This Part Of The Comey Presser ‘Will Make For A Lot Of Republican Talking Points’

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Kevin Daley Supreme Court correspondent
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FBI Director James Comey announced Tuesday that the FBI would not recommend criminal charges for former Secretary of State Hillary Clinton in connection with her use of an unsecured email server outside of government networks, and for the mishandling of classified information.

Federal law requires the presence of mens rea to pursue a felony criminal case of this nature, meaning Clinton would have to knowingly, willfully, or intentionally mismanage classified information in order to run afoul of the law. The FBI concluded there was no evidence Clinton had done so. (RELATED: FBI Recommends ‘NO CHARGES’ For Hillary Clinton)

Though the Bureau’s decision dramatically decreases the chances Clinton will be charged by the U.S. Department of Justice, Comey took Clinton and her State Department colleagues to task for the cavalier manner in which they trafficked in sensitive information. His damning non-indictment is still damaging to Clinton politically:

“Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.

For example, seven e-mail chains concern matters that were classified at the Top Secret/Special Access Program level when they were sent and received. These chains involved Secretary Clinton both sending e-mails about those matters and receiving e-mails from others about the same matters. There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation. In addition to this highly sensitive information, we also found information that was properly classified as Secret by the U.S. Intelligence Community at the time it was discussed on e-mail (that is, excluding the later “up-classified” e-mails).

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, like those found at Departments and Agencies of the U.S. Government—or even with a commercial service like Gmail.”

In other words, the FBI concluded that Hillary Clinton and her colleagues were “extremely careless” in handling classified material; a commercial gmail account would have been a more responsible option from a security perspective. They should have known better.

At Lawfare, the Brookings Institution’s Benjamin Wittes writes “These are strong words. And this paragraph will make for a lot of Republican talking points over the next few months. In all honesty, Clinton deserves these talking points every time. She should have known better.”

Though the inquiry absolved Clinton of intentionally mishandling state secrets, it could still have recommended charges to the Justice Department on the basis she was “grossly negligent.” The Bureau also could have recommended a lesser misdemeanor charge for the knowing removal of classified information from appropriate systems or storage facilities.

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