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‘Careless’ but not criminal: What the FBI has said about Hillary Clinton’s emails

FBI Director James Comey testified on July 7 at a U.S. House of Representatives hearing. (Video: Peter Stevenson/The Washington Post)

We thought FBI's investigation into Hillary Clinton's use of a private email server while she was secretary of state was over in July, when FBI Director James Comey said she was "extremely careless" but didn't do anything that rises to the level of prosecutable.

House Republicans were incensed with that conclusion. They grilled Comey in an hours-long hearing, which ended in a stalemate. Now, that stalemate conversation has the potential to be blown wide open with news the FBI is investigating whether additional classified material is contained in the emails that crossed Clinton's server.

We don't know why the FBI is conducting an investigation -- but we do know, thanks in part to that hearing, why they decided not to pursue criminal charges against her in the first place. So let's review those. Here are six key findings from what Comey told Congress in July:

1. The FBI can't prove Clinton knew she was sending and receiving classified material on her server

Here's Comey explaining law to, ironically, a room full of lawyers: "In our system of law there's a thing called mens rea. It's important to know what you did. But when you did it, this Latin phrase mens rea means: What were you thinking?. And we don't want to put people in jail that they knew they were doing something they shouldn't do."

As to how that applies to the Clinton case, Comey said:

"I see evidence of great carelessness, but I do not see evidence that is sufficient to establish that Secretary Clinton or those with whom she was corresponding with ... knew when they did it they were doing something that was against the law."

2. There could be consequences

Here's a heated conversation between Rep. Jason Chaffetz (R-Utah), chair of GOP-led House oversight committee that asked Comey to speak, and Comey:

CHAFFTEZ: "Did Hillary Clinton do anything wrong?"
A pause.
COMEY: "What do you mean by 'wrong' ?"
CHAFFETZ: "It's self-evident."
COMEY: "Well, I'm a lawyer, I'm an investigator, I hope I'm a normal human being."
CHAFFETZ, interrupting him: "Do you really believe there should be no consequence for Hillary Clinton and how she dealt with this?"
That seemed to irritate the normally calm Comey.
COMEY: "I didn't say there's no consequences for someone who violates the rules regarding the handling of classified information. There are often very severe consequences in the FBI involving their employment, involving their pay, involving their clearances. I hope folks walk away understanding that just because someone's not prosecuted for mishandling classified information, that doesn't mean, if you work in the FBI, there aren't consequences for it."

3. There's a clear difference between what Clinton did and what David Petraeus did

(Former CIA director and general David Petraeus pleaded guilty to a misdemeanor charge of mishandling classified material after he was accused of giving the information to his biographer and mistress, Paula Broadwell.)

When lawmakers brought up that case, Comey replied that it "illustrates perfectly the kind of cases the Department of Justice is willing to prosecute," then he ticked off the reasons why he thought it was different than Clinton's:

  • The general had "vast quantities of highly classified information."
  • He shared it with someone who wasn't supposed to see it.
  • He kept the information hidden under the insulation in his attic. (A new piece of information about the case.)
  • "And then he lied to us about it during our investigation," Comey said. "So you have obstruction of justice. You have intentional misconduct in a vast quantity of information. He admitted he knew that was the wrong thing to do."
    And also what other people did.

In the hearing, Republicans also brought up former CIA director John M. Deutch, who pleaded guilty in 2001 to mishandling classified documents after it was discovered several of his laptops had classified information wrongly labeled as unclassified. Republicans have claimed that's the closest parallel to the Clinton case.

Comey strongly disagreed. "[Deutch] took a huge amount of documents, attempted to destroy some of them when he got caught, admitted: 'I knew I wasn't suppose to be doing this,' he said. " ... Those are the kinds of cases that get prosecuted."

4. Clinton may not have been 'sophisticated' enough to understand classified markings

Rep. Mark Meadows (R-N.C.) pointed out that the documents Clinton was receiving and sending would have been marked with a "C."

MEADOWS: "Wouldn't a reasonable person know that that was a classified marking?" he asked.
COMEY: "Before this investigation I probably would have said yes. Now, I'm not so sure."
MEADOWS:  "Come on. I've only been here a few years, and I understand the importance of those markings. So you're suggesting that for a long length of time that she had no idea what a classified marking would be?
COMEY: "It's an interesting question as to whether she was actually sophisticated enough to understand what a 'C' means."

5. Did Clinton lie?

Comey's investigation did contradict most, if not all, of what Clinton has been saying publicly about her emails and why she used the private server. In a made-for-campaign-commercial moment, Rep. Trey Gowdy (R-S.C.) proceeded to systematically point out those contradictions with Comey's help:

GOWDY: "Secretary Clinton said she never sent or received classified information over her email? Was it true?"
Comey replied it wasn't true.
GOWDY: "Secretary Clinton said there was nothing marked classified either sent or received. Was it true?"
Nope, not true either, Comey essentially said.
GOWDY: "Clinton said, 'There is no classified material.' Was that true?"
COMEY: "There was classified material emailed."
GOWDY: "Secretary Clinton said she used one device. Was that true?"
COMEY: "She used multiple devices during her four years as secretary of state."

6. The law makes it near impossible to prosecute this

Here's the bottom line about why Clinton is not being prosecuted, Comey told Congress: "In my experience, which is three decades, no reasonable prosecutor would bring this case. I know that frustrates people, but that's the way the law is and that's the way the practice is as the Department of Justice."