The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
FBI Director James Comey announced the results of the FBI's investigation into Hillary Clinton's handling of classified email on a private server when she was secretary of state. The FBI found evidence of "extreme" carelessness in handling classified materials but found no intent to violate any laws on classified information. Most importantly, the FBI is recommending to the Justice Department that it not bring a criminal prosecution.
From Comey's statement:
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. 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. 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.
Comey's announcement of the FBI's recommendation is unusual. But in this unusual case, I think makes a lot of sense. For the public, the Clinton email investigation is all about who wins the presidency. Criminal charges would make it harder for Clinton to win. That's why people care. Unsurprisingly, presumptive GOP nominee Donald Trump regularly announces that Clinton must be indicted: He recently tweeted that it would be "impossible" for the FBI not to recommend criminal charges. Given that, the legitimacy of any decision in the case will be viewed through the lens of politics.
Comey's announcement takes the path of the least politicalization. Comey is a former career prosecutor who served twice as a political appointee in George W. Bush's Justice Department. He is now serving a non-renewable 10-year term as FBI director that expires in 2023. It's hard to come up with a clear argument for why Comey would be beholden to Clinton or why his recommendation would be politically biased.
It is telling that, at least so far, Trump's expected Twitter attacks on Comey are just generic. "The system is rigged," "bad judgment," etc.
No decision on the Clinton email case will please everyone, of course. But Comey's announcement takes the path of the least amount of politicalization in a uniquely politically charged case.