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The VICE Guide to the 2016 Election

Why Clinton's 'Extreme Carelessness' with Classified Emails Isn't Criminal

Hillary Clinton may have avoided being indicted thanks to the difference between gross or intentional negligence and regular incompetence.

by Harry Cheadle
Jul 5 2016, 5:31pm

Hillary Clinton celebrates her win in the New York primary in early June. Photo by Timothy A. Clary/AFP/Getty Images

On Tuesday morning, FBI Director James Comey made one of the most anticipated announcements of the 2016 election cycle, telling the press that after a thorough investigation, the bureau had found that when Hillary Clinton served as secretary of state, she and her staff had sent or received 110 emails containing information that was classified at the time, including eight emails that contained top secret information. Clinton and her staff, Comey said, had been "extremely careless"—but had done nothing that rose to the level of obvious criminality.

"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," Comey said.

The formal decision about whether to charge anyone with anything will fall to the lawyers at the Department of Justice, but given Comey's announcement, it doesn't seem likely that Clinton or anyone on her staff will be indicted. "It would be highly unusual" for any charges to come now, Andrew Levi, a former federal prosecutor now working as a private defense attorney, told VICE.

To conservatives and other Clinton critics, this may look like the Democratic nominee is once again getting a free pass despite whiffs of wrongdoing by her or her husband, former president Bill Clinton—a charge that dates all the way back to Whitewater. After all, not only did Clinton use a private email account and store the emails on a series of private servers, she also apparently failed to provide the State Department with all of the work-related emails on those servers. The FBI, Comey said, found "several thousand" deleted work-related messages that weren't among the 30,000 that Clinton's staff sent to the State Department after news of her use of a private email server first broke last year.

Clinton has also equivocated and hedged when talking about the investigation into her email practices, calling it a "security inquiry" at one point and insisting that she "never received nor sent any material that was marked classified," an excessively lawyerly turn of phrase that distinguishes between material marked classified and classified material that may have not been marked correctly.

Still, after the FBI combed through the 30,000 emails Clinton provided, and combed through her servers in search of additional messages, agents apparently found nothing that rose to the level of a crime. During Tuesday's press conference, Comey noted that it was a felony to "mishandle classified information either intentionally or in a grossly negligent way," and that it appears as though the difference between intentional or gross negligence and ordinary run-of-the-mill negligence was an important factor.

"Frequently, in these kinds of cases, the most important element is the element of intent. For the prosecution, that's the hardest element to prove," Levi said. "The types of items that are the smoking guns are the efforts to cover-up, to conceal... It seems like they didn't find anything like that here."

The investigation was one of the most politically important in the recent history of presidential politics—if the FBI had recommended charges, it could have upended the 2016 race—and public scrutiny was intense. David Gomez, a retired FBI agent who has written for VICE, said that the investigation proceed "at warp speed, and that in itself causes difficulties, because [agents] are trying to figure out what the classification was, if any, when was it sent, who sent it," and a host of other questions about every piece of information sent in these emails.

The intent of the email senders, Gomez added, would be particularly important for prosecutors looking to eventually convince a jury that a crime had been committed.

Conservatives have been demanding that the Department of Justice prosecute Clinton for months, and over the weekend, as she was interviewed by the FBI as part of the final stages of the investigation, Republicans, including Donald Trump, called for her to be arrested. They also cried foul over a meeting between Bill Clinton and Attorney General Loretta Lynch. After Comey's announcement, Trump's Twitter account—which at this point is one of the main communication organs of the GOP—was hopping mad:

Clinton is obviously eager to move on, with her campaign releasing a statement saying, "As the Secretary has long said, it was a mistake to use her personal email and she would not do it again. We are glad that this matter is now resolved."

But though criminal charges appear to be off the table, Comey emphasized repeatedly that he was not absolving Clinton's staff altogether. "The security culture of the State Department in general, and with respect to use of unclassified email systems in particular, was generally lacking in the kind of care for classified information found elsewhere in the government," the FBI director said. He added that people who do what Clinton's staff did in regards to emails "are often subject to security or administrative sanctions. But that is not what we are deciding now."

Comey's "extremely careless" line, and the broader notion that the Clinton family flouts the rules, will surely be the subject of attacks against the Democratic candidate in the weeks and months to come. Those attacks in turn will probably convince Clinton supporters that the Republican Party is unconcerned with the facts and is just out to destroy Clinton by any means necessary. (Comey has already been criticized for his harsh statements.) But that is just the normal noise of politics. Comey, for one, seemed glad that his part in the drama was officially over.

"I know there were many opinions expressed by people who were not part of the investigation—including people in government—but none of that mattered to us," he said. "Opinions are irrelevant, and they were all uninformed by insight into our investigation, because we did the investigation the right way. Only facts matter, and the FBI found them here in an entirely apolitical and professional way."

Follow Harry Cheadle on Twitter.

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