The investigation into Hillary Clinton’s emails has now, for all intents and purposes, come to an end — even if the controversy over the matter will continue on indefinitely. Democrats won’t get their wish that Clinton will be completely exonerated, and Republicans won’t get their wish that Clinton would be led off in leg irons.
There will be no indictment, no criminal prosecution, no dramatic trial. But the FBI’s conclusions do raise some serious questions that Clinton ought to address, questions with implications for her possible presidency.
Let’s start with what FBI director James Comey said in his statement this morning. Here’s the part that has the most serious criticism of what Clinton and her aides did:
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.
For example, seven e-mail chains concern matters that were classified at the Top Secret/Special Access Program level when they were sent and received. These chains involved Secretary Clinton both sending e-mails about those matters and receiving e-mails from others about the same matters. There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation.
Clinton has insisted that none of the content in her emails was marked classified at the time it was sent and received, though some of it was retroactively “up-classified” later on. From Comey’s comments, this appears to be only half-true. When she has said that, she may have been thinking about documents with classified markings, as in, “I’ve attached this report, which has been stamped classified.” But what Comey is saying is that she and those she corresponded with discussed topics that were already classified even if they weren’t passing classified documents back and forth.
Now here’s the part of Comey’s statement that caused a big sigh of relief over at Clinton headquarters:
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.
To be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences. To the contrary, those individuals are often subject to security or administrative sanctions. But that is not what we are deciding now. As a result, although the Department of Justice makes final decisions on matters like this, we are expressing to Justice our view that no charges are appropriate in this case.
To anyone who has been following this story, the FBI’s conclusion is not a surprise. I’ve been saying all along that while what Clinton did was dumb and violated State Department policy, it wasn’t a crime. You didn’t have to be a genius to figure that out.
For at least a while, the discussion about this subject will be all about the “optics,” how it will affect Clinton’s poll ratings on trustworthiness, whether Trump will be able to capitalize on it, how it might affect turnout among left-handed divorced baby boomer Browns fans in the Cleveland suburbs, and so on. But let’s ask some more fundamental questions.
What does this outcome really tell us about Clinton, and what lessons should she take from this whole mess?
The worst thing would be for her to just say, “Whew — dodged a bullet there!” and draw no larger conclusion other than that it was a mistake to use her own email system and not the State Department’s (which she has already said publicly many times). She should start by asking herself why she did it in the first place. It’s possible that at the outset she didn’t understand what the security implications would be; my guess is that she wanted to do it because she knew she’d be the target of endless FOIA requests and lawsuits, and wanted to keep her daily correspondence (both work-related and private) from the hands of those who have made it their mission in life to destroy her. In other words, it wasn’t because she was planning to engineer some kind of criminal conspiracy via email, but she figured it would save her a lot of headache. That calculation turned out to be rather misguided, to say the least.
But it also arises from Clinton’s natural, default impulse toward secrecy. You can argue that she came by that impulse honestly; after a couple of decades of Republicans and the media rummaging through every part of her private and public life and shouting “Scandal!!!” at everything they could find, no matter how banal or benign, it’s understandable that her first instinct is to keep hidden whatever she can. But her experience also should have demonstrated to her that again and again that instinct has gotten her into trouble. Yes, many people are going to assume that she has nothing but the most sinister intentions in everything she does. But in the hopes of depriving them ammunition, she has often given them more ammunition than they could have dreamed of.
Another vital lesson to learn from this affair: Clinton was incredibly ill-served by the people she had working for her, who should have understood, both in technical terms and in terms of the department’s procedures and policies, why this was such a bad idea. One damning aspect of the Inspector General’s report that was released in May was the picture it painted of people within the department repeatedly telling Clinton’s close aides that her email system presented a problem, and in response being told some version of “Don’t worry about it; we’ve got it covered.” Nobody expected Clinton in 2009 to be an expert in cybersecurity or even in the intricacies of government classification procedures. But her staff should have listened to those who did have expertise in those areas, and then had the guts to say to her, “Madame Secretary, I realize this is something you’d like to do, but it’s a terrible idea, and you just can’t.”
Evidently nobody said that to her. Perhaps this is because after years with the Clintons, her closest aides exist in a kind of permanent bunker mentality, where they know they’re constantly under siege and all threats tend to merge together. Or maybe it’s because Clinton prizes personal loyalty too much, and elevates people more for their unflagging commitment to her than for other kinds of skills and characteristics that might have saved her from herself in a case like this.
In any case, as president, Clinton will run the risk of being even more closed off from the kind of candid counsel she failed to get in his case than she was as Secretary of State. She’ll have more power and be surrounded by people being even more deferential and less likely to tell her when she’s wrong. So the risks of something like this repeating — this time with genuine consequences — will be significantly larger.
Obviously, in the midst of a campaign Clinton isn’t going to speak particularly frankly, or at much length, about what she has learned from this controversy and how it has changed the kind of president she’ll be. But we should hope that she is thinking about it, that she is learning from it, and that it will change the kind of president she’ll be, if she is elected.