to unconstitutionality?</p>

<p>We can only guess at what argument he has in mind, but one possible argument is that the standard is unconstitutionally vague, similar to the  argument by McDonnell in the recent <em>McDonnell v US</em> (admittedly about a different statute).</p>

<p>The vagueness argument was developed in several of the briefs: <a href="http://www.scotusblog.com/case-files/cases/mcdonnell-v-united-states/">http://www.scotusblog.com/case-files/cases/mcdonnell-v-united-states/</a></p>

<p>The unconstitutional vagueness argument has also been made specifically about 18 USC 793 (e). <em>US v Hitselberger</em> 1:12-cr-00231-RC D.D.C. (2014). The defendant made a <a href="http://fas.org/sgp/jud/hitsel/030113-vague.pdf">motion to dismiss</a> based on constitutional vagueness, but this motion was denied.</p>

<p>Private Manning raised the same defence, also unsuccessfully: <a href="http://fas.org/sgp/jud/manning/051012-vague.pdf">http://fas.org/sgp/jud/manning/051012-vague.pdf</a></p>

<p><a href="http://thinkprogress.org/justice/2016/07/05/3795414/hillary-clinton-isnt-getting-indicted-heres/" rel="nofollow">This</a> suggests that the problem is the lack of a proper <em>mens rea</em> component to the crime ("the act is not culpable unless the mind is guilty"). The law doesn't specifically isolate <a href="http://blogs.wsj.com/law/2016/07/05/the-clinton-email-probe-and-the-question-of-gross-negligence/" rel="nofollow">intentional mishandling</a> as being against the law. A strict liability crime has to have a very clearly defined prohibited act, such as driving drunk or having sex with a minor. "Knowingly" or such <em>mens rea</em> expressions are missing from <a href="https://www.law.cornell.edu/uscode/text/18/793" rel="nofollow">18 USC 793(f)(1)</a>:</p>

<blockquote>
  <p>...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</p>
</blockquote>

<p>Several very significant aspects of this:  Firstly, at no time is it ever alleged that the material was misappropriated with the intent to do harm to the US; and second, the single most valid and appropriate receiver of such materials is the Secretary Of State herself...and finally, there is only the most abstract application of "willful negligence" in this circumstance, where there was only the hypothetical possibility, instead of an actual concrete occurrence (for example, forgetfully leaving folders of classified material in a commercial airport lobby, or something like that.) </p>

united-states constitutional-law