The FBI recommends not to indict Hillary Clinton for email misconduct
Russell Brandom, The Verge, July 5, 2016
The Federal Bureau of Investigation has completed its investigation into Hillary Clinton’s use of a personal email server and is recommending that the Department of Justice not indict Clinton, FBI Director James Comey said in a press conference today. The recommendation is not binding, and the ultimate decision will be made by the Department of Justice. Still, the recommendation will likely clear longstanding questions that have dogged Clinton’s presidential campaign for over a year.
The recommendation is the result of a painstaking investigation by the bureau, which uncovered a number of new details. The investigation determined that 110 emails in 52 email chains contained classified information, including 8 chains containing information that was marked as top secret at the time, Director Comey said. Secretary Clinton used several different email servers and numerous mobile devices, and many of those servers were decommissioned and otherwise altered as they were replaced. “None of these emails should have been on any kind of unclassified system,” Comey said in the announcement. “Even if information is not marked classified in an email, participants who know that the subject matter is classified are still obligated to protect it.”
Despite the significant evidence and serious nature of the misconduct, the FBI ultimately decided that a prosecution would not be appropriate. “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,” Comey said.
“None of these emails should have been on any kind of unclassified system.”
“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,” Comey continued. “All the cases prosecuted involved some combination of clearly intentional and willful mishandling of classified information, or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct, or indications of disloyalty to the United States, or efforts to obstruct justice. We do not see those things here.”
Comey also insisted that the decision had been made in an entirely impartial manner, uninfluenced by the larger political pressures of a presidential campaign. “No outside influence of any kind was brought to bear,” he said. “Only facts matter, and the FBI found them here in an entirely apolitical and professional way.”
Clinton has drawn significant criticism for conducting state department business from a privately managed email server. The practice was first revealed as part of the House Intelligence Committee’s investigation into the Benghazi attacks. Because the server was privately run, it wasn’t subject to requests under public records laws, a major violation of government transparency rules. As a result, many of Clinton’s emails were inaccessible to both the public and the House committee.
Hosting official emails on a private server also raised serious security concerns. Clinton’s private account was unclassified, and did not have the benefit of any of the government’s significant IT and security resources, making it a tempting target for foreign agents looking for insight into US diplomacy. Nonetheless, an inspector general review found that Clinton sent classified information through the private system a number of times. The State Department’s non-classified email system was infiltrated by digital attackers during the same period, an attack many researchers have linked to Russia.
The FBI investigation found no direct evidence that Clinton’s server was compromised, but given the sophistication of many of the actors that would target Clinton, Comey said “we suspect we would be unlikely to see such evidence.” As a result, the bureau believes it’s entirely possible that Clinton’s server was infiltrated by hostile actors.
Clinton has since released the bulk of the emails sent from the private server, although watchdog groups found 160 emails missing from the public release. The State Department Inspector General found Clinton’s practice to be a clear violation of both departmental and federal email policies. Clinton herself has admitted the practice was a mistake. “If I could go back, I would do it differently,” she told ABC News in May. “I know people have concerns about this.”
But after a thorough investigation, the FBI decided that misconduct wasn’t enough to justify a criminal charge. The section of the criminal code dealing with documents containing classified material says a crime has been committed when a government official “knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location.” Some observers have argued that Clinton’s misconduct was not knowing, although many of the facts found by the FBI’s investigation complicate that argument.