The Washington PostDemocracy Dies in Darkness

FBI defends decision not to charge Clinton as it submits probe documents to Congress

Hillary Clinton is taken by Vice President Joe Biden to his childhood home in Scranton, Pennsylvania, after attending a rally, on Monday August 15, 2016. (Photo by Melina Mara/The Washington Post)

The FBI on Tuesday forcefully defended its decision not to criminally charge Hillary Clinton in connection with her use of a private email server as secretary of state in a letter to lawmakers that laid out its rationale for refusing to do so.

The letter was sent to House Oversight Committee lawmakers the same day that the bureau released to the GOP-controlled Congress a variety of material from its investigation.

It marked yet another occasion in which FBI leadership responded to – and in some cases, rebutted – GOP claims about why the Democratic presidential nominee should have been charged. But the materials turned over to lawmakers – which included an investigative summary; reports known as “302s” containing interviews with Clinton and others; and classified emails found on her private server – may give Republicans fodder to criticize Clinton in the months before the election.

That is, if that material — some of which is classified — is actually released or leaked by Republicans, which could put them in the awkward spot of defending the release of sensitive information, which they have criticized Clinton for mishandling by using a private server as secretary of state.

But there was confusion Tuesday night among lawmakers about what pieces of the material could eventually be released to the public. House Oversight Chair Jason Chaffetz had yet to personally review the material, but was skeptical it could be made public; but Senate Judiciary Committee Chair Charles E. Grassley seemed to indicate that much of the material ultimately could be released.

FBI Director James B. Comey announced in early July that he was recommending Clinton not be charged, and the letter, which was released Tuesday by Rep. Elijah Cummings (D-Md.), largely repeated statements he had made previously in public. But it also notably seemed to take aim at some ongoing conservative criticisms of Clinton – particularly that she was negligent in her handling of classified information and thus deserving of criminal charges.

[FBI recommends no criminal charges in email probe]

“As the Director stated, the FBI did find evidence that Secretary Clinton and her colleagues were extremely careless in their handling of certain, very sensitive, highly classified information,” FBI Acting Assistant Director Jason V. Herring wrote. “The Director did not equate ‘extreme carelessness’ with the legal standard of ‘gross negligence’ that is required by the statute. In this case, the FBI assessed that the facts did not support a recommendation to prosecute her or others within the scope of the investigation for gross negligence.”

The documents released were turned over to several House committees, including Oversight and Government Reform, the Permanent Select Committee on Intelligence and the Judiciary panels. The bureau said in a statement the materials were provided to “assist [lawmakers] in their oversight responsibilities in this matter,” and they were turned over “with the expectation it will not be disseminated or disclosed” unless the agency agrees.

Chaffetz (R-Utah) said his staff had informed him that among the materials turned over was a “heavily redacted” 302 from Clinton herself, and he was not sure that any of the information could be released publicly. Chaffetz, who had not yet reviewed the materials personally, said his office was “putting every precaution in place” to prevent leaks and criticized Clinton for her spokesman’s assertion that if the material were being released to Congress, it should be disseminated more widely.

“Hillary Clinton is calling on this all to be publicly released, but she knows that can never happen,” Chaffetz said in an interview.

Chaffetz added, though, that he hoped the public would get a more complete window into the FBI’s investigation, and he planned to spend the weekend reviewing the materials himself. He said he was “grateful” to the FBI for turning over the material, though the redactions would make his work more difficult.

But Grassley (R-Iowa) said in a statement “it seems that much of the material given to the Senate today, other than copies of the large number of emails on Secretary Clinton’s server containing classified information, is marked ‘unclassified/for official use.'”

“The FBI should make as much of the material available as possible,” Grassley said. “The public’s business ought to be public, with few exceptions.  The people’s interest would be served in seeing the documents that are unclassified.  The FBI has made public statements in describing its handling of the case, so sharing documents in support of those statements wherever appropriate would make sense.  Right now, the public is at a disadvantage and has only part of the story.”

The delivery of the material to the Republican Congress in the midst of a heated campaign season is not likely to help the campaign of Clinton, who is leading in the polls against GOP presidential nominee Donald Trump. Polls show that 60 percent of voters don’t believe the Democratic nominee and former first lady is “honest.”

Herring, who directs the FBI’s Office of Congressional Affairs, wrote that someone else who engaged in the type of conduct of which Clinton was accused might face “severe administrative consequences,” and the FBI was in the process of providing relevant information to other government agencies. The State Department, for instance, is conducting its own internal review of whether classified information was mishandled.

Their conclusions could affect future security clearances for possible members of a new Clinton administration who may have violated rules when they previously worked at Clinton’s State Department.

But Herring also asserted that investigators found no evidence Clinton intended to mishandle classified information, noting that even three emails marked as classified did not originate with her and that State had determined two of them did not contain classified information.

Senate Intelligence Committee ranking member Dianne Feinstein (D-Calif.) said in a statement: “The FBI’s letter to the Judiciary Committee makes clear this is much ado about nothing.” Chaffetz said it left him unpersuaded, and while members of his committee would were “not investigating the investigators,” they were “trying to figure out what happened so that we can try to solve it.”

“We got to make sure this never ever happens again,” Chaffetz said.

Clinton campaign spokesman Brian Fallon called the document transfer “an extraordinarily rare step that was sought solely by Republicans for the purposes of further second-guessing the career professionals at the FBI.”

“We believe that if these materials are going to be shared outside the Justice Department, they should be released widely so that the public can see them for themselves, rather than allow Republicans to mischaracterize them through selective, partisan leaks,” Fallon argued.

Clinton has sought to defray controversy over the email server she used while serving as Obama’s chief diplomat, saying using it was a “mistake” for which she is “sorry.” But the issue continued to swirl as the FBI investigated whether there was criminal behavior in the use of the server by Clinton and her then-aides at State.

For his part, Comey has offered a remarkable level of candor on an unusually high-profile investigation. In early July, Comey said at a news conference that “no reasonable prosecutor” would bring such a case despite “evidence of  of potential violations of the statutes regarding the handling of classified information.” He added that Clinton and her staffers were “extremely careless” in their “handling of very sensitive, highly classified information.”

During July 7 testimony before the Oversight Committee, Comey defended his decision not to bring charges before incredulous Republican lawmakers and promised to provide all the documents that he was legally allowed to turn over.

[House Republicans grill Comey on Clinton emails]

“The FBI already determined unanimously that there is insufficient evidence of criminal wrongdoing,” Cummings, Oversight’s top Democrat, said Tuesday. “Republicans are now investigating the investigator in a desperate attempt to resuscitate this issue, keep it in the headlines, and distract from Donald Trump’s sagging poll numbers.”

House Intelligence Committee ranking member Adam Schiff (D-Calif.) said the committee had received “the FBI witness interview reports, including that of Secretary Clinton’s interview, along with other materials from the FBI’s now closed investigative file.”

Schiff added there was “little legitimate purpose” to releasing the documents, except for emails that came from Clinton’s private server, as “their contents will simply be leaked for political purposes.”

“This has been done in the name of transparency, but as this precedent chills the cooperation of other witnesses in the future, I suspect the Department of Justice will later come to refer to it by a different name – mistake,” Schiff said.

Oversight member Matt Cartwright (D-Pa.) suggested Tuesday that Republican leaders were focusing on the FBI documents as an “unreasonable” political diversion from GOP presidential nominee Donald Trump.

“They may be willing to risk appearing completely unreasonable, if that helps distract people from the next utterly insane or un-American thing that Donald Trump says,” Cartwright said.

At the State Department, spokesman Mark Toner said the department had “been provided emails the FBI intends to give to Congress and we’ve reviewed them.”

State Department officials asked the FBI to keep them “apprised of any information that they provided to Congress,” Toner said.

He added that officials had not yet received the summaries of the FBI’s interviews, referred to as “302s.” “We continue to work with the FBI on those interview summaries,” Toner said Tuesday.

Separately, the State Department has agreed to turn over to the advocacy group Judicial Watch all the documents the FBI had provided to it that would be subject to Judicial Watch’s FOIA request. The FBI has said its investigators recovered work-related emails that Clinton and her lawyers did not turn over.

[Clinton acknowledges misspeaking about FBI director’s testimony]