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Sorry Hillary-Haters, ‘Extreme Carelessness’ is Not Enough to Indict Clinton


Screen-Shot-2016-07-05-at-11.04.58-AM-300x180FBI Director James Comey’s public statement today can basically be summed up as follows: “We really looked hard, and we can’t find any good reason to prosecute Hillary Clinton. However, when it comes to classified information, the State Department was a hot mess under her watch.”

The FBI’s no-prosecute recommendation doesn’t come as a surprise to anyone who has taken an objective look at the allegations against Secretary Clinton. The two statutes she’s been publicly accused of violating require a level of intent that the FBI’s investigation simply did not support. To recommend such a prosecution would have required a finding of some credible evidence that Hillary Clinton intentionally mishandled classified information, or that she did so with a level of gross negligence sufficient to establish criminality.

Teams of FBI agents spent thousands of hours reading 30,000 emails and found no evidence that Hillary Clinton purposely broke any laws relating to classified information. In this political climate, I’m sure there was an FBI agent or two that would have loved to distinguish his or her career by finding some sort of smoking gun with HRC’s name on it. And yet, nothing.

It does, however, sound like the cybersecurity over at the Department of State was handled with about the same level of precision as PTA moms trying to figure out Snapchat.  Comey remarked, “While not the focus of our investigation, we also developed evidence that the security culture of the State Department in general, and with respect to use of unclassified e-mail systems in particular, was generally lacking in the kind of care for classified information found elsewhere in the government.”

When that word “culture” pops up, my legal ears perk up, awaiting the inevitable passing deferral of responsibility that always follows it. It wasn’t one person’s fault – it was a culture of negligence. Hillary’s political foes will be quick to point out that the State Department buck should stop definitively with Madam Secretary; as the head of the department, a systemic lack of security should be blamed on her. Reasonable people could certainly debate the level of responsibility a cabinet member should bear for such a failure. Still, such a theory of liability would never lead to a reasonable conclusion that Secretary Clinton should be prosecuted under the Espionage Act.  While Hillary-haters will undoubtedly fixate on the finding that her department was “extremely careless” with the handling of sensitive information, the bottom line is that such a failure just isn’t criminal.

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’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 every person who has done something wrong; they are expected to exercise prosecutorial discretion to make informed choices about which cases make 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.

What made me giggle a little about Director Comey’s statement was the thread woven through its entirety; with every statement of how hard the FBI worked, how many emails it read, and how complex the whole process was, was sandwiched an ass-covering theme implying that Comey wasn’t really going to bat for Secretary Clinton. Comey’s puzzle analogy drove the point home: the FBI was charged with an absurdly detailed task, and while the agency handled it with the utmost professionalism, it wouldn’t be impossible for some new information to arise at a later date.

Comey’s carved out a nice safety valve for the FBI:

“It is also likely that there are other work-related e-mails that they did not produce to State and that we did not find elsewhere, and that are now gone because they deleted all e-mails they did not return to State, and the lawyers cleaned their devices in such a way as to preclude complete forensic recovery.”

The implicit meaning: “we looked and found nothing. But if anything ever comes up in the future, don’t blame us, because no one could possibly have done it better.” But as of now, sorry Hillary-haters, there was just not enough to indict.







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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos