In the end, James Comey issued a non-legal indictment against Hillary Clinton, accusing her of recklessness in mishandling classified information while concluding that no criminal charges should be brought.
That, of course, unleashed a storm of partisan commentary, even though the FBI director hardly gave her a clean bill of health. And in declining to recommend an indictment, Comey removed the last shred of doubt that the onetime first lady will be the Democratic presidential nominee.
I am going to approach the subject as a former Justice Department reporter who has covered every special prosecutor’s investigation in recent decades—not as a partisan who either believes that Clinton did nothing wrong or that she should already be behind bars.
The key sentence in Comey’s announcement yesterday is that despite the evidence uncovered by the bureau, “our judgment is that no reasonable prosecutor would bring such a case.”
I don’t agree with that. The former federal prosecutor laid out layers of facts that could have supported an indictment. The gross negligence in using her private email to send classified information—in direct contradiction of what the candidate has claimed—could have amounted to one or more criminal charges.
I also believe there was a higher bar with Clinton as the target. That’s not to say that Comey succumbed to political pressure, as he insists he did not. But a decision to indict Clinton would have knocked her out of the presidential race. In that kind of circumstance, a close call goes to the high-profile target.
Much of the reaction turns on whether Comey’s reputation as a straight shooter—he was deputy attorney general in the Bush administration before President Obama tapped him for the FBI—carries sufficient weight. None of us has seen the voluminous evidence compiled by the bureau, culminating in Saturday’s interview of Clinton—days after that spectacularly wrong-headed meeting between her husband and Loretta Lynch.
Donald Trump wasted little time in tweeting: “The system is rigged. General Petraeus got in trouble for far less. Very very unfair! As usual, bad judgment.” Of course, Trump anticipated the outcome by declaring the system rigged last week, and has said that her offenses are such that she shouldn’t even be “allowed” to run.
It’s no accident that Comey front-loaded his remarks with paragraph after paragraph of criticism before announcing that Clinton would not be charged.
Among other things, Comey blew away Clinton’s repeated insistence that she never sent nor received classified information. To wit:
“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 information that they were extremely careless in their handling of very sensitive, highly classified information.” And: “Even if information is not marked ‘classified’ in an email, participants who know or should know that the subject matter is classified are still obligated to protect it.”
In fact, the FBI found 110 emails in 52 separate chains that were classified when they were sent or received. And intent does not matter when it comes to bringing charges.
Comey did say he found no deliberate effort to destroy emails, beyond routine maintenance, but that some of those that were deleted will never be recovered.
And while the bureau uncovered no hard evidence that foreign entities had hacked Clinton’s private server, Comey said it was quite possible, and that the hackers could have covered their tracks.
Clinton’s campaign said it was “pleased” with the outcome and reiterated that using the private server was a mistake—though she spent months denying that after the New York Times broke the story last year.
By branding Clinton “extremely careless,” Comey has handed Trump, the Republicans and other Hillary detractors ample ammunition. Indeed, the RNC called the bureau’s findings “a glaring indictment of Hillary Clinton’s complete lack of judgment, honesty and preparedness to be our next commander-in-chief.”
It is, as I said, an indictment in all but the criminal sense.
As for any punishment, Hillary Clinton will not have to go to court. But she will be tried this fall in the court of public opinion.