Comey: No Case Against Clinton on Emails

Comey: No Case Against Clinton on Emails
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FBI Director James Comey said Tuesday that Hillary Clinton and her aides were “extremely careless” in handling classified emailed information when she was secretary of state, but that “no reasonable prosecutor” would bring a case against her because there was insufficient evidence of intentional misconduct.

“Although there is evidence of potential violation of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case,” he said. “Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of the classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.”

After more than a year of investigation and three days after the FBI interviewed the presumptive Democratic presidential nominee, the bureau forwarded its findings and recommendations to Attorney General Loretta Lynch and to senior Justice Department officials. Lynch and her aides, based on previous statements, are expected to accept the FBI’s findings and close the case.

Coming just hours before President Obama was to endorse Clinton for president at a rally in Charlotte, N.C., the FBI’s announcement was unlikely to settle doubts in the court of public opinion about Clinton’s honesty and judgment. Comey’s announcement, however, will free Clinton to argue she has put the episode behind her three weeks before delegates at the Democratic National Convention in Philadelphia will formally nominate her to lead the party.

Donald Trump, who has relentlessly skewered Clinton over her emails and her record while serving as the country’s top diplomat, lost no time in tweeting his displeasure with the announcement.: “The system is rigged. General Petraeus got in trouble for far less. Very unfair! As usual, bad judgment. FBI director said Crooked Hillary compromised our national security. No charges. Wow! ‪#RiggedSystem

In a statement, House Speaker Paul Ryan said the FBI’s announcement “defies explanation. … [B]ased upon the director's own statement, it appears damage is being done to the rule of law. Declining to prosecute Secretary Clinton for recklessly mishandling and transmitting national security information will set a terrible precedent. The findings of this investigation also make clear that Secretary Clinton misled the American people when she was confronted with her criminal actions.”

Ryan added that “the American people will reject this troubling pattern of dishonesty and poor judgment."

Conversely, the Clinton campaign released a statement saying, "We are 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. We are glad that this matter is now resolved."

Comey’s findings differed slightly from Obama’s early determination, voiced at the outset of what was described as a politically independent probe launched after a referral from the State Department’s inspector general concerning potential violations of law tied to classified materials. In the spring of 2015, the president also said Clinton had been “careless,” but he said she had not damaged U.S. national security. He said the circumstances surrounding her use of a personal email server and decision to communicate outside the State Department system should be kept in “perspective.”

Comey’s assessment, based on evidence gathered by FBI investigators, was harsher than Obama’s earlier appraisal.

“Seven e-mail chains [uncovered by the FBI] concerned matters that were classified at the top secret special access program at the time they were sent and received. Those chains involved Secretary Clinton both sending e-mails about those matters and receiving e-mails about those same matters,” he said. “There is evidence to support a conclusion that any reasonable person in Secretary Clinton's position or in the position of those with whom she was corresponding about the matters should have known that an unclassified system was no place for that conversation.”

The director’s findings contradicted Clinton’s repeated assurances that she did not send or receive any classified information at the time she served in Obama’s Cabinet. The FBI’s digging contradicted her statements that she handed over all her work-related emails through her attorneys when asked to do so by the State Department in 2014. And the FBI director said it was “possible” that hackers or hostile actors accessed Clinton’s email domain, although “no direct evidence” of intrusion, which he said the FBI would be unlikely to see, had been found in the materials dating from the four years Clinton was at the State Department and relied on her personal server.

Comey said without clear evidence of intent, the FBI would not recommend felony or misdemeanor prosecution. “All the cases prosecuted [by FBI in the past] involve some combination of clearly intentional or willful mishandling of classified information or vast quantities of information exposed in such a way to support an inference of intentional misconduct or indications of disloyalty to the United States or an obstruction of justice. But we do not see those things here,” he said.

After the FBI and Justice weighed felony charges against Gen. David Petraeus, he pleaded guilty in 2015 to misdemeanor charges of mishandling classified material, and his mistress and biographer who received the materials, Paula Broadwell, faced no charges.

The FBI’s findings in the Clinton case are unlikely to satisfy congressional investigators and Republican detractors of the administration, who, like Trump, believe the inquiry was “rigged.” It is unclear how the findings will impact the State Department.

Comey did not name Clinton’s former State Department aides or other federal officials with whom she exchanged top secret, secret and confidential information at the time she was secretary, using her personal server.  The FBI read each of 30,000 emails turned over to the State Department, as well as communications recovered by the bureau during its forensic recovery efforts on Clinton’s decommissioned servers. It is unclear whether details about the email habits of other current and former government officials are part of the report sent to the Justice Department Tuesday.

Below is a full transcript of Comey’s remarks:

Good morning. I'm here to give you an update on the FBI's investigation of Secretary Clinton's use of a personal e-mail system during her time as secretary of state. After a tremendous amount of work over the last year, the FBI is completing its investigation and referring the matter to the Department of Justice for a prosecutive decision. What I want to do today is three things; I want to tell you what we did, I want to tell you what we found and I want to tell you what we're recommending to the Department of Justice.

This is going to be an unusual statement in at least a couple ways. First, I'm going to include more detail about our process than I ordinarily would because I think the American people deserve those details in a case of intense public interest. And second, I have not coordinated this statement or reviewed it in any way with the Department of Justice or any other part of the government. They do not know what I am about to say.

But I want to start by thanking the FBI employees who did remarkable work in this case. Once you have a better sense of how much we have done, you will understand why I am so grateful and so proud of their work.

So first, what we have done. This investigation began as a referral from the intelligence community inspector general in connection with Secretary Clinton's use of a personal e-mail server during her time as secretary of state. The referral focused on whether classified information was transmitted on that personal system.

Our investigation looked at whether there is evidence that classified information was improperly stored or transmitted on that personal system in violation of a federal statute that makes it a felony to mishandle classified information either intentionally or in a grossly negligent way, or a second statute, making it a misdemeanor to knowingly remove classified information from appropriate systems or storage facilities.

And consistent with our counterintelligence responsibilities, we have also investigated to determine if there is evidence of computer intrusion by nation-states or by hostile actors of any kind.

Now, I have so far used the singular term e-mail server in describing the referral that began our investigation. It turns out to have been more complicated than that. Secretary Clinton used several different servers and administrators of those server during her four years at the State Department and she also used numerous mobile devices to send and to read e-mail on that personal domain.

As new servers and equipment were employed, older servers were taken out of service, stored and decommissioned in various ways. Piecing all of that back together to gain as full an understanding as possible of the ways in which personal e-mail was used for government work has been a painstaking undertaking, requiring thousands of hours of effort.

For example, when one of Secretary Clinton's servers was decommissioned in 2013, the e-mail software was removed. That didn't remove the e-mail content, but it was like removing the frame from a huge unfinished jigsaw puzzle and then dumping all the pieces on the floor.

The effect was that millions of e-mail fragments ended up in the server's unused or slack space.

We searched through all of it to understand what was there and what parts of the puzzle we could put back together again. FBI investigators also read all of the approximately 30,000 e-mails that Secretary Clinton provided to the State Department in 2014.

Where an e-mail was assessed as possibly containing classified information, the FBI referred that e-mail to any government agency that might be an owner of that information so that agency could make a determination as to whether the e-mail contained classified information at the time it was sent or received, or whether there was reason to classify it now even if the content had not been classified when it was first sent or received. And that's the process sometimes referred to as up-classifying.

From the group of 30,000 e-mails returned to the State Department in 2014, 110 e-mails in 52 e-mail chains have been determined by the owning agency to contain classified information at the time they were sent or received. Eight of those chains contained information that was top secret at the time they were sent; 36 of those chains contained secret information at the time; and eight contained confidential information at the time. That's the lowest level of classification.

Separate from those, about 2,000 additional e-mails were up- classified to make them confidential. Those e-mails had not been classified at the time that they were sent or received. The FBI also discovered several thousand work-related e-mails that were not among the group of 30,000 e-mails returned by Secretary Clinton to State in 2014.

We found those e-mails in a variety of ways. Some had been deleted over the years and we found traces of them on servers or devices that had been connected to the private e-mail domain. Others we found by reviewing the archived government accounts of people who had been government employees at the same time as Secretary Clinton, including high-ranking officials at other agencies, folks with whom a secretary of state might normally correspond. This helped us recover work-related e-mails that were not among the 30,000 that were produced to State. Still others we recovered from that painstaking review of the millions of e-mail fragments dumped into the slack space of the server that was decommissioned in 2013.

With respect to the thousands of e-mails we found that were not among those produced to the State Department, agencies have concluded that three of those were classified at the time they were sent or received; one at the secret level and two at the confidential level. There were no additional top secret e-mails found. And finally, none of those we found have since been up-classified.

I should add here that we found no evidence that any of the additional work-related e-mails were intentionally deleted in an effort to conceal them in some way. Our assessment is that like many e-mail users, Secretary Clinton periodically deleted e-mails or e-mails were purged from her system when devices were changed.

Because she was not using a government account or even a commercial account like Gmail, there was no archiving at all of her e- mails. So it's not surprising that we discovered e-mails that were not on Secretary Clinton's system in 2014 when she produced those 30,000-some e-mails to State.

It could also be that some of the additional work-related e-mails that we recovered were among those deleted as personal by her lawyers when they reviewed and sorted her e-mails for production in late 2014. The lawyers doing the sorting for Secretary Clinton in 2014 did not individually read the content of all of her e-mails as we did for those available to us. Instead, they relied on header information and they used search terms to try to find all work-related e-mails among the reportedly more than 60,000 that were remaining on her system at the end of 2014.

It's highly likely that their search missed some work-related e- mails and that we later found them, for example in the mailboxes of other officials or in the slack space of a server. It's also likely that there are other work-related e-mails that they did not produced to State and that we did not find elsewhere, and that are now gone because they deleted all e-mails they did not produced to State, and the lawyers then cleaned their devices in such a way as to preclude complete forensic recovery.

We have conducted interviews and done technical examination to attempt to understand exactly how that sorting was done by her attorneys. Although we don't have complete visibility because we're not able to fully reconstruct the electronic record of that sorting, we believe our investigation has been sufficient to give us reasonable confidence there was no intentional misconduct in connection with that sorting effort.

And of course, in addition to our technical work, we interviewed many people, from those involved in setting up the personal e-mail system and maintaining the various iterations of Secretary Clinton's server, to staff member with whom she corresponded on e-mail, to those involved in the e-mail production to State and finally Secretary Clinton herself.

Last, we have done extensive work to try to understand what indications there might be of compromise by hostile actors in connection with that personal e-mail server. So that is what we've done.

Now, let me tell you what we found. Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of the classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.

For example, seven e-mail chains concerned matters that were classified at the top secret special access program at the time they were sent and received. Those chains involved Secretary Clinton both sending e-mails about those matters and receiving e-mails about those same matters.

There is evidence to support a conclusion that any reasonable person in Secretary Clinton's position or in the position of those with whom she was corresponding about the matters should have known that an unclassified system was no place for that conversation.

In addition to this highly sensitive information, we also found information that was properly classified as secret by the U.S. intelligence community at the time it was discussed on e-mail. That is excluding any later up classified e-mails.

None of these e-mails should have been on any kind of unclassified system. But their presence is especially concerning because all of the e-mails were housed on unclassified personal servers, not even supported by full-time security staff like those found at agencies and departments of the United States government or even with a commercial e-mail service like Gmail.

I think it's also important to say something about the marking of classified information. Only a very small number of the e-mails here containing classified information bore markings that indicated 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. And while not the focus of our investigation, we also developed evidence that the security culture of the State Department, 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 is found elsewhere in the U.S. government.

With respect to potential computer intrusion by hostile actors, we did not find direct evidence that Secretary Clinton's personal e- mail domain in its various configuration since 2009 was hacked successfully. But given the nature of the system and of the actors potentially involved, we assess we would be unlikely to see such direct evidence.

We do assess 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. We also assess that Secretary Clinton's use of a personal domain was both known by a large number of people and readily apparent.

She also used her personal e-mail extensively while outside of the United States, including sending and receiving work-related e- mails 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 e-mail account.

So that is what we have found. Finally, with respect to our recommendation to the Department of Justice, in our system, the prosecutors makes the decisions about whether charges are appropriate based on evidence that the FBI helps collect.

Although we don't normally make public our recommendations to the prosecutors, we frequently make recommendations and engage in productive conversations with the prosecutor about what decisions may be appropriate, given the evidence.

In this case, given the importance of the matter, I think unusual transparency is in order. Although there is evidence of potential violation of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. Prosecutors necessarily weigh a number of factors before deciding whether to bring charges. There are obvious considerations, like the strength of the evidence, especially regarding intent, responsible decisions, and to also consider the context of a person's actions and how similar situations have been handled in the past.

In looking back at our investigations, into the mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts.

All the cases prosecuted involve some combination of clearly intentional or willful mishandling of classified information or vast quantities of information exposed in such a way to support an inference of intentional misconduct or indications of disloyalty to the United States or an obstruction of justice. But we do not see those things here.

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

As a result, although the Department of Justice makes final decisions on matters like this, we are expressing to the justices our view that no further charges are appropriate in this case.

I know there will be intense public debate in the wake of this recommendation as there was through this investigation. What I can assure the American people is that this investigation was done honestly, confidently, and independently. No outside influences of any kind was brought to bear.

I know there were many opinions from people who were not part of the investigation, including people in government but none of that mattered to us. Opinions are irrelevant, and they were all uninformed by inside interim (ph) investigations, because we did our investigation the right way, only facts matter.

And the FBI found those here in an entirely apolitical and professional way. I couldn't be prouder to be a part of this organization.

Thank you very much.

Alexis Simendinger covers the White House for RealClearPolitics. She can be reached at asimendinger@realclearpolitics.com.  Follow her on Twitter @ASimendinger.

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