Why The FBI Didn't Throw The Book At Hillary Clinton

Why The FBI Didn't Throw The Book At Hillary Clinton

Time Magazine

In a highly unusual public statement Tuesday morning, FBI director James Comey said Hillary Clinton and her aides may have violated the law in using a private email server when she was Secretary of State, but that their actions didn’t warrant criminal charges. In its year-long investigation of how government secrets got onto the server, Comey said, the FBI found “evidence of potential violations of the statutes regarding the handling of classified information,” but he said, “we are expressing to [the] Justice [department] our view that no charges are appropriate in this case.”

In the American system, justice depends not only on judges and juries, Comey said, but also on the decisions of investigators and prosecutors. Law enforcement officials “weigh a number of factors before bringing charges,” he said, and to make those decisions responsibly they must consider “the context of a person’s actions, and how similar situations have been handled in the past.” Normally those calls are made behind the scenes, but Comey said because the case had received “intense public interest” he had decided to lay out why Clinton’s actions didn’t justify prosecution.

Comey brings nonpartisan credibility to that decision. As described in a TIME profile last March, he investigated Bill and Hillary Clinton in high profile controversies over the years, including the failed Arkansas real estate deal known as Whitewater, Bill Clinton’s last minute Presidential pardons in January 2001, and now the e-mail investigation. As George W. Bush’s Deputy Attorney General from 2003 to 2005, Comey also bucked Vice President Dick Cheney and his allies over warrantless eavesdropping and the leak of CIA officer Valerie Plame’s identity.

From the start of the Clinton e-mail case last summer, Comey instructed his agents to pursue the investigation independently, former senior FBI official John Giacalone told TIME in March. Comey put 20-30 agents on the case full time, and they collected and read tens of thousands of e-mails, and forensically analyzed multiple servers and mobile devices used to send and receive messages. They also conducted dozens of interviews, including with Clinton and her closest aides.

Over the course of the investigation, the agents found thousands of emails that contained information that should have been treated as government secrets, Comey said Tuesday, including eight messages that had Top Secret information in them. All those messages had been sent or received through unsecure, unclassified channels on Clinton’s private e-mail network. And while agents found no direct evidence that the network was hacked, the FBI thinks it is possible some “hostile actors” may have done so. That combination of facts led Comey to declare Tuesday that Clinton and her aides had been “extremely careless in their handling of very sensitive, highly classified information.”

Technically speaking, that conclusion could have put Clinton in legal jeopardy. The laws regarding handling of classified information don’t authorize punishing government officials for carelessness, but they are written so broadly they come close. One section of the Espionage Act,18USC793(f), for example, says anyone authorized to handle secrets who “through gross negligence permits the same to be removed from its proper place of custody … shall be fined under this title or imprisoned not more than ten years, or both.” Other laws controlling government secrets are similarly broad, especially with regard to Top Secret material.

In practice, however, law enforcement officials have set a high bar for prosecuting violations of those laws, looking for clear criminal intent, which Comey said was absent in the Clinton case. Because the government is awash in secrets, they are regularly mishandled unintentionally. In 2013, according to the National Archives, which tracks classification, executive branch agencies created more than 77 million documents with secrets in them, including 46,800 with newly created secrets. The FBI receivesdozens of referrals of leaked classified information every year, according to Justice Department declarations to Congress.

Prosecutors have also been wary of testing whether broad prosecutions under the espionage laws would hold up in court, especially in cases of news organizations pursuing Secret or Top Secret information for publication. In the Clinton probe, investigators found that at least some of the classified information referred to was contained in a newspaper articlethat aides then forwarded to Clinton.

To be sure, the Justice department has been aggressive in prosecuting leaks in some cases, especially under President Obama. But Clinton’s mishandling of secrets did not clear the bar for prosecution, Comey said Tuesday, when compared to other cases that have been taken to court. “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 said.

Normally, that’s a judgment made in private to avoid damaging the reputation of someone investigators aren’t prepared to prosecute. Back in 2002, when he was the top U.S. prosecutor in Manhattan investigating Bill Clinton’s 11th hour pardons, Comey declined to go public with his findings. “I can’t really go into it because it was an investigation that didn’t result in charges,” Comey said at the time. “That may be a frustrating answer, but that’s the one I’m compelled to give.” On Tuesday, Comey said he was breaking with that tradition because “the American people deserve [details of the investigation] in a case of intense public interest.”

Comey’s statement Tuesday appeared to anger both parties. Republicans including the GOP presumptive presidential nominee Donald Trump and House Speaker Paul Ryan criticized Comey for deciding not to recommend charges. Clinton surrogates criticized him for choosing to publicly discuss the matter at all.

It remains to be seen whether either decision will shield the FBI from allegations it has been politicized four months before the November election.