"Our judgment is that no reasonable prosecutor would bring such a case," FBI Director James Comey¹ announced Tuesday morning, bringing an end to Republican hopes that Hillary Clinton would face criminal indictment for mishandling her email account while serving as secretary of state.
"No reasonable prosecutor ...."
That FBI finding isn't, or should not have been, a surprise. Most non-biased legal experts had predicted exactly that outcome long ago, for the same reasons patiently explained by Comey on Tuesday morning. The FBI stressed that it found no intent on the part of Clinton to expose classified information, and intent has been central to every previous prosecution in such cases. Although Comey did not mention it specifically, that includes the case of former CIA Director David Petraeus, who knowingly gave classified information to his mistress/biographer and was forced to plead guilty to a misdemeanor for doing so.
Not surprisingly, the obvious distinction between actively, knowingly handing over classified information and failing to adequately protect it was lost on some.
In addition, Comey said, the FBI found no evidence of intentional deletion by Clinton or her staff to mislead investigators. It found no evidence that anyone had hacked into the Clinton email server to access secret information, although it also could not rule out that possibility. And although agents recovered work-related emails that Clinton's attorneys had not forwarded to the government as required, they also determined that it was "highly likely" that those were innocent mistakes that occurred because the emails themselves had previously been deleted in the normal course of business, and it took the resources of FBI experts to recover them.
In other words, despite the overheated claims of some on the right in recent months, no attempted coverup took place.
However, as Comey also pointed out, 110 of the 30,000 emails involved in the Clinton investigation were found to have contained classified information, contrary to Clinton's previous claims. Eight emails were found to have contained top-secret information. And Comey went on to condemn Clinton's decision to set up her own private email system outside government:
"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.... There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation....Only a very small number of the e-mails containing classified information bore markings indicating the presence of classified information. But even if information is not marked “classified” in an e-mail, participants who know or should know that the subject matter is classified are still obligated to protect it."
That sounds like an entirely fair conclusion. Clinton feared that her personal information and correspondence might be released to the public if she used government servers, and that fear drove her to set up her own email system, which was a serious mistake. But serious mistakes are not criminal mistakes.
¹Jim Comey is a longtime Republican attorney. He has worked as a federal prosecutor in Richmond and New York, was appointed US attorney in New York by President Bush, and was later appointed deputy attorney general by Bush. So he has both legal and political credibility in making this decision.