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FBI director says “no reasonable prosecutor” would indict Clinton over emails

Andrew Prokop is a senior politics correspondent at Vox, covering the White House, elections, and political scandals and investigations. He’s worked at Vox since the site’s launch in 2014, and before that, he worked as a research assistant at the New Yorker’s Washington, DC, bureau.

In a statement Tuesday morning, FBI Director James Comey announced that the bureau had completed its investigation into Hillary Clinton’s emails and was recommending to the Justice Department that no charges be filed.

"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.

Comey’s statement was harsh and, at times, damning:

  • He said that 113 emails on Clinton’s servers contained information that was classified at the time.
  • He said Clinton and her colleagues were "extremely careless in their handling of very sensitive, highly classified information."
  • He said it was "possible" that "hostile actors gained access to Secretary Clinton’s personal account" — the FBI didn’t find "direct evidence of this," but it would be unlikely that such direct evidence would exist.

However, despite this carelessness, Comey said, he didn’t believe the offenses here rose to the level of past prosecutions related to classified information.

"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," he said. Past prosecutions, he said, generally involved "clearly intentional and willful mishandling," "vast quantities of materials," or "indications of disloyalty to the United States or efforts to obstruct justice."

"We do not see those things here," he said. So, he continued, "we are expressing to Justice our view that no charges are appropriate in this case."

Comey added that "no outside influence of any kind was brought to bear" on the investigation. "This investigation was done honestly, competently and independently."

What did Hillary Clinton do?

News broke last year that while serving as secretary of state, Clinton used a personal email account hosted on a private server — — for her work-related emails. (In his statement, Comey said there were actually several servers involved at various points.)

There are several reasons this was problematic.

First of all, government officials are supposed to preserve their work-related emails in accordance with federal record-keeping laws and regulations. But Clinton made no contemporaneous effort to do that, and only turned over those emails she deemed to be work-related after she had stepped down (and after State officials started asking where her records were).

Now, it’s not like all of Clinton’s correspondence vanished — whenever Clinton emailed her subordinates on their own government email accounts, those records were preserved from their ends. Plus, Secretary of State Colin Powell also used a personal email account for all his work. Still, the State Department’s inspector general came down pretty hard on Clinton for not appropriately complying with record-keeping policies in a report in May.

But the most legally consequential issue has been the question of whether classified information, which is supposed to only be discussed on secure systems, was mishandled. That has been what the FBI has been investigating for the past year or so.

Some of the emails at issue reportedly related to planned drone strikes in Pakistan

According to a Wall Street Journal report by Adam Entous and Devlin Barrett last month, the FBI probe has focused on a series of "vaguely worded" emails from Clinton aides about planned CIA drone strikes in Pakistan.

At the time — in 2011 and 2012 — State officials had the opportunity to object to certain planned drone strikes. And since the drone program itself is classified, deliberations of this nature should have been, and generally were, done over a secured system.

However, officials did occasionally use their regular email to discuss these matters. For instance, Entous and Barrett wrote, there were certain instances when "decisions about imminent strikes had to be relayed fast" and "US diplomats in Pakistan or Washington didn’t have ready access to a more-secure system, either because it was night or they were traveling."

Since uses of unclassified email to discuss "sensitive but fast-moving events" occasionally took place throughout the government, the Journal’s report had suggested that criminal charges over it were unlikely.

Indeed, Comey chided "the State Department in general" for a culture that lacked "the kind of care for classified information that's found elsewhere in the US government."

Donald Trump has preemptively tried to delegitimize the FBI’s conclusion

Many Republican voters have long hoped that Clinton would face criminal charges over the email matter. Conservative media outlets have long suggested that indictments were sure to be forthcoming, and that the only possible explanation for Clinton not being indicted would be corruption from the Obama Justice Department.

Indeed, as you can see above, Donald Trump has been making this argument explicitly in recent days. And he got a bit of an assist last week, when former President Bill Clinton met with Attorney General Loretta Lynch while both of their planes were at the same airport tarmac. (Lynch later said that taking the meeting was a mistake, and that to avoid the appearance of impropriety, she’d accept whatever recommendation the FBI director made about filing charges in the case.)

Still, it may be difficult to characterize Comey as a partisan hack — he’s a Republican who served as a US attorney and then deputy attorney general for the George W. Bush administration. (In that latter job, he became known for resisting the administration’s efforts to authorize a surveillance program that the Justice Department had concluded was illegal.) And his statement on Clinton was quite harsh.

Overall, though, Democrats generally will be breathing sighs of relief about this outcome. For months, the conventional wisdom in Washington has been that no indictments of Clinton or her aides were forthcoming. However, as long as the FBI investigation was continuing, there was still the possibility of criminal charges that could throw the campaign into chaos. Now, while Clinton certainly has a good deal explaining to do to voters about her emails, she won't have to do it in court.