In his statement to the press today, FBI director James Comey laid out new details about Hillary Clinton’s email server arrangement. Among the most serious were these:
1) Of the emails Clinton turned over to the State department, “110 e-mails in 52 e-mail chains have been determined” to “contain classified information at the time they were sent or received,” and eight of these “contained information that was Top Secret at the time they were sent.”
2) Clinton and her colleagues at the State Department were “extremely careless in their handling of very sensitive, highly classified information.” Seven of the email chains were classified as highly sensitive, and they “should have known that an unclassified system was no place” for them.
3) While only a “very small number” of the emails that contained classified info bore “markings indicating the presence of classified information,” nonetheless, “participants who know or should know that the subject matter is classified are still obligated to protect it.”
Yet Comey declared that he would not be recommending that the Department of Justice bring criminal charges. As Comey put it:
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. 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.
According to experts I spoke with today, the crux of the decision appears to turn on the question of whether there is evidence that the conduct outlined above rises to the level of “mishandling classified information either intentionally or in a grossly negligent way.” That’s the phrase Comey used to describe what constitutes a felony violation of relevant statute.
The most obvious of Comey’s conclusions was that there was no evidence of intent to mishandle the information. But how is it possible that Comey determined that the above conduct also does not constitute “gross negligence,” even if it was not intentional?
Elizabeth Goitein, the co-director of the Brennan Center’s Liberty and National Security Project, makes a key distinction, noting that investigators likely concluded that there was not sufficient evidence to get a conviction for gross negligence, aside from whatever they personally believed as to whether any such gross negligence did occur.
“Comey didn’t think the evidence would support a criminal prosecution,” Goitein tells me. “That’s what prosecutors base their decisions on — what the evidence shows, not what they personally think happened.”
This might explain why Comey carefully claimed in his statement that there is “evidence of potential violations of the statutes,” while also claiming that in spite of this, “no reasonable prosecutor” would bring this case. Note that in so doing, Comey explicitly said that one of the considerations concerned the “strength of the evidence.”
Comey also took care to note in his statement that unlike in Clinton’s case, previous cases prosecuted involved either intentional mishandling of classified info; levels of disclosure that allowed for an inference of willful mishandling; signs of disloyalty to the U.S.; or some combination of those.
“Hillary Clinton was never likely to be indicted, because no one has ever been prosecuted before in a situation similar to hers,” Matthew Miller, a former spokesman for the Justice Department, tells me. “There’s never been a case where someone has been prosecuted where either gross negligence or willful intent weren’t completely obvious.”
Take, for instance, the case of former General David Petraeus. Donald Trump, responding to Comey’s announcement, tweeted this today:
The system is rigged. General Petraeus got in trouble for far less. Very very unfair! As usual, bad judgment.
— Donald J. Trump (@realDonaldTrump) July 5, 2016
But as Michelle Lee has explained, Clinton’s case really is not like that of Petraeus. As part of his plea agreement, Petraeus admitted to mishandling information that he had known was highly classified; lied to the FBI during its investigation; and admitted to doing that, too. Petraeus acknowledged that these things were “knowing and deliberate.”
Meanwhile, as Josh Gerstein recently detailed for Politico, a number of other previous prosecutions in cases like these really did contain some of elements that Comey today said are not present in the case of Clinton.
Steven Aftergood, an expert on government secrecy, tells me that the question of whether a “threshold for culpable negligence” has been cleared is “a judgment that is made in part by prosecutors based on previous cases.”
Aftergood concluded: “The threshold for culpable negligence is evidently higher than what was met in this case.”