FBI Director James Comey today announced that the Bureau is recommending against any federal criminal prosecution of Hillary Clinton related to her email practices while Secretary of State. FBI’s coverage, and the Director’s statement, are here.
This announcement was only of limited help to Secretary Clinton. The Director’s announcement lambasted her for her handling of sensitive material, and exposed the reality that she used multiple unsecured email servers and sent/received emails that contained highly classified subject matter. But, according to the Director, Clinton did not act willfully or intentionally, nor did this case involve an effort to obstruct justice or to engage in any disloyalty to the United States. So even though there was evidence that could have implicated the federal criminal statutes regarding the handling of classified information, in Comey’s determination, no reasonable prosecutor would have prosecuted the conduct at issue here.
Legally, the issue is not dead yet. The FBI does not charge crimes or seek indictments. It is the prosecutors at Main Justice who will have the final say as to actual prosecutions. But it is almost impossible to imagine that Main Justice will reject this recommendation.
While I think the decision is defensible when one views the particular exercise of prosecutorial discretion here, I am interested in Comey’s thinking. He spends considerable time in his announcement discussing the improper conduct of Secretary Clinton, and concludes that “there is evidence that [she and her colleagues] were extremely careless in their handling of very sensitive, highly classified information.” One might imagine that “extremely careless” means the same thing as “grossly negligent,” which is the mental state that one of the relevant statutes contains. See 18 U.S.C. 793(f). This will not escape the attention of Clinton’s critics today and in the coming days and weeks. And if that is true – that Clinton was “extremely careless” – then it is not clear to me why no reasonable prosecutor would bring a prosecution for mishandling classified information in a grossly negligent manner, pursuant to section 793(f).
Once one considers the history of prosecutions under the Espionage Act, however, and the context of this particular case, it is easier (though not easy) to see why a federal prosecutor might choose not to pursue an indictment here. I believe Comey was more interested in those factors than the issue of her mental state. But Comey’s announcement also focuses substantially on evidence of intentional conduct, while seemingly minimizing the evidence of gross negligence. Again, it may very well be that even with evidence of gross negligence, there were other countervailing prosecutorial considerations that militated against seeking an indictment. That is understandable here. Still, I would have liked a more detailed explanation on this particular detail, which I think Comey’s statement leaves mostly unexplained. And I will be interested in seeing whether Comey speaks further about this issue in the future.
Today’s decision will almost surely spare Clinton a criminal prosecution, but it will do very little to squelch questions about whether she should be the next President. The press will hound her with inquiries about the FBI’s conclusions. And the FBI’s findings will play into every narrative about Clinton that her campaign would wish to avoid: that, her opponents will argue, she is an inveterate liar who is allowed to live by her own rules and whose corruption receives the constant protection of a Washington legal and political establishment that will never change as long as people like her sit atop the governmental food-chain. And bellicose TV game show host Donald Trump will likely do everything in his power (which is to say, his Twitter account) to push this narrative over and over again.
In light of the findings and the coming onslaught, then, Clinton may want to consider a deeper and more sincere public mea culpa than we have seen thus far. At the same time, it was always struck me as odd that the Clinton campaign has allowed Trump – of all people – to paint her as a liar, when she has an easy response that would simply involve publicly cataloguing Trump’s whoppers. She has also allowed Trump to paint her as someone with “bad judgment,” though she has a smorgasbord of examples from which she could choose to show Trump’s poor judgment. Saying he is “temperamentally unfit” is a useful phrase (and true enough), but still of limited value when she allows him to paint her as he has done thus far. And today’s events won’t help her much.
Finally, a word about the folks at Justice. The one Trump line of attack that he has been pushing most aggressively – that Clinton is benefiting from a “rigged system” – is a tough sell in this case. James Comey is a man of real integrity, a hard find in official Washington. He knows the principles of federal prosecution, understands the exercise of prosecutorial discretion, and has a long and distinguished record of apolitical service and decision-making in the DOJ. It will be nearly impossible to make Comey into some political hack who is part of a legal establishment looking out for the Clintons and their cronies.
So I suspect that this line of attack will fail, and it should. Trump’s attack essentially accuses the entire federal law enforcement community – both at FBI and Main Justice – of political hackery and of perpetuating a criminal justice system that is unfair to all but the powerful. Nonsense. These are folks who deal with the most important and consequential criminal and national security issues that our Nation faces. While not perfect, they care deeply about spending their days trying to get it right. They can do without the distant criticism from a man who has zero experience in sniffing out and punishing crime – and whose most important decision-making in recent years has involved the fake employment status of Meatloaf and Bret Michaels, or the location of another golf course that will be accessible only to the wealthy and privileged.