FBI Director James Comey gave Republicans and Bernie Sanders supporters the bad news today that the agency is not formally recommending charges against Hillary Clinton over her email server. Ian Millhiser explains why charges aren't forthcoming:
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.
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.
Stupid? Sure. Criminal? Nope. And nearly impossible to prove.
But apparently people are worried that this might be worse than the raging orange anti-semite racist Islamophobe the other team is running.
It’s hard to read Comey’s statement as anything other than a wholesale rebuke of the story Clinton and her campaign team have been telling ever since the existence of her private email server came to light in spring 2015. She did send and receive classified emails. The setup did leave her — and the classified information on the server — subject to a possible foreign hack. She and her team did delete emails as personal that contained professional information.
Those are facts, facts delivered by the Justice Department of a Democratic administration. And those facts run absolutely counter to the narrative put forth by the Clinton operation: that this whole thing was a Republican witch-hunt pushed by a bored and adversarial media.
Now for the key question: How much do the FBI findings hurt her campaign?
Clinton did avoid indictment, a ruling that would have effectively ended her campaign or left it so badly weakened that there would have been a major move within Democratic circles to replace her as the nominee.
That said, campaigns aren’t governed by the ultimate legality of what Clinton did or didn’t do. So, while dodging an indictment is a good thing — she isn’t under criminal investigation and remains a candidate — it’s a far different thing from being cleared (or even close to it) in the court of public opinion.
Umm, Hillary Clinton has been triend in the court of public opinion since Whitewater, guys. The notion that large swaths of voters are going to be affected by this narrative is next to zero (unlike an actual indictment.)
So no, barring Loretta Lynch indicting, it's not going to happen, kids.