In declining to seek prosecution of Hillary Clinton, FBI Director James Comey said the former Secretary of State’s handling of classified emails was “extremely careless” – conduct, legal experts said, that falls short of “gross negligence,” a standard for criminal charges under the Espionage Act.
“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,” Comey said in a news conference Tuesday detailing the FBI investigation and his decision.
Several legal experts agreed with Comey’s conclusion that there was no recent precedent for bringing such a case without evidence of willful intent or gross negligence, and they said it would have been difficult to convince a jury to convict Clinton based on the evidence.
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“Extreme carelessness doesn’t necessarily translate into gross negligence,” said Laurie Levenson, a professor of law at Loyola Law School in Los Angeles and former federal prosecutor.
“The only times I have seen these statutes used has been situations in which people knew they were disclosing classified, confidential information, or they could show they didn’t really care,” Levenson said.
Comey said investigators determined that Clinton exchanged 110 emails that contained government secrets and that she and her staff should have known the information was classified.
But unlike other cases prosecuted under the Espionage Act, the FBI has not suggested that Clinton intentionally shared government secrets with people not authorized to see them.
The statute for charging gross negligence under the Espionage Act, written in 1917, requires the information be “removed from its proper place,” a tough legal requirement in the digital age, said Stephen Vladeck, a law professor at University of Texas.
Vladeck said the law is not “well suited for careless discussion of information in unsecured media that doesn’t dispossess the government of that information or direct it right into the hands of a foreign power.”
Previous cases charged under the Espionage Act have shown intent, experts said.
Defense attorney Abbe Lowell said Comey’s decision was “completely consistent” with every case brought for leaking classified government information.
Defendants in other cases include Stephen Kim, Lowell’s client who pleaded guilty to leaking State Department documents to the press, as well as former C.I.A. Director General David Petraeus. He admitted to keeping classified information, which he would also share with his biographer, in his home, while telling the government he had returned all such information.
“The one common denominator of all such cases is that the individual involved intentionally sent material to those not authorized to receive it, like the press, like a foreign government,” Lowell said.
Comey said the FBI “did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information.” But he said it did find “evidence that they were extremely careless in their handling a very sensitive, highly classified information.”
His recommendation, which Attorney General Loretta Lynch previously said she would accept, angered Republicans who said her actions should be punished.
Republican presidential front runner Donald Trump reacted to the news from his Twitter account, saying, “The system is rigged. General Petraeus got in trouble for far less.”
In that case, the FBI recommended a felony charge. But Attorney General Eric Holder pursued a misdemeanor under another part of the law, and Petraeus pleaded guilty. He was sentenced to two years probation in 2015.
The FBI had recordings of Petraeus acknowledging the information in notebooks in his home was highly classified. Petraeus also admitted to lying to the FBI about sharing the information with Paula Broadwell, his biographer and lover.
Steven Aftergood, director of the Federation of American Scientists’ Project on Government Secrecy, said Clinton’s cooperation with FBI investigators also may have helped her avoid charges.
“There was no obstruction of justice, no failure to cooperate truthfully with investigators, no concealment of her activity,” Aftergood said.
Legal precedent suggests that Clinton is unlikely to face a misdemeanor charge for recklessness because recent cases that ended with misdemeanors began as much larger felony charges against individuals who intended to leak information.
In 2010, Thomas Drake, a whistleblower from the National Security Agency who helped expose the government’s warrantless surveillance of Americans, was charged with espionage after the government accused him of bringing five classified documents home. He denied the accusation, and those charges were dropped. Drake pleaded guilty to one misdemeanor count for exceeding authorized use of a computer.
“Somebody needs to ask Comey about my case,” Drake, who now works at an Apple store in Maryland, wrote in an email late Tuesday.
Former president Bill Clinton’s national security adviser pleaded guilty in 2005 to smuggling classified documents out of the National Archives by stuffing them under his clothes. He was fined $50,000 and sentenced to two years of probation.