FBI Director James Comey excoriated Hillary Clinton’s use of private email servers to send and receive messages with extremely sensitive classified information and methodically refuted each of Clinton’s subsequent excuses, but Comey ultimately refused to recommend criminal charges against the presumptive Democratic nominee, leaving many legal experts stunned.
Tuesday morning, Comey stepped before cameras and microphones to announce the conclusion of the FBI investigation into Clinton and her handling of classified information. He said the probe clearly showed scores of emails containing classified information, including many that were marked classified from the start.
“From the group of 30,000 e-mails returned to the State Department, 110 e-mails in 52 e-mail chains have been determined by the owning agency to contain classified information at the time they were sent or received. Eight of those chains contained information that was Top Secret at the time they were sent; 36 chains contained Secret information at the time; and eight contained Confidential information, which is the lowest level of classification,” said Comey.
Comey also revealed that Clinton did in fact delete many emails that were work-related.
“The FBI also discovered several thousand work-related e-mails that were not in the group of 30,000 that were returned by Secretary Clinton to State in 2014,” he said, while noting that only a handful of those were deemed classified.
When it came to the findings, Comey also slammed Clinton and her team for their slipshod handling of national security information.
“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,” said Comey.
But despite all that, Comey said he and the FBI were not recommending criminal prosecution of Clinton.
“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,” said Comey.
That conclusion shocked many legal experts, especially after Comey’s lengthy explanation of Clinton’s conduct.
“I was flabbergasted,” said former Deputy Assistant Attorney General Victoria Toensing. “I heard him use the words ‘extremely careless.’ To any lawyer, that’s grossly negligent. I did not understand how he could get up there and say the words ‘extremely careless’ and not call that gross negligence.”
“If anything, ‘extremely careless” sounds even worse than gross negligence,” said Toensing.
She says the idea that no one is going to face legal consequences for Clinton’s actions is jaw-dropping.
“Somebody purposely established a private server to escape [Freedom of Information] requests, which is a violation of the government’s document law and having carelessly – ‘extremely carelessly’ in the words of the director – worked on this classified information and then was not held accountable for it is just shameful,” said Toensing.
In addition to shaking her head at Comey’s logic, Toensing says the FBI boss is dead wrong when it comes to the significance of intent. While Comey seemed to place a great deal of import on believing Clinton was not trying to break the law, Toensing says it simply doesn’t matter. She says 18 U.S. Code § 793 (f) is clear that the only consideration is whether classified information is stored in an unacceptable place.
In addition to believing Clinton did not intend to circumvent the law, he also cited a lack of precedent.
“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,” said Comey.
Critics immediately point to the case of Gen. David Petraeus, the former CIA director who faced a misdemeanor charge after showing classified information to his biographer mistress.
Toensing says the government is not being consistent at all.
“The Petraeus case is an example of somebody in a high position mishandling classified information. He gave it to just one other person who also had a clearance. Comey said it outright that they were so extremely careless that people could have hacked into this information,” said Toensing.
“He also pointed out that it didn’t matter whether the documents were marked classified, something that she’s always said cleared her. But he cleared her anyway,” said Toensing.
Toensing sees two additional major consequences from Comey’s decision. The first is the precedent it sets on these sorts of cases.
“I don’t know how the U.S. government can ever again go after somebody on any kind of level for the mishandling of classified information,” said Toensing.
She says the bigger picture is even more bleak.
“It’s a very sad day for the rule of law because this tells millions of people that there are two standards. If you’re really, really high in the government, you get to do things that the low people would be indicted for and have their clearances taken away for,” said Toensing.
