FBI Director James Comey gave a press conference on Tuesday, July 5th, discussing in surprising detail the three main aspects of the investigation: What they did (a lot). What they found (she broke the law and jeopardized national security). What they recommend (nothing).
The following day, Attorney General Loretta Lynch made it official by accepting the recommendation and closing the case. The Clinton email-gate saga has finally ended but its conclusion has raised more questions than answers, at least it has for me.
Below is a recreation of some thoughts other Average Americans may have shared while listening to James Comey's remarks, enjoy!
What They Did:
After a brief introduction, Comey states the FBI was looking into
"whether classified information was improperly stored or transmitted on [Clinton's] personal system in violation of the 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."
Average American:
Brilliant! If any of the leaked emails over the past few months have any truth to them, we can pretty much be assured that she broke both those statues, if not intentionally, then through negligence, which is still a violation...It says it right in the statute! With the information that must have been gained for Pagliano to be granted an immunity deal, she's toast!
Then Comey brings up the additional national security concerns and investigation into whether there's "evidence of computer intrusion by nation states or by hostile actors of any kind."
Average American:
Whoa, they're really going to get her on that one! They extradited Guccifer, the Romanian hacker, months ago. He claimed to have gained access to Clinton's emails by hacking a former Clinton White House aide's personal account, saying "it was easy". Between him and Putin claiming to be in possession of her emails, there's no way she skates on that!
Comey goes on to explain one of the exhaustive methods the FBI used to retrieve and piece together fragments of some of Clinton's emails from decommissioned servers. He also talks about the process of referring any emails found possibly containing classified information to the "owning agency" to determine whether or not that information was classified when it was sent or received, or if it should be "up-classified" retroactively.
Average American:
Ok, ok, you checked and double-checked and made sure to get the facts straight, thank you Mr. Comey. I'm concerned but not really surprised that you couldn't recover all of the emails from the many private servers Hillary used during her SoS tenure, but let's get on with what you found!
What They Found:
Of the approximately 30,000 emails Hillary Clinton turned over to State in 2014, the FBI found
"110 emails, in 52 email 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; eight contained 'Confidential' information at the time."
Average American:
This already shows mishandling of classified information. 44 email chains were "Top Secret" or "Secret" at the time they were sent, meaning she, being the Secretary of State, should have been competent enough to know better than to be sending classified information over unsecured, personal, in-home servers. #HillarySoQualified
"Separate from those, about 2,000 additional emails were up-classified to make them confidential...FBI also discovered several thousands of work-related emails" that were not turned into State in 2014. Comey goes on to say the FBI found no evidence that those work-related emails had been "intentionally deleted", positing that, like many emails users, Sec. Clinton would periodically delete emails and/or purge emails when devices were changed. Or emails may have been deleted as "personal", again unintentionally, by her lawyers who only used the header information as search terms to determine what was to be deleted and did not view their contents, as the FBI did.
Average American:
Is anyone else seeing the pattern that he's stressing intent? Didn't he just quote the statute to say "mishandling of classified information either intentionally or in a grossly negligent way"? Maybe it's just me, but it seems the statute is worded in exactly such a way as to make clear the mishandling of classified information itself is the crime, regardless of intent to do so. Apart from that, up-classified emails are a grey-area, the real focus should be on the fact that there's no true way to know how many emails were deleted because there's no record!
"But because she was not using a government account, or even a commercial account like Gmail, there is no archiving at all of her emails."
Average American:
LOL! Exactly! Once they were deleted off her private server the only way to retrieve them would be 1. through the emails of those she corresponded with which may be difficult or near impossible if that contact is in a foreign government, or 2. to sift through the decommissioned servers for fragments of data, both of which the FBI did and they still don't know if they found all or even most of the deleted emails.
Comey goes on to say that the FBI has done many interviews and a lot of work has been put into the different aspects of this investigation, ending with, "That's what we've done, now let me tell you what we found."
Average American:
Hang on there, James, weren't you just telling us what you've found? Never mind, if there's more, I can't wait!
"Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information. For example, seven email chains were classified at the 'Top Secret Special Access Program' at the time they were sent and received...There is evidence to support the conclusion that any reasonable person in Secretary Clinton's position, or in the positions of those with whom she was corresponding about those matters, should have known an unclassified system was no place for that conversation."
Average American:
Well, there it is! If Clinton and her colleagues were "extremely careless" in their handling of classified information and there is a reasonable assumption of responsibility for government officials to protect that information (the reason for the statute!), then this is clearly a case of mishandling classified information in a grossly negligent way, the felony charge. What does grossly negligent mean if not extremely careless?
"None of these emails should have been on any 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 agencies and departments in the United States government, or even with a commercial email service like Gmail." Comey then explained that the initial marking of emails as classified or not is irrelevant. "[Email] participants who know or should know that the subject matter is classified, are still obligated to protect it."
Average American:
This shows the depth of the security risk her personal server potentially posed since there was no one there to verify if a breach had occurred and classified information had been compromised. She clearly should have known better. Another mark in the Hillary bad judgement column.
After a scathing indictment of the lack of security for classified information at the State Department, Comey moved on to the subject of national security.
"With respect to potential computer intrusion by hostile actors, we did not find any direct evidence that Secretary Clinton's personal email domain, in its various configurations since 2009, was hacked successfully. But given the nature of the system and 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 email accounts of people with whom Secretary Clinton was in regular contact from her personal account."
Average American:
So you're saying because her server was private with no safeguards or support staff to verify whether or not she was hacked, you therefore have no direct proof that she was hacked? And you know people she was in regular contact with from her personal account were hacked?! Even if her server wasn't "directly" hacked that doesn't mean the classified information in it wasn't accessed. That's exactly what Guccifer did, hacked a proxy server to gain access! Doesn't that still count as "evidence of computer intrusion by a hostile actor"?
"We also assess that Secretary Clinton's personal email domain was both known by a large number of people and readily apparent. 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 hostile actors gained access to Secretary Clinton's personal email account. So, that's what we found."
Average American:
Sounds to me like you found a very likely case that her server was indeed hacked by hostile actors but are prevented from being definitive because there's no direct evidence, precisely because her servers were set up not to leave any records except those they chose not to delete. Is that about right? Why do you need direct evidence of a hack when there is clear indirect evidence, i.e. classified information was accessed from her email through a proxy? AND she was using that personal email "in the territory of sophisticated adversaries" who would more likely than not be actively trying to gain access to it. The phrase "jeopardized national security" never had such apt representation as Hillary Clinton and her Mr. Magoo-like operation at the State Department. Let's just be done with her and recommend indictment already.
What They Recommend:
"Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgement is that no reasonable prosecutor would bring such a case."
Average American:
Wait what?! WTF?!
"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 also consider the context of a person's actions and how similar situations have been handled in the past."
Average American:
There's that "intent" word again...alright, I'm a little pissed but I'll hear you out. You're saying three factors need to be weighed in a decision like this: evidence, context and precedence. This should be good.
"In looking back into 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 involved some combination of 1. clearly intentional and willful mishandling of classified information or 2. vast quantities of information exposed in such a way as to support an inference of intentional misconduct or 3. indications of disloyalty to the United States or 4. efforts to obstruct justice. We do not see those things here."
Average American:
Forget the fact that one of her messages specifically indicated she wanted to protect her personal emails from FOIA requests, number four on the list you just read off, why are you only concerned with the precedence factor and not the evidence of mishandled classified information and national security risks? Why are you repeating the "intent" argument over and over without once arguing the "grossly negligent" angle?! That's part of the statute too!
"To be clear, 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, but that's not what we're deciding now. As a result, although the Department of Justice makes final decisions on matters like this, we are expressing to Justice our view that no charges are appropriate in this case."
Average American:
No shit there would be consequences! Tell it to Chelsea Manning or Edward Snowden or anyone else who has released classified information for the public benefit who've since been branded a traitor and punished to the fullest extent of the law. You not only ignored the evidence of negligence (first factor), but by your own statement you destroy the second factor of your decision-making in this case: context. If anyone else were discovered doing the same as she was there would be consequences meaning that, in a similar context, another individual would be prosecuted, but not her. Since when does not having precedence for charging a blatant violation of a clearly worded federal statute ever prevented a prosecution? There's a first for everything right? You have evidence she mishandled classified information in a grossly negligent way, she and her colleagues destroyed State Department-related communications in the same manner, she jeopardized national security and was probably hacked, either directly or indirectly, all things any other citizen would be punished for, but you recommend NO CHARGES?! WTF FBI?!
One question I do feel was answered by this investigation is whether or not the rule of law in the United States applies equally to all its citizenry, the bedrock principle of our republic. Unequivocally, that answer is NO. Quite plainly outside the law's reach, no one in America is as powerful as the neoliberal mistress, the embodiment of oligarchical privilege: Hillary Clinton the Untouchable Queen. James Comey and the FBI just made that perfectly clear.