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Hillary Clinton Isn’t Getting Indicted. Here’s Why.

CREDIT: AP PHOTO/ANDREW HARNIK
CREDIT: AP PHOTO/ANDREW HARNIK

Tuesday morning, FBI Director James Comey announced that his agency’s investigation into Democratic presidential candidate Hillary Clinton’s handling of a private email server while she was Secretary of State has come to a close. He also added that the FBI will recommend against criminal charges for Secretary Clinton, stating that “no reasonable prosecutor” could determine that charges were warranted here. It’s an announcement that will surprise no one who is familiar with the underlying law and ordinary Justice Department practices in a case such as this one.

Nevertheless, in part because calls for a Clinton indictment were amplified by Republicans at the highest levels, and in part because of what Josh Marshall described as the media-industrial complex’s quest for “wingnut page views,” the idea that Clinton may face criminal charges has lingered for months. Here’s what you need to know about why such charges were never a realistic possibility.

Clinton, like her two most recent predecessors Colin Powell and Condoleezza Rice, maintained at least two email accounts: one specifically set up to receive classified information and the other for other communications. Clinton’s non-classified email was hosted on a private server (as opposed to Powell’s non-classified email address, which was an AOL account), while the classified email could only be accessed if Clinton complied with a byzantine array of security rules.

Clinton says that the emails she received at her non-classified address “were not marked classified,” although she acknowledges that “there are disagreements among agencies on what should have been perhaps classified retroactively.” Government officials also confirm that “none of the emails the State Department redacted, or any other emails made public, contained classification markings at the time they were sent.” Although the FBI determined that 110 emails did contain classified information.

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This matters because of a legal concept called mens rea. As a general rule, most crimes require prosecutors to prove that an individual acted with a particular state of mind before they can be convicted of a specific crime. Most federal laws dealing with classified information require someone to “knowingly” violate that law in order to sustain a conviction. Thus, Clinton cannot be charged with transmitting or receiving classified information based on that fact alone. She had to have acted with knowledge that specific information was classified when it was transmitted. There is little, if any, evidence that Clinton possessed this state of mind.

There is, however, one law which does require a mens rea other than knowledge in order to sustain a conviction. Under this provision,

Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer — Shall be fined under this title or imprisoned not more than ten years, or both.

Yet, as ABC News Legal Analyst Dan Abrams explains, several key words in this provision also weigh against charging Clinton. For one thing, he claims that a 1941 Supreme Court decision interprets the phrase “relating to the national defense” to require “’intent or reason to believe that the information to be obtained is to be used to the injury of the United States, or to the advantage of any foreign nation.’ This requires those prosecuted to have acted in bad faith.” That’s a high bar — there’s no apparent evidence that Clinton had reason to believe that her use of a private server would cause information to be obtained that advantaged a foreign nation or that would have caused injury to the United States.

Additionally, the phrase “gross negligence” also requires prosecutors to clear a high bar — “a lack of care that demonstrates reckless disregard for the safety or lives of others, which is so great it appears to be a conscious violation of other people’s rights to safety.”

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Indeed, as Comey noted in his announcement, the FBI could not “find a case that would support bringing criminal charges on these facts” as “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 interference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice.”

“We do not see those things here,” he added.

Setting aside the bare language of the law, there’s also a very important practical reason why officials in Clinton’s position are not typically indicted. The security applied to classified email systems is simply absurd. For this reason, a former CIA general counsel told the Washington Post’s David Ignatius, “’it’s common’ that people end up using unclassified systems to transmit classified information.” “’It’s inevitable, because the classified systems are often cumbersome and lots of people have access to the classified e-mails or cables.’ People who need quick guidance about a sensitive matter often pick up the phone or send a message on an open system. They shouldn’t, but they do.”

Indicting Clinton would require the Justice Department to apply a legal standard that would endanger countless officials throughout the government, and that would make it impossible for many government offices to function effectively.