In Email Investigation, FBI Makes Political Decision To Not Recommend Charges For Clinton

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In Email Investigation, FBI Makes Political Decision To Not Recommend Charges For Clinton

FBI Director James Comey announces he will not recommend charges for Hillary Clinton's handling of classified information on a private email server. (Photo: AP)

Federal Bureau of Investigation director James Comey announced the outcome of the agency’s investigation into former Secretary of State Hillary Clinton’s mishandling of classified information on her private email server. Though evidence of “potential violations” of statutes related to the handling of classified information was uncovered, the agency concluded “no reasonable prosecutor” would bring a case against Clinton. Zero charges were recommended to Attorney General Loretta Lynch and the Justice Department.

The FBI made a political decision to recommend no charges so Clinton could continue her pursuit of the presidency without having to deal with the prospect of a trial.

Clinton has long claimed she “never received nor sent any material that was marked classified.” The Democratic presidential nominee repeated this assertion on NBC’s “Meet the Press” on July 3. But this statement, made for months, was proven false by Comey’s statement to the press on the investigation.

“Only a very small number of the emails containing classified information bore markings indicating the presence of classified information,” Comey said. “But 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.”

That means if the emails contained information, like details related to CIA drone strikes or an illegal military coup in Honduras, Clinton would have known this was sensitive material.

With regard to the case of U.S. military whistleblower Chelsea Manning, Clinton once said, “I think that in an age where so much information is flying through cyberspace, we all have to be aware of the fact that some information which is sensitive, which does affect the security of individuals and relationships, deserves to be protected and we will continue to take necessary steps to do so.”

Remarkably, Comey said the FBI “developed evidence that the security culture of the State Department in general—and with respect to use of unclassified email systems in particular—was generally lacking in the kind of care for classified information found elsewhere in the government.”

In an era after WikiLeaks published a massive amount of classified information from Manning, that is truly stunning. Yet, it points to how the set of rules instituted to tighten the grip on classified information are for controlling lower-level government officials. High-ranking officials can mostly do as they please, unless they get caught or their flagrant disregard for rules becomes public knowledge.

As the FBI considered, “Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions 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 mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts,” Comey declared. “All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.”

In spite of this decision, Comey indicated there were several email chains, where top secret information or “special access programs” were discussed. He added, “There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation.”

The State Department inspector general’s own report found Clinton broke the rules and circumvented the Freedom of Information Act by trying to place emails outside the reach of federal records laws.

What Comey did not state in his remarks was the fact that the Justice Department has prosecuted these offenses as strict liability offenses. That is, because individuals signed non-disclosure agreements, including Clinton, prosecutors have reasoned that those officials knew, before they mishandled or were “extremely careless” with information, what was permissible conduct. So, whether those officials intended to commit a crime or not, the violation of statutes governing classified information is enough for prosecution.

It is enough for prosecution unless you are Hillary Clinton, and you are running for president and stand to become the First Woman President of the United States—a milestone that will be similar in importance to Barack Obama’s election as the First Black President of the United States.

Faced with the prospect of thwarting a historical achievement, the FBI allowed itself to be influenced by politics and pass on prosecuting Clinton.

Comey indicated there were 110 emails in 52 email chains, which contained classified information. Eight chains were marked “top secret.” Thirty-six chains contained “secret” information. Eight were marked “confidential.”

There were several thousand additional emails that were found, which were not turned over to the State Department but found by the FBI. Three of these work-related emails were classified.

Peculiarly, Comey said 2,000 additional emails were “up-classified” to “make them confidential.” this information “had not been classified at the time the emails were sent.”

“Up-classified” is a made-up term. What Comey means is 2,000 additional emails were retroactively classified. Conveniently, this significantly lowers the number of emails that would have been “classified” when she was head of the State Department and engaged in mishandling of information.

“None of these emails should have been on any kind of unclassified system, but their presence is especially concerning because all of these emails were housed on unclassified personal servers not even supported by full-time security staff, like those found at departments and agencies of the U.S. government—or even with a commercial service like Gmail,” Comey further declared.

Prosecutors have to consider “strength of the evidence, especially regarding intent.” They also must “consider the context of a person’s actions, and how similar situations have been handled in the past.” And Comey insisted, “No reasonable prosecutor” would pursue a case against Clinton.

Given the political pressure to not pursue a prosecution, Comey is probably right.

On “Fox News Sunday” in April, President Obama addressed Clinton’s character and said, “This is somebody who has served her country for four years as secretary of state, and did an outstanding job. And no one has suggested that in some ways, as a consequence of how she’s handled emails, that that detracted from her excellent ability to carry out her duties.”

Such a statement could be highly influential in FBI offices, as well as the offices of prosecutors in the Justice Department.

Days before this announcement and during the same week that Clinton was interviewed by FBI investigators, former President Bill Clinton met with Attorney General Loretta Lynch aboard a private plane in Phoenix. Both claimed they did not talk about the email investigation, however, the meeting was still derided as improper.

Clinton could have been prosecuted for “making classified information available to an unauthorized person,” when she operated her server and used email. She could have been prosecuted for “retaining documents or materials at an unauthorized location.” She could have been prosecuted for causing classified information to be “transmitted to an unauthorized person.” She could have been prosecuted for “losing classified information” or the removal or deletion of public records.

At one point, Comey said, “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.” In other words, she committed offenses, but they are not offenses that rise to a level deserving of prosecution, probably because she’s running for president.

New York Times journalist Eric Lichtblau reported FBI prosecutors were reticent to charge Clinton because former Pentagon chief David Petraeus was only charged with a misdemeanor. That case was also influenced by politics.

Jesselyn Radack, a whistleblower attorney and director of national security and human rights for the Whistleblower and Source Protection Program at Expose Facts, told Shadowproof, “The elephant in the room is rampant over-classification, a system that is so broken we’ve lost track of how much is even out there.”

She previously told Shadowproof, “It’s a two-tiered system of justice for people who have allegedly mishandled classified information. If you are powerful or politically connected, you have nothing to worry about. But if you’re a low-level whistleblower whose made revelations that the government doesn’t want people to know about torture, about secret surveillance, about drones, that makes you fair game for prosecution and prosecution for espionage.”

Someone like National Security Agency whistleblower Thomas Drake was prosecuted zealously for retaining classified information without authorization. There was arguably less evidence in his case, which eventually collapsed but not before Drake’s livelihood was destroyed.

Central Intelligence Agency whistleblower John Kiriakou was prosecuted zealously for confirming the name of an undercover agent with a reporter. He served a 30-month sentence in federal prison. Far more sensitive classified information was compromised by Clinton’s actions.

In fact, if one considers the conclusion that “security culture” was lacking at the State Department, one truly has to wonder what may happen if Clinton is president. To what extent will classified information be floating from high-ranking official to high-ranking official, from her advisers to other advisers, and from handlers to other handlers, traded as a currency between these elite circles in battles for influence in her administration and perhaps even sold to the highest bidder in corporations?

Matthew Miller, a former spokesperson for the Justice Department, complained about Comey’s statement. “Absolutely outrageous presser by Comey. DOJ/FBI is supposed to speak in court. If it won’t make statements in court, it shouldn’t make them.” He cited rules the Justice Department is supposed to follow when making comments on investigations.

But these rules are designed to protect the accused so they can have a fair trial in court. If prosecutors decline to prosecute high-ranking officials, a byproduct will be comments typically considered out-of-bounds to officials.

Effectively, the Clinton case shows how an elite politician running for the highest office in the land can disarm prosecutors simply by being on the cusp of a political party’s nomination. It raises serious questions about how laws against the mishandling of classified information are applied, and it begs for pardons to be issued to any lower-level government officials or military officers, who may have engaged in far less significant misconduct than Clinton but were punished.

Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, Unauthorized Disclosure. Follow him on Twitter: @kgosztola

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