During FBI Director James Comey’s testimony on Thursday there was a lot of discussion about the “gross negligence” standard under the Espionage Act Statute 18 U.S.C. §793(f). As was explained in another column, Director Comey essentially determined that the Department of Justice would not prosecute someone under this statute because of a concern that it may be unconstitutional. This appears to explain why there are so few reported cases that deal with convictions under Section 793(f). However, there is one conviction under Section 793(f) in a military court martial proceeding that is starting to get some media attention over the past few days — United States v. Rickie Roller (1993).
Rather than just going through the Roller case and trying to make comparisons to the Clinton case, let’s answer this question instead: Under FBI Director James Comey’s so-called “Clinton Standard,” would Rickie Roller have been prosecuted?
Here are the facts:
U.S. Marines Sergeant Rickie Roller was responsible for all of the classified material that came into the Intelligence Division at the Marines Headquarters in Washington, D.C. Due to a conflict with his supervisor he requested a transfer and he “hastily packed his gym bag” with materials from his desk on his last day at the Intelligence Division HQ. Several weeks later as Roller was unpacking the gym bag he discovered the classified materials in his gym bag. Fearing he would get into trouble, Roller decided he would destroy the items once he arrived at his new duty station. However, a moving company employee discovered the classified materials before Roller could destroy them and notified authorities. Roller was convicted in a general court martial under Section 793(f), which provides, in part:
(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, …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 …
Shall be fined under this title or imprisoned not more than ten years, or both.
In affirming the conviction, the court specifically addressed Section 793(f), finding, “[I]t is clear that Congress intended to create a hierarchy of offenses against national security, ranging from “classic spying” to merely losing classified materials through gross negligence.” Furthermore, the court stated, “Section 793(f) has an even lower threshold, punishing loss of classified materials through “gross negligence” and punishing failing to promptly report a loss of classified materials.”
In addressing Roller’s conduct, the court stated:
[P]rosecution under section 793(f)(1) is [not] precluded of a person who, being entrusted with an enumerated item or information relating to the national defense, in some way violates the terms of his entrustment: violation of the terms of this kind of entrustment does not terminate the entrustment. The terms of any entrustment of national defense information necessarily include a requirement of due ‘care, use or disposal of it,’… [otherwise] many, if not all, acts of gross negligence that constituted a violation of section 793(f)(1) would terminate the entrustment and preclude prosecution under the section.
Once [Roller] discovered he had inadvertently taken classified information with him, albeit through his own gross negligence, he nevertheless had a continuing duty to safeguard the information until such time as he had an opportunity to return it to the Government’s care. While not authorized to have such material with him outside a secure area, appellant was nevertheless entrusted with its care once he discovered it in his possession…. [Roller’s] negligence in failing to safeguard the material once discovered resulted in its loss since it was shortly discovered and taken away by unauthorized third parties.
Appellant could be and was prosecuted for such loss.
As you can see, the court determined that the act of unknowingly placing the classified material in his gym bag satisfied the “gross negligence” requirement under 793(f). Furthermore, the court found that Roller’s negligence in failing to protect the information once it was taken out of the secured area resulted in its “loss” — even though it was returned to the proper authorities by the moving company employee. They specifically found Roller had a duty to protect the information until he could return it to the government. Therefore, the court held the conviction under 793(f) was appropriate.
So, would the outcome in Roller’s case change under the so-called “Clinton Standard” as articulated by Director Comey at the congressional hearing on Thursday? The answer is most probably yes, Rickie Roller’s conviction would not stand under the “Clinton Standard.” Here is why.
The most fundamental difference in how the two cases were handled begins with the court’s acceptance that Congress’ intent in drafting the Espionage Act was “to create a hierarchy of offenses against national security, ranging from ‘classic spying’ to merely losing classified materials through gross negligence.” Director Comey, however, stated his belief that the U.S. government should not prosecute someone unless they know what they are doing is wrong. Thus, he would have refused to even attempt recommend a prosecution under section 793(f).
A second reason can be found in Director Comey’s stated reluctance to recommend prosecution based on the fact that he could only find one case where the DOJ charged someone under section 793(f) (prosecutions of military personnel are not conducted by DOJ). This same lack of precedent did not deter the military prosecutors in the Roller case. In fact, the appellate court majority even had to overrule a prior holding in order to sustain Roller’s conviction. As the court recognized, under prior precedent they had not interpreted section 793(f) to include a continuing duty to protect classified materials. Without the willingness to overrule their prior interpretation of section 793(f), Roller’s conviction would have likely been reversed.
This is an opinion piece. The views expressed in this article are those of just the author.