Here’s why the FBI concluded Hillary Clinton’s email practices did not rise to the level of criminal charges.
COMPILED FROM WIRE REPORTS
WASHINGTON – FBI Director James B. Comey delivered a stinging public rebuke of Hillary Clinton on Tuesday, saying that even though the former secretary of state should not face criminal charges for using a private email account, she and her aides had been “extremely careless” in handling highly classified information.
Comey’s long-anticipated recommendation to the Justice Department removed the most serious threat that had hung over Clinton’s presidential campaign – the possibility of a criminal indictment.
Federal law makes it a crime for a trusted U.S. official to “knowingly and willfully” disclose or transmit secret information to an “unauthorized person.” A second law makes it a crime to “remove” secret documents kept by the government or to allow them to be stolen through “gross negligence.”
But Comey’s public judgment about her lax handling of government secrets will surely resound from now until November.
“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,” Comey told reporters at FBI headquarters.
Even so, he said, “our judgment is that no reasonable prosecutor would bring such a case.”
Comey said he and other top bureau officials determined that that the case lacked the aggravating factors that have led prosecutors to press charges in the past.
He noted that those previously charged in such instances intentionally or willfully mishandled classified information, or did so in such vast quantities that they must have known what they were doing. Others had been disloyal to the United States, he said, or tried to obstruct justice.
“We do not see those things here,” he said.
It is highly unlikely that the Justice Department will overrule the director’s recommendation. Last week, Attorney General Loretta Lynch said she would accept the decision of Comey and career prosecutors who have been working on the case.
‘Not a crime’
“It’s just not a crime under current law to do nothing more than share sensitive information over unsecured networks,” said Stephen Vladeck, a law professor at the University of Texas. “Maybe it should be, but that’s something for Congress to decide going forward.”
Comey made clear, Vladeck said, that “however much we might want federal law to make her carelessness a crime, nothing she did falls within the letter of the relevant federal criminal statutes.”
The laws protecting classified information go back to World War I and the need to protect military secrets from enemy agents. In recent decades, however, these laws have been used at times to prosecute officials who gave classified information to people who are not entrusted to have it.
The best-known recent case involved Army general and former CIA Director David H. Petraeus, who pleaded guilty to a misdemeanor for disclosing highly secret information – including the identities of covert agents – by giving it to his girlfriend who was writing his biography. He was also accused of lying to the FBI during the investigation.
Sandy Berger, a former national security adviser under President Bill Clinton, also pleaded guilty to a misdemeanor for leaving the National Archives with classified documents hidden in his socks.
John M. Deutch, another former CIA director, narrowly avoided a misdemeanor charge for having taken hundreds of top secret files home on his laptop computer. He was pardoned by Clinton before charges were filed.
But none of those cases fit the peculiar situation whereby the secretary of state chose to bypass the department’s nonclassified email system and instead relied on a personal server to handle her regular communications with her staff.
‘Should have known’
Clinton also used the department’s secure email system for transmitting classified information, but the FBI found that some of the regular communications with her staff on the personal server involved facts and details that she should have known were classified. In a few cases, the emails bore markings to indicate they contained classified information.
In the end, Comey, a deputy attorney general under President George W. Bush, said Clinton’s careless conduct fell short of a crime because there was no evidence of “clearly intentional and willful mishandling” of classified information and no sign of “disloyalty” or an effort to “obstruct justice.”
But prosecutors said they were unaware of any convictions based on gross negligence alone.
The FBI’s recommendation did not come as a surprise to lawyers who closely follow issues involving classified information.
Stewart Baker, a top national security lawyer in the Bush administration, called Comey’s statement “pretty damning for Secretary Clinton, even if the facts don’t make for an impressive criminal case.
He suggests that she should have been, or arguably could still be, subjected to ‘security or administrative sanctions.’
“What he doesn’t say, but what we can infer, is that she ran those incredible risks with national security information because she was more worried about the GOP reading her mail than of Russian or Chinese spies reading it. That’s appalling,” he said.
Clinton and her team clearly skirted the most basic rules for the handling of classified information, and their actions went well beyond carelessness to an open flouting of known practices, security experts inside and outside the administration said Tuesday.
Experts were especially disdainful of the FBI’s finding that highly classified information turned up in emails that Clinton sent and received on her unsecured server. That alone was in violation of the Foreign Affairs Manual, a comprehensive set of State Department policies, that, among other restrictions, require that a different computer system be used when dealing with classified documents and that a physical distance, or “air gap,” separate it from other computers.
“If she didn’t want to carry two systems, she could have had a staffer or one of the agents assigned to her protective detail hand her the (other) system,” said Scott Stewart, vice president of tactical analysis for Stratfor, an Austin, Texas-based global security consultancy. Stewart is a former Diplomatic Security Service special agent for the State Department.
Failing to maintain that dual system “is just unconscionable, especially if we are putting code-word material on an unclassified system,” Stewart said, referring to the practice of compartmentalizing classified cables or documents with code words that ensure access only on a “need-to-know” basis.
“That’s not carelessness. That was intentional,” Stewart said.
Comey said that Clinton also used her personal email extensively “in the territory of sophisticated adversaries,” a practice he said made it “possible that hostile actors gained access to Secretary Clinton’s personal email account.”
He did not name the countries, but the U.S. government has warned repeatedly in recent years about the dangers of cyber intrusions throughout the world.
Last year, President Obama stopped staying at the Waldorf-Astoria Hotel in Manhattan for the annual United Nations General Assembly session because the property had been sold to an insurance company in China, a nation that would qualify as a “sophisticated adversary.”
Other punishment possible
In his presentation Tuesday, Comey suggested that while he was recommending no criminal charges, other “consequences” were possible, including what he called “security or administrative sanctions.” But the experts said it was unlikely such sanctions would be used against Clinton or her aides, especially if she wins the election.
“Once you’re president, you have access to whatever you want. You can ask for whatever you want and they have to give it to you, within reason,” said one official who’s familiar with security procedures across the federal government. He spoke under the condition of anonymity because of the sensitivity of the issue. “Bill Clinton famously joked that he was going to look for UFOs when elected.”
Clinton’s senior aides also are unlikely to face problems. Experts say the process of revoking someone’s clearance takes up to a year – well after the November vote.
In addition, the process is overseen by the Office of Personnel Management, which falls under the executive branch. In other words, if she wins, Clinton’s White House would decide whether her former aides merit security clearances.
Lax State Department
Comey also chastised the State Department for what he said was a lax security culture that fell short “in the kind of care for classified information found elsewhere in the government.”
That assessment was seconded by officials who’ve worked across the federal government, saying the State Department was well known for looser security than, say, the Pentagon or the National Security Council.
One U.S. official, asked for examples of such lax practices, let out a sigh and began to list practices he observed among State Department employees: sticking passwords under keyboards, sharing passcodes to open gates on unsecured phone lines, leaving computers “just lying around, sometimes open and sometimes closed.”
Outside data security experts concurred.
“I know enough about State Department security to not have a lot of faith in it. They are behind the times,” said Herbert S. Lin, a scholar at the Center for International Security and Cooperation at Stanford University.
David G. Savage, Del Quentin Wilber and David Lauter of the Tribune Washington Bureau; and Hannah Allam and Tim Johnson of the McClatchy Washington Bureau (TNS) all contributed to this report.