“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. 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. I couldn’t be prouder to be part of this organization.”
-FBI Director James B. Comey
I’m not remotely surprised at the FBI’s conclusion that no reasonable prosecutor would bring charges against Hillary Clinton based on the facts its investigation yielded. The statutes on which such a prosecution would be based are clearly not intended to catch a cabinet member who had sloppy e-practices; they’re aimed at actual bad guys seeking to bring down the American government.
In fact, as LawNewz.com’s Dan Abrams pointed out in an earlier article, the Supreme Court somewhat addressed this issue:
In 1941, the U.S. Supreme Court heard a case which challenged whether the phrase “national defense” in this Espionage Law was too vague and overbroad. The answer was no only because:
“we find no uncertainty in this statute which deprives a person of the ability to predetermine whether a contemplated action is criminal under the provisions of this law. The obvious delimiting words in the statute are those requiring intent or reason to believe that the information to be obtained is to be used to the injury of the United States, or to the advantage of any foreign nation. This requires those prosecuted to have acted in bad faith.”
The Supreme Court clearly never envisioned a prosecution under the Espionage Act without “intent” to injure the United States and in “bad faith.” (This was in reference to a different section of the same law but the point remains the same.) Other courts have interpreted the phrase “national defense” narrowly as a direct result of the fact that on its face, the words seem so broad.
Clearly, FBI agents found that Clinton had no intent nor bad faith to mishandle classified information when she used her private email server. Furthermore, prosecutors are not obligated to indict everyperson who has done something wrong; they are expected to exercise prosecutorial discretion to make informed choices about which casesmake sense to bring. The imagined case against Hillary Clinton has never seemed particularly compelling, except to those who have disliked her for years, hoping for any excuse to watch her crash and burn.
And this news that Hillary Clinton is cleared from this investigation didn’t go well for many people in the political world that would have like to see Clinton indicted and politically destroyed. Donald Trump threw in his two cents of outrage on Twitter and compared Clinton’s exoneration vs. David Petraeus’ case in which Trump stated that got Petraeus “in trouble for far less.” Petraeus pleaded guilty to one misdemeanor charge of mishandling classified information. Certainly Clinton’s case is far different from Petraeus’ case. Thinkprogress:
Petraeus knowingly provided highly classified information to an unauthorized person.
Petraeus gave Paula Broadwell, his mistress and biographer, his notebooks after telling her they contained “highly classified” information. This conversation was captured on tape by Broadwell and included in the government’s statement of facts:
A few days later he sent Broadwell an email agreeing to provide her the “black books.” The books contained “the identities of covert officers, war strategy, intelligence capabilities, diplomatic discussions, and quotes and deliberative discussions from National Security Council meetings, including discussions with the president of the United States.”
In contrast, Comey concluded that in Clinton’s case there was no “clearly intentional and willfulmishandling of classified information.”
Comey said the way Clinton handled the email was “careless” but that falls well below the legal standard for prosecution under the statute used to convict Petraeus.
Petraeus allegedly lied to the FBI.
In an interview with the FBI, Petraeus allegedly claimed that he only started his relationship with Broadwell after he left the military and never provided her with classified information.
He ultimately was not charged with lying to the FBI, but such a charge could have carried years and jail and likely influenced his decision to plead guilty to a misdemeanor.
Comey, in contrast, made clear he found no evidence that Clinton was attempting to impede the investigation. He found “no intentional misconduct” in the handling of the emails or “an effort to conceal them.”