The Cable

FBI Recommends No Charges For Clinton in Email Case

FBI chief James Comey blasts Clinton’s “extremely careless” handling of classified material, but finds no evidence she or her aides intentionally broke the law.

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FBI Director James Comey said Tuesday that after an exhaustive investigation into Hillary Clinton’s private email servers, he is recommending that no charges be filed against the presumptive Democratic presidential nominee.

In a briefing at the bureau’s Washington headquarters, Comey delivered the most detailed presentation to date of his agency’s investigation into Clinton’s alleged mishandling of classified information. FBI agents, Comey said, spent thousands of hours combing through Clinton’s email servers, seeking archived and deleted emails, and tracing Clinton’s correspondence with other government officials. They found that the private servers contained classified and even top-secret material.

“Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws concerning the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information,” Comey said.

The FBI’s investigation revealed 110 emails in 52 chains that had classified information at the time they were sent. Of those 52 chains, eight contained top-secret information, 36 contained secret information, and eight contained information marked confidential. There were also a few thousand more emails that had information that was upgraded to “confidential” after Clinton sent or received them.

FBI investigators found no evidence that Clinton or her aides had intentionally mishandled classified information, but said that the secretary of state should have known that an unclassified system was no place for such information to be stored. Comey offered no details on the content of the emails marked top secret.

The FBI recommendation will be a boon to Clinton, who is campaigning for the first time with President Barack Obama. The two rode Air Force One together to Charlotte, N.C., on Tuesday, where they are appearing at a rally.

Stressing that the investigation was free of political interference, Comey said that the FBI’s recommendation on whether to bring charges against Clinton considered similar cases that had been prosecuted. In those cases, prosecutors found that classified information was either intentionally mishandled to cause harm to the United States or was carried out on a massive scale. Clinton’s use of a private email server satisfied neither of those conditions, Comey said.

As Republicans have sought to make Clinton’s email system a prime line of attack against her in this year’s presidential election, Comey went to great lengths to describe the investigation as “apolitical” and “professional.” The former George W. Bush appointee said his decision to recommend that no charges be brought against Clinton had not been shared with any other government agency or official.

Presumptive Republican presidential nominee Donald Trump immediately criticized the decision on Twitter. Comey’s recommendation, he said, was evidence of a rigged system. Trump said the investigation of retired Gen. David Petraeus showed that other officials had received harsher treatment at the hands of the Justice Department for similar behavior.

Clinton spokesman Brian Fallon said the campaign was “pleased that the career officials handling this case have determined that no further action by the department is appropriate.”

“As the secretary has long said, it was a mistake to use her personal email and she would not do it again,” he added. “We are glad that this matter is now resolved.”

As part of a deal with prosecutors, Petraeus pleaded guilty to a misdemeanor charge of mishandling classified information after he supplied his biographer and lover, Paula Broadwell, with notebooks containing top-secret information, including code names for undercover operatives.

The decision to reach a plea agreement with Petraeus reportedly angered rank-and-file FBI agents, who felt that the former commander of U.S. troops in Iraq and Afghanistan had lied to investigators about the matter. Comey said the FBI recommendation on whether to prosecute Clinton considered whether she had attempted to obstruct justice and concluded that she had not done so.

With the FBI’s investigation into Clinton’s email system now closed, the matter will be forwarded to the Justice Department, where prosecutors will decide whether or not to bring charges against Clinton. Given the FBI’s recommendation against doing so, it is highly unlikely that the Justice Department will prosecute Clinton.

However, legal experts said that Clinton’s aides could face obstacles should they seek employment at a federal government job that requires a security clearance. In his remarks, Comey noted that someone who similarly mishandled classified information might be subject to “security or administrative sanctions. But that is not what we are deciding now.”

Some of Clinton’s top advisors at the State Department, such as Huma Abedin and Jake Sullivan, now work for her campaign and are widely expected to win appointments for White House or State Department jobs should Clinton win the presidency.

Mark Zaid, a national security lawyer based in Washington, said their intimate involvement in Clinton’s mishandling of classified information could cause problems for them down the line. “If she wins the presidency and tries to bring these folks back into the administration, they all have to go through the process of getting a clearance,” he told Foreign Policy. “If they haven’t shown to be trustworthy with other agencies’ information at the highest level, that’s a factor. I’ve had clients lose security clearances for doing much less than this.”

While recommending against Clinton’s prosecution, Comey was sharply critical of her security practices, as her server lacked the protection provided by government or commercial email systems. Hackers working on behalf of foreign governments may have hacked Clinton’s email, but investigators found no evidence that such a compromise had occurred, Comey said. The FBI boss cautioned, however, that if skilled hackers had gained access to Clinton’s server, it is unlikely that the bureau would discover evidence of such a breach.

Comey described Clinton’s use of a private email server as a widely known fact and said she sent messages from that system while traveling abroad — including in “the territory of sophisticated adversaries,” a likely reference to China or Russia. Clinton traveled to both countries while serving as secretary of state, and both employ highly skilled hackers who would be motivated to gain access to the inbox of America’s top diplomat.

“We also assess Secretary Clinton’s use of a personal email domain was both known to a large number of people and readily apparent,” Comey said. “She also used her personal email extensively while outside the United States, including sending and receiving work-related emails in the territory of sophisticated adversaries. Given that combination of factors, we assess it is possible that hostile actors gained access to Secretary Clinton’s personal email account.” 

Comey reserved some of his harshest judgments for the State Department, whose security culture, he said, “in general, and with respect to the use of unclassified systems in particular, was generally lacking in the kind of care for classified information that’s found elsewhere in the U.S. government.”

State Department spokesman John Kirby rejected that criticism on Tuesday afternoon, telling reporters “We don’t share the assessment that as an institution … that the State Department has in the past or does today take lightly the issue of sensitive and classified information.” 

At the same time, Kirby would not say if Clinton and her top aides who handled classified information on her private networked maintain their security clearances to this day in wake of the FBI investigation. He did note, though, that Foggy Bottom could still take action against those aides after the Department of Justice makes a decision whether or not to bring charges in the case. “The department will determine the appropriate next steps following a decision by the Department of Justice,” Kirby said.

Photo credit: YURI GRIPAS/AFP/Getty Images

Elias Groll is a staff writer at Foreign Policy covering cyberspace, its conflicts, and controversies. @eliasgroll

John Hudson is a senior reporter at Foreign Policy, where he covers diplomacy and national security issues in Washington. He has reported from several geopolitical hotspots, including Ukraine, Pakistan, Malaysia, China, and Georgia. Prior to joining FP, John covered politics and global affairs for the Atlantic magazine’s news blog, the Atlantic Wire. In 2008, he covered the August war between Russia and Georgia from Tbilisi and the breakaway region of Abkhazia. He has appeared on CNN, MSNBC, BBC, C-SPAN, Fox News radio, Al Jazeera, and other broadcast outlets. He has been with the magazine since 2013. @john_hudson

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