Law Enforcement

No charges in Clinton email case

Photo credit: a katz / 

FBI Director Jim Comey criticized Hillary Clinton and her team for "extremely careless" handling of classified information, but decline to recommend charges. 

The presumptive Democratic presidential nominee won't be facing criminal charges arising from her use of a home-based e-mail server to conduct government business. But FBI Director James Comey, in an unusual public declaration, said that "there is evidence" that former secretary of that Hillary Clinton and her top colleagues at the State Department "were extremely careless in their handling of very sensitive, highly classified information."

"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 in a July 5 press conference.

The FBI was examining whether Clinton had violated federal laws governing the mishandling of classified information when she led the State Department from 2009 to 2013. Comey said they found 110 emails in 52 threads that contained information that was classified at the time the emails were sent and received. Of those, eight chains had top secret information, 36 had information tagged as secret and eight contained confidential information. Additionally, an estimated 2,000 emails were retroactively classified in the course of the various agency reviews.

Comey said that prosecutions in such cases were typically made where there was evidence of intentional mishandling of classified information, large amounts of material being exposed, efforts to obstruct justice or evidence of disloyalty to the United States. Those factors, he said, were not in evidence in the Clinton case.

"To be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences. To the contrary, those individuals are often subject to security or administrative sanctions. But that is not what we are deciding now," Comey said.

Despite these strong words and the characterization of Clinton and her team as "extremely careless," the decision not to recommend charges rankled Clinton's political opponents.

"While I respect the professionals at the FBI, this announcement defies explanation," House Speaker Paul Ryan said in a statement. "No one should be above the law."

Investigators also probed whether the Clinton email system was hacked. The FBI did not find direct evidence on that score; Comey noted that "given the nature of the system and of the actors potentially involved, we assess that we would be unlikely to see such direct evidence." But he did assert that "hostile actors gained access to the private commercial e-mail accounts of people with whom Secretary Clinton was in regular contact from her personal account," and that she used her account to send email while on travel, including in "the territory of sophisticated adversaries." Comey said it is "possible that hostile actors gained access to Secretary Clinton's personal email account."

The investigation 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," Comey said.

State Department systems have been the frequent target of hacking attempts. State's unclassified email system was breached in the fall of 2014.

The investigation did not address whether Clinton's practices adhered to federal records laws and policies, or policies specific to the State Department. A critical inspector general report sent to Congress on May 25 concluded that Clinton did not comply with department policies.

That angle is being probed further in a separate Freedom of Information Act lawsuit brought by the conservative activist group Judicial Watch. Patrick Kennedy, State's undersecretary for management, was deposed in this case on June 29. Kennedy, who is nominally State's "senior agency official" for records management and the top liaison to the National Archives and Records Administration, did not know if Clinton had been authorized to use a private email account to conduct agency business, according to a transcript released by Judicial Watch.

Federal departments are required to designate a senior agency official under an August 2012 White House directive to be responsible for records management compliance. The idea is to task someone senior enough – at the assistant secretary level or higher – to be able to get the attention of an agency's topmost officials when it comes to records training and compliance. (Agencies were required to have these officials in place by November 2012 – at which point Clinton only had a few weeks left to serve.)

Kennedy said that approval might have come from the CIO, or the Bureau of Diplomatic Security. "Most likely a combination of the two of them," he said. As undersecretary for management, Kennedy supervises the CIO and the Bureau of Diplomatic Security. Kennedy declined to say whether Clinton's email practices conflicted with department policies. He also testified that he was never specifically instructed not to disclose the existence of the Clinton email system to NARA.

At the same time, Kennedy said it would have been the responsibility of IT supervisors inside the executive secretariat -- the inner circle at State -- to inform Clinton that it was not considered agency best practice to use personal email. But there was no mention in the testimony of an individual or job function who would have that specific responsibility of instructing Clinton about records policy.

From a records management point of view, Comey said it was "likely" Clinton's legal team did not produce some work-related emails to the State Department in response to a department request for correspondence. FBI investigators had access to that group of 30,000 emails and have additionally been able to piece together other emails from Clinton's decommissioned equipment, from emails sent to government accounts and individuals likely to correspond with a secretary of state.

Comey said the FBI "found no evidence that any of the additional work-related e-mails were intentionally deleted in an effort to conceal them," but also noted that some emails are likely gone for good. Clinton's legal team "cleaned their devices in such a way as to preclude complete forensic recovery," he said.

About the Author

Adam Mazmanian is executive editor of FCW.

Before joining the editing team, Mazmanian was an FCW staff writer covering Congress, government-wide technology policy and the Department of Veterans Affairs. Prior to joining FCW, Mazmanian was technology correspondent for National Journal and served in a variety of editorial roles at B2B news service SmartBrief. Mazmanian has contributed reviews and articles to the Washington Post, the Washington City Paper, Newsday, New York Press, Architect Magazine and other publications.

Click here for previous articles by Mazmanian. Connect with him on Twitter at @thisismaz.


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