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 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:
FBI director said Crooked Hillary compromised our national security. No charges. Wow!
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