In a televised oral report on the investigation into former Secretary of State Hillary Clinton’s use of a private e-mail server, F.B.I. Director James B. Comey summed up his department’s findings this way:
While the F.B.I. could find no “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.”
However, Comey added, “…we cannot find a case that would support bringing criminal charges on these facts.”
Donald Trump was quick to tweet:
“The system is rigged.”
The investigation had begun in July, 2015 as a referral by Inspectors General from the Intelligence Community and State Department. The referral memo made clear that the Inspectors General were not suggesting that anyone involved in Clinton’s email setup committed a crime. Rather, they were following their statutory obligation to inform the intelligence community about any potential security breach — namely, that Clinton possibly held classified information on her email server located outside secure government facilities.
Here are 7 key points from the F.B.I’s investigation –
1) “From the group of 30,000 emails returned to the State Department, 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 chains contained Secret information at the time; and eight contained Confidential information, which is the lowest level of classification.”
2) “…we found no evidence that any of the additional work-related e-mails were intentionally deleted in an effort to conceal them.”
3) “…we believe our investigation has been sufficient to give us reasonable confidence there was no intentional misconduct in connection with that sorting effort.”
4) “Only a very small number of the e-mails containing classified information bore markings indicating 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.”
5) “With respect to potential computer intrusion by hostile actors [unfriendly governments or adversaries], we did not find direct evidence that Secretary Clinton’s personal e-mail domain, in its various configurations since 2009, was successfully hacked. But, given the nature of the system and of the actors potentially involved, we assess that 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 e-mail domain was both known by a large number of people and readily apparent. She also used her personal e-mail extensively while outside 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.”
6) “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.”
7) “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. 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.”
Last month (Those E-Mails, Part 2, June 17), I asked four questions:
1) Was Secretary Clinton aware of the rules regarding the proper use of an e-mail account during her tenure as Secretary of State?
Yes. That answer was determined by the State Department’s own Inspector General’s report.
2) Did Clinton knowingly send or receive classified information?
Yes. According to the F.B.I.’s findings, “…110 emails in 52 email chains have been determined …to contain classified information at the time they were sent or received.”
“Clinton has consistently said she didn’t send or receive anything marked classified at the time they were sent,” according to Politifact, “and the approximately 2,000 emails that the State Department classified before their public release were victim to retroactive classification.”
3) Was Clinton’s private server attacked and information compromised?
“We do assess,” Director Comey said, “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.”
4) Did Clinton, or any of her staff, break the law by passing along classified information?
While Clinton did receive and send e-mails that were “classified” at that time, Comey said, “…we cannot find a case that would support bringing criminal charges on these facts.” Clinton would have to demonstrate “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.”
Nonetheless, from an ethical standpoint, Clinton willfully used several private servers in her home throughout her tenure as Secretary of State despite releasing an internal memo telling State Department employees to “avoid conducting official Department business from your personal e-mail accounts.”
Based on the findings of the F.B.I. and Secretary Clinton’s own memo, Clinton lacked the kind of responsibility someone in her position should have demonstrated.
Anticipating criticism from some, Director Comey offered the following at the end of his presentation:
“I know there were many opinions expressed by 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 insight into our investigation, because we did the investigation the right way. Only facts matter, and the FBI found them here in an entirely apolitical and professional way. I couldn’t be prouder to be part of this organization.”
At a Raleigh, North Carolina rally yesterday, Republican presumptive presidential nominee Donald Trump repeated his refrain: “The system is rigged.”
So now, Trump is not only a military expert, (“I know more about #ISIS than the generals do.“); a Kennedy assassination expert, (“[Ted Cruz’s] father was with Lee Harvey Oswald prior to Oswald’s being, you know, shot.”); he’s now a legal expert who knows more than the F.B.I., (“Hillary Clinton has to go to jail.”).
If anyone thinks for a moment that James Comey, a Republican and former deputy U.S. attorney general during the George W. Bush presidency, could be influenced to “rig” the system, they don’t know the F.B.I. director’s track record.
As I wrote last year (Not J. Edgar Hoover, Feb. 18, 2015):
“In a 2007 interview with journalist Bill Moyers, legal advisor to the Department of Defense ‘Jack Goldsmith was selected by the White House to help shape the legal framework for the government’s response to terror.’
“MOYERS: I wanna talk to you about the most amazing scene you ever witnessed. That’s your term for what happened. You actually wound up at the hospital that night when Gonzalez, the White House counsel and the White House chief of staff, Andrew Card, came to the hospital to try to persuade Attorney General John Ashcroft to give his permission to some secret– policy that was about to expire. Why was it the most amazing scene you ever witnessed?
“GOLDSMITH: I was there with Deputy Attorney General and Acting Attorney General Jim Comey. And he had– made a ruling on the basis of my legal advice, which he agreed with. And they [Gonzalez and Card] were there to seek reconsideration from Ashcroft.
“ ‘It was the most amazing scene I’d ever witnessed because, first of all, I couldn’t believe– he was obviously extremely ill. He’d had a serious operation the day before. When we walked into the room, he had lost a lot of weight since I’d seen him last. He looked ashen. He looked terrible. He had the tubes and wires coming out of his body.
“ ‘And it was the most amazing scene because in this what seemed like near-death state to me and they [Gonzalez and Card] came in and made their request, he kind of, in an astonishing way, came to life, sort of lifted himself off the bed a bit, color came into his face. And in an amazingly clear and accurate two-minute speech, he said, “These are the Justice Department’s concerns. Share these concerns. I don’t appreciate you visiting me here. I’m not the attorney general in any event. Jim Comey is.” And then he collapsed back into his bed.’
“FBI Director Robert Mueller supported Ashcroft and Comey’s decision, and both men were prepared to resign if the White House moved forward with a re-certification of the program. The two rescinded their threat after Comey met directly with President Bush, who agreed to the changes in the surveillance program originally proposed.
“While he had the support of Mueller and Ashcroft, Comey faced a moment of principle that remains an example of doing the right thing no matter the personal cost.”
And that, Mr. Trump, is the man you suggest is dishonest.