Speaking on Tuesday, James Comey, the director of the Federal Bureau of Investigation, publicly delivered the Bureau’s recommendation to the U.S. Department of Justice over Hillary Clinton’s use of a personal email server (you can catch the video of Comey’s remarks here). Comey, after outlining in some detail Clinton’s use of an insecure personal email server, both while inside the United States and traveling abroad, concluded that “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.”
That was the good news for Hillary Clinton. With Comey’s announcement, the email scandal — along with the Benghazi fracas — will be behind her as she heads into the Democratic National Convention to seal her in her nomination. Clinton will be poised to succeed a Democratic president, running a well-oiled campaign in one of the most unusual elections years in recent history. Her opponent, Donald Trump, has called publicly for her to be jailed over the email scandal. (A Trump fundraising email last week even called on voters to “indict Hillary Clinton and find her guilty of all charges.”)
Comey took great pains at the conclusion of his prepared remarks to underline that the Bureau’s investigation was apolitical and based purely on facts, but, realistically, the FBI’s reluctance to recommend prosecution has stirred up a political hornets nest. The Trump campaign’s antics highlight the extent to which the conversation around Clinton’s email server has grown increasingly polarized. Comey’s remarks on Tuesday, however, provided the clearest picture of precisely the sort of professional malpractice and “extremely careless” handling practiced by the former secretary of state (and, likely next president of the United States).
The facts, as presented by Comey, aren’t particularly reassuring. In fact, listening to his remarks, everything that preceded his recommendation to the Department of Justice made Clinton’s judgment appear quite shortsighted. Comey was careful to highlight that Clinton’s actions shouldn’t be read through the lens of bad faith; indeed, one of the reasons he advised against prosecution is because “intentional misconduct” and “indications of disloyalty to the United States” were not apparent in the investigation. This is particularly important given the increasingly polarized, bad faith criticisms of Clinton from partisan opponents and reluctant supporters alike — Hillary Clinton was not actively working to undermine the interests of the United States.
Comey paints a worrying picture, nonetheless. The core issue — that Clinton sent and received classified information through her personal email server — was reaffirmed and spelled out clearly by the director. “None of these e-mails should have been on any kind of unclassified system, but their presence is especially concerning because all of these e-mails were housed on unclassified personal servers not even supported by full-time security staff,” Comey noted. Clinton “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,” including probably China and Russia. Comey judged that “it is possible that hostile actors gained access to Secretary Clinton’s personal e-mail account.”
With the facts laid out, demonstrating poor judgment and irresponsible behavior on the part of Clinton and her staff, three issues jump out as the broader takeaways here. First is the issue of whether Clinton (like General David Petraeus before her) received some special consideration or treatment from law enforcement because of her status and past service in the Obama administration. Comey concluded by noting the following:
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 is not what we are deciding now.
Read charitably, it appears that Comey is highlighting that the mishandling of classified electronic information across the government is sanctioned with a revocation of clearance or “administrative” punishment (i.e., firing, demotion, etc.). Comey does not suggest that criminal charges would be normally recommended “in similar circumstances.” Still, the addition of this paragraph leaves the impression that something about it being Clinton at the center of this case has resulted in exceptional consideration. Even without political interference from outside the Bureau, Comey makes it clear that were this a case of a more junior State Department employee mishandling classified information (say, even, an ambassador), the consequences would likely have been different.
The second issue is the standards for what should and should not be classified information within the labyrinthine information networks of the United States government. This is a more challenging question, but the Clinton email saga (and other non-whistleblower classified information snafus) suggests that classification requirements may need some revisiting. Sophisticated and powerful states like the United States, no doubt, have an interest in sequestering sensitive information from the public domain, but excessive state secrecy can unnecessarily encumber the national security bureaucracy while also possibly adversely affecting democratic oversight and scrutiny of foreign policy decision-making.
Finally, assuming that standards for classification don’t change, the U.S. government may want to think more about preventing the sort of human error that seems to be a central feature of the Clinton email saga. This is a broad policy recommendation and I lack the scope to flesh it out more fully here, but it remains unacceptable that a secretary of state, surrounded by a coterie of staff and advisers, could make it through a four-year term without her email use being stress-tested for possible security lapses. People appointed to important positions in government will strive to bend the rules, seeking convenience and agency. Clinton did, got away with it, and shouldn’t have. That probably merits a broader consideration of how preventing human error by important people can be feasible for government. (It’s certainly desirable.)
Bernie Sanders, Clinton’s primary challenger, may have been on to something when he remarked that the “American people are sick and tired of hearing about your damn emails.” I share Sanders’ frustration with the spectacle and polarization surrounding this scandal. With both the Benghazi and email scandals behind her, Clinton will be able to steam forward with her campaign, but Comey’s remarks on Tuesday should spur broader introspection across the U.S. government. If Clinton does win in November, she would do well to ensure that no one on her cabinet can get away with what she managed.