# Question for the lawyers about the latest FBI scandal **URL:** \ **Category:** Politics & Elections\ **Created:** [November 7, 2016, 12:37pm UTC](https://boards.straightdope.com/t/question-for-the-lawyers-about-the-latest-fbi-scandal/770944 "2016-11-07T12:37:22Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Melbourne](https://avatars.discourse-cdn.com/v4/letter/m/b5e925/32.png) [@Melbourne](https://boards.straightdope.com/u/Melbourne)\ **Post date:** [November 8, 2016, 1:03am UTC](https://boards.straightdope.com/t/question-for-the-lawyers-about-the-latest-fbi-scandal/770944/21 "2016-11-08T01:03:03Z")
> [@Ravenman](#): > > IANAL, but you do not have the right to pursue Federal criminal charges against someone as a private individual. > > [Question: Is it possible for a private citizen to bring a criminal case against a person or other entity? | Is That Legal?](http://isthatlegal.org/private-prosecution/) > [Private prosecution - Wikipedia](https://en.wikipedia.org/wiki/Private_prosecution#United_States) IANAL, and I’m not sure that answers the question. Given that you can’t compel a prosecuter to prosecute, and you can’t prosecute yourself, can you compel the FBI to turn its findings over to a grand jury? (Is there a grand jury system for federal crimes) (Is prosecution before a grand jury the same as prosecution as defined in the private prosecution case law) (Is there a way to force the FBI to release it’s case notes) ---
**Author:** ![pulykamell](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pulykamell/32/3166_2.png) [@pulykamell](https://boards.straightdope.com/u/pulykamell)\ **Post date:** [November 8, 2016, 1:09am UTC](https://boards.straightdope.com/t/question-for-the-lawyers-about-the-latest-fbi-scandal/770944/22 "2016-11-08T01:09:22Z")
> [@GrandWino](#): > > From what I’ve seen of police in this country lately, I wouldn’t be so sure. Regardless of what you think of police lately or not, I don’t see why anyone would think a police officer would know all the nuances of the legal system and what constitutes a felony or not. Sure, in the stuff they come across in day-to-day work, I would think they have a reasonable idea. But in matters like this? ---
**Author:** ![ganthet](https://avatars.discourse-cdn.com/v4/letter/g/9de0a6/32.png) [@ganthet](https://boards.straightdope.com/u/ganthet)\ **Post date:** [November 8, 2016, 3:01am UTC](https://boards.straightdope.com/t/question-for-the-lawyers-about-the-latest-fbi-scandal/770944/23 "2016-11-08T03:01:37Z")
Federal grand juries are largely governed by the [Federal Rules of Criminal Procedure](https://www.law.cornell.edu/rules/frcrmp). Specifically, [Rule 6](https://www.law.cornell.edu/rules/frcrmp/rule_6) states that grand juries can only be convened by the court and attorneys for the government (which is defined elsewhere in the Rules to basically mean AUSAs, special AUSAs helpfully given the acronym SAUSAs, the AG, or for matters dealing with Guamian law, anyone authorized by the Guamian AG) are the ones who are authorized to present matters to grand juries for consideration. Technically, under the rules, anyone can file a criminal complaint so long as it is sworn either in person or over the phone before a judge or magistrate. The problem is that for the case to proceed much further, an indictment would be needed, and only attorneys for the government (above) can present matters to the grand jury for them to issue an indictment. Also, criminal complaints usually require the individual submitting them to have personal knowledge of the facts that they swear to. Merely reading someone else’s work without having any personal knowledge usually isn’t enough (even though this is usually enough for grand jury testimony, but that’s another issue). Since I assume **Clothy** does not have a Top Secret/SCI clearance and has not seen all of the emails with classified information in question, it is going to be very difficult to describe that classified information to form the basis of a criminal complaint. But what is really sounds like **Clothy** is asking is whether there is any way for him to get access to the files from a FBI investigation through some kind of FOIA-like process. Unfortunately, one of the 9 exemptions to FOIA is exemption 3, which exempts records and documents relating to national defense or relating to accusing a person of a crime. A somewhat recent amendment of FOIA also exempts intelligence agency files from being subject to a FOIA request. There is also a fairly big law enforcement agency exemption in there too, but it wouldn’t cover this situation as much as other cases which actually resulted in a prosecution. The bottomline is that even if all of the FBI investigation files were disclosed, the classified bits would still be redacted and the agent reports discussing and analyzing the classified parts would also be redacted, so you would have no idea what the classified parts actually were or what, if any, specific reasoning and context was applied to them. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [November 8, 2016, 3:07am UTC](https://boards.straightdope.com/t/question-for-the-lawyers-about-the-latest-fbi-scandal/770944/24 "2016-11-08T03:07:28Z")
As others have said, it’s not a felony to mishandle classified files. It’s a felony to mishandle classified files knowingly, intentionally, or in a grossly negligent way. And the FBI has found no evidence this occurred. Of the 113 classified files that were found on Clinton’s computer, 110 of them were not marked as being classified. The other three were marked a classified by having a © added to the text rather than a more normal or prominent indication. Clinton has said she never noticed those three ©’s and was not aware that was a means of marking classified documents if she had seen them. There’s also an issue about when these documents were classified. It appears that many of them were not classified at the time Clinton put them on her computer; they were classified later. And these 113 files were mixed in with tens of thousands of other files. Under these circumstances, I don’t think you could describe this as a knowing or intentional violation of the procedure and therefore it’s not a violation of the law. ---
**Author:** ![VinylTurnip](https://avatars.discourse-cdn.com/v4/letter/v/b2d939/32.png) [@VinylTurnip](https://boards.straightdope.com/u/VinylTurnip)\ **Post date:** [November 8, 2016, 12:07pm UTC](https://boards.straightdope.com/t/question-for-the-lawyers-about-the-latest-fbi-scandal/770944/25 "2016-11-08T12:07:34Z")
> [@El\_Kabong](#): > > Just want to point out that **Clothahump** has mentioned more than once that he’s a former cop. He knows damn well what a felony is, or should. Are you sure? Seems like he’d be calling her a “perp” or a “skell” or something. ---
**Author:** ![What\_the](https://avatars.discourse-cdn.com/v4/letter/w/f4b2a3/32.png) [@What\_the](https://boards.straightdope.com/u/What_the)\ **Post date:** [November 8, 2016, 3:10pm UTC](https://boards.straightdope.com/t/question-for-the-lawyers-about-the-latest-fbi-scandal/770944/26 "2016-11-08T15:10:43Z")
> [@Czarcasm](#): > > “…and I want to keep _on_ doing this until I get the results I want, justice be damned!” Is that a real quote? ---
**Author:** ![Superdude](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/superdude/32/13450_2.png) [@Superdude](https://boards.straightdope.com/u/Superdude)\ **Post date:** [November 8, 2016, 3:13pm UTC](https://boards.straightdope.com/t/question-for-the-lawyers-about-the-latest-fbi-scandal/770944/27 "2016-11-08T15:13:15Z")
Pretty sure it’s more of a representation of most politicians on the Right in general, and **Clothy** specifically. ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [November 8, 2016, 3:22pm UTC](https://boards.straightdope.com/t/question-for-the-lawyers-about-the-latest-fbi-scandal/770944/28 "2016-11-08T15:22:51Z")
> [@Superdude](#): > > Pretty sure it’s more of a representation of most politicians on the Right in general, and **Clothy** specifically. Pretty obviously so, since what he actually said is quoted in that same post. ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [November 8, 2016, 3:33pm UTC](https://boards.straightdope.com/t/question-for-the-lawyers-about-the-latest-fbi-scandal/770944/29 "2016-11-08T15:33:37Z")
> [@Little\_Nemo](#): > > As others have said, it’s not a felony to mishandle classified files. It’s a felony to mishandle classified files knowingly, intentionally, or in a grossly negligent way. And the FBI has found no evidence this occurred. That’s not quite correct. From Comey’s statement: > [@](#): > > Although we 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. > […] > Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case [Statement by FBI Director](https://www.fbi.gov/news/pressrel/press-releases/statement-by-fbi-director-james-b-comey-on-the-investigation-of-secretary-hillary-clinton2019s-use-of-a-personal-e-mail-system) ---
**Author:** ![running\_coach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/running_coach/32/15836_2.png) [@running\_coach](https://boards.straightdope.com/u/running_coach)\ **Post date:** [November 8, 2016, 3:41pm UTC](https://boards.straightdope.com/t/question-for-the-lawyers-about-the-latest-fbi-scandal/770944/30 "2016-11-08T15:41:42Z")
> [@CarnalK](#): > > That’s not quite correct. From Comey’s statement: > > [Statement by FBI Director](https://www.fbi.gov/news/pressrel/press-releases/statement-by-fbi-director-james-b-comey-on-the-investigation-of-secretary-hillary-clinton2019s-use-of-a-personal-e-mail-system) He had more to say. > [@](#): > > Although we 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. > > Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past. > > In looking back at our investigations into mishandling or removal of classified information, **we cannot find a case that would support bringing criminal charges on these facts.** ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [November 8, 2016, 3:52pm UTC](https://boards.straightdope.com/t/question-for-the-lawyers-about-the-latest-fbi-scandal/770944/31 "2016-11-08T15:52:26Z")
Yeah, I know he had more to say but I’m not sure what your addition adds to my point. Little Nemo said they found no evidence and I was pointing out that they did find evidence but it would be unreasonable to file chagres. ---
**Author:** ![What\_the](https://avatars.discourse-cdn.com/v4/letter/w/f4b2a3/32.png) [@What\_the](https://boards.straightdope.com/u/What_the)\ **Post date:** [November 8, 2016, 4:56pm UTC](https://boards.straightdope.com/t/question-for-the-lawyers-about-the-latest-fbi-scandal/770944/32 "2016-11-08T16:56:42Z")
> [@Czarcasm](#): > > Pretty obviously so, since what he actually said is quoted in that same post. Unless you pulled it from somewhere else… I try to stay out of the Elections Threads these days. ---
**Author:** ![cuauhtemoc](https://avatars.discourse-cdn.com/v4/letter/c/ecb155/32.png) [@cuauhtemoc](https://boards.straightdope.com/u/cuauhtemoc)\ **Post date:** [November 8, 2016, 5:52pm UTC](https://boards.straightdope.com/t/question-for-the-lawyers-about-the-latest-fbi-scandal/770944/33 "2016-11-08T17:52:45Z")
If a private citizen could demonstrate that they’ve been harmed by classified information being on Hillary Clinton’s private server, they could sue her personally, right? If so, that should give the OP and his comrades some hope. Then the (ultimately fruitless) search for a victim will keep them occupied for the next four to eight years. But considering the enormous, staggering, apocalyptic importance of this email thing, what choice do they have? ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [November 8, 2016, 9:31pm UTC](https://boards.straightdope.com/t/question-for-the-lawyers-about-the-latest-fbi-scandal/770944/34 "2016-11-08T21:31:45Z")
> [@slash2k](#): > > What felony, exactly, is it to receive classified information via email? (It may be a felony to _solicit_ classified information, or to induce somebody to send it to you, but is it a felony merely to receive it?) Every subscriber to the New York Times is a felon. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [November 8, 2016, 11:05pm UTC](https://boards.straightdope.com/t/question-for-the-lawyers-about-the-latest-fbi-scandal/770944/35 "2016-11-08T23:05:37Z")
> [@CarnalK](#): > > Yeah, I know he had more to say but I’m not sure what your addition adds to my point. Little Nemo said they found no evidence and I was pointing out that they did find evidence but it would be unreasonable to file chagres. Comey’s statement seems confused. As I posted, any mishandling had to have been intentional in order to violate the law. In your quote, Comey said “Although\* we 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.” That seems pretty clear; Comey says he did not find any evidence of intent. But then he went on to say “Although there is evidence of potential violations of the statutes regarding the handling of classified information”. I don’t understand why he would say this right after saying the FBI did not find any such evidence. Unless he’s arguing that extreme carelessness is a criminal act, which as far as I can tell, it isn’t. ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [November 8, 2016, 11:24pm UTC](https://boards.straightdope.com/t/question-for-the-lawyers-about-the-latest-fbi-scandal/770944/36 "2016-11-08T23:24:35Z")
> [@Little\_Nemo](#): > > Comey’s statement seems confused. > > As I posted, any mishandling had to have been intentional in order to violate the law. No, you didn’t post that. Scroll up and you’ll see that you said gross negligence met the requirement. Comey said he found the evidence of extreme carelessness which is a pretty damn close synonym. He also said they found “evidence of potential violations of the statutes” but they have never prosecuted for that before so he can’t recommend starting now. His statement wasn’t confused, you are. ---
**Author:** ![chorpler](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chorpler/32/2888_2.png) [@chorpler](https://boards.straightdope.com/u/chorpler)\ **Post date:** [November 9, 2016, 12:50am UTC](https://boards.straightdope.com/t/question-for-the-lawyers-about-the-latest-fbi-scandal/770944/37 "2016-11-09T00:50:45Z")
The public doesn’t actually have access to any of these e-mails, right? Were they actually hacked/stolen that we know of? If they had been stolen, is there any reason Wikileaks or Russia would not have released them already? ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [November 9, 2016, 2:08am UTC](https://boards.straightdope.com/t/question-for-the-lawyers-about-the-latest-fbi-scandal/770944/38 "2016-11-09T02:08:07Z")
> [@chorpler](#): > > The public doesn’t actually have access to any of these e-mails, right? Were they actually hacked/stolen that we know of? If they had been stolen, is there any reason Wikileaks or Russia would not have released them already? No, they’ve released a series of massive email dumps. They are public records and there was ongoing FOIA requests in addition to the investigation. [http://mobile.nytimes.com/2016/10/08/us/politics/hillary-clinton-bill-clinton-emails.html](http://mobile.nytimes.com/2016/10/08/us/politics/hillary-clinton-bill-clinton-emails.html) I am jealous that you managed to miss that. Lol. ---
**Author:** ![Melbourne](https://avatars.discourse-cdn.com/v4/letter/m/b5e925/32.png) [@Melbourne](https://boards.straightdope.com/u/Melbourne)\ **Post date:** [January 28, 2017, 11:45pm UTC](https://boards.straightdope.com/t/question-for-the-lawyers-about-the-latest-fbi-scandal/770944/39 "2017-01-28T23:45:19Z")
> [@ganthet](#): > > […] > But what is really sounds like **Clothy** is asking is whether there is any way for him to get access to the files from a FBI investigation through some kind of FOIA-like process. Unfortunately, one of the 9 exemptions to FOIA is exemption 3, which exempts records and documents relating to national defense or relating to accusing a person of a crime. A somewhat recent amendment of FOIA also exempts intelligence agency files from being subject to a FOIA request. There is also a fairly big law enforcement agency exemption in there too, but it wouldn’t cover this situation as much as other cases which actually resulted in a prosecution. > […] I see that “in response to a FOI request”, the FBI have “released heavily redacted documents related to its Gamergate investigation”. Perhaps the [redacted] Clinton case notes are going to appear on the FBI website too? ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [January 29, 2017, 6:00am UTC](https://boards.straightdope.com/t/question-for-the-lawyers-about-the-latest-fbi-scandal/770944/40 "2017-01-29T06:00:14Z")
> [@Melbourne](#): > > …the FBI have “released heavily redacted documents related to its Gamergate investigation”… Was that when Leeroy Jenkins went into the Witless Protection Program? [Previous page](https://boards.straightdope.com/t/question-for-the-lawyers-about-the-latest-fbi-scandal/770944.md?page=1)