Editor’s Note: Douglas Cox is an associate professor at the City University of New York School of Law. The views expressed are his own.
It's not a criminal indictment, but the FBI effectively issued a public indictment in Clinton email case, writes Douglas Cox
The last remnants of Clinton's defense of her actions was demolished by FBI director, Cox says
While headlines about FBI Director James Comey’s unprecedented announcement Tuesday largely focus on the agency recommending no charges against Hillary Clinton, the director’s statement was a stinging public indictment of Clinton, her aides, and even her attorneys. While many had already concluded that charges were unlikely, the FBI investigation revealed new facts that illustrate that the possibility of criminal charges was closer than the public knew.
Indeed, anyone who would conclude that the result is a “victory” for Clinton only heard half the FBI statement. In the same breath that Comey stated the FBI recommended no charges, he noted that the FBI found “evidence of potential violations of the statutes regarding the handling of classified information.”
And while noting that the investigation did not find “clear evidence” that “Clinton or her colleagues intended to violate laws governing the handling of classified information,” the FBI nevertheless found “evidence that they were extremely careless in their handling of very sensitive, highly classified information” and assessed it “possible that hostile actors gained access to Secretary Clinton’s personal e-mail account.”
Finally, the FBI concluded that Clinton and her lawyers failed to provide the State Department with all work-related emails and likely destroyed federal records.
The last remnants of Clinton’s public defense
When the controversy over her private email server began, Clinton issued broad and unequivocal assertions that the emails contained on her private server contained no classified information and that she had handed over all federal records to the State Department. While the release of information and emails had slowly whittled away at this defense, Tuesday’s statement from the FBI director destroyed its remaining vestiges.
Despite Clinton’s repeated references to the FBI investigation as simply a “security review,” for example, Comey’s statement makes it clear that this was a criminal investigation and that Clinton was one of the targets.
While Clinton had already abandoned her broad assertions that her emails contained no classified information, Clinton had continued to maintain that at least nothing she sent or received was “marked” as classified. Yet Comey confirmed that even this was wrong, noting that there were emails that “bore markings indicating the presence of classified information,” although there were only a “very small number” of them.
Comey further undercut Clinton’s defense by stressing that Clinton had an obligation to protect even unmarked classified information and that a reasonable person in Clinton’s situation should have known information in her emails was classified.
In all, 110 emails in 52 email chains were determined to have included classified information at the time they were sent or received. They were not simply retroactively classified, as Clinton had claimed. Among these, eight chains of email contained “Top Secret” information, a classification the law limits to information whose unauthorized disclosure could be expected to cause “exceptionally grave damage to the national security.”
The FBI also confirmed that Clinton failed to hand over “several thousand” work-related emails to the State Department and assessed it “likely” that there were others “that are now gone” because Clinton and her attorneys “deleted all e-mails they did not return to State, and the lawyers cleaned their devices in such a way as to preclude complete forensic discovery.”
While the FBI did not find evidence that Clinton “intentionally deleted” such emails “in an effort to conceal them” and found no “intentional misconduct” by her attorneys, Comey revealed that Clinton’s attorneys failed to read beyond the headers of Clinton’s emails when they were purportedly deciding which emails constituted federal records and the FBI was unable to reconstruct the “electronic record” of this process.
The FBI’s findings thus expand upon the conclusion of the Office of Inspector General’s recent report that concluded Clinton violated State Department policies and record-keeping laws first by sequestering federal records in private custody and then turning over an “incomplete” set of those records to the State Department.
The FBI’s investigation suggests these violations were even broader and further confirms that Clinton’s actions undermined the State Department’s obligations under the Freedom of Information Act and the federal records laws.
The Clinton email endgame
Clinton’s very brief response that she is “pleased” that “no further action” is “appropriate” and that “this matter is now resolved” might itself be an overstatement, or wishful thinking.
First, as a technical matter, Department of Justice prosecutors, and not the FBI, make the final decision on whether to pursue criminal charges. Given Comey’s public statement that “no reasonable prosecutor” would bring charges, it would be especially difficult, although not impossible, for Department of Justice prosecutors to decide otherwise.
Second, Comey noted that “in similar circumstances, a person who engaged in this activity” could face “security or administrative sanctions.” While the exact status of any security clearance held by Clinton is not known, the FBI’s findings could justify revoking any such security clearance, which could send a powerful, if largely symbolic, message that the rules apply to everyone.
Clinton’s aides, some of whom presumably might plan to be a part of any Clinton administration, could face more concrete problems in future security clearance determinations.
Third, the FBI’s new disclosures are sure to reverberate through various ongoing lawsuits under FOIA. Whether Clinton will be subjected to a formal deposition in these civil cases, as many of her aides have already been, remains an open question and an increasing possibility. An inquiry by the National Archives into Clinton’s alienation of federal records also remains open.
Finally, the issue is sure to continue to be a powerful campaign issue relevant to public perceptions about Clinton’s honesty, questions about prosecutorial decisions within an administration of a President who has already publicly endorsed Clinton’s candidacy, and legitimate questions about whether less senior government employees, members of the military, and whistleblowers have been – or will in the future – be held to the same or different standards.
In the end, while it appears no federal indictment will suddenly alter the presidential race, the FBI has provided rare transparency into a federal investigation, which allows the public to make their own decisions about the extent to which it will affect their vote at the ballot box.