President Obama appeared at a campaign rally for Hillary Clinton after FBI Director James Comey’s announcement in July. (Chuck Burton / AP)

Editor’s note: The FBI told Congress on Friday that it is reviewing its investigation into Hillary Clinton’s emails. In light of the news, we are reposting this column by Bill Blum, first published July 5. The long-roiling question finally has been answered: Hillary Clinton will not be indicted for using a private email server during her tenure as secretary of state. Period. Full stop. Pause a moment, and let it sink in. FBI Director James Comey delivered the word in a surprise news conference Tuesday morning, exactly three days after Clinton’s 3½-hour interview Saturday at the J. Edgar Hoover Building in Washington, D.C. There was plenty of evidence that the presumptive Democratic presidential nominee and her staff had been “extremely careless” in their handling of classified and sensitive information, Comey said, but not enough to prove they had acted with the criminal intent or willfulness needed to secure a conviction. “No reasonable prosecutor would bring such a case,” he concluded. While the FBI’s evaluation technically is not binding on the Justice Department, any indictment is now clearly off the table. Last week, following her embarrassing and ethically suspect encounter with Bill Clinton on the tarmac at the Phoenix airport, Attorney General Loretta Lynch publicly pledged to follow the bureau’s lead. And the bureau, via Comey, has spoken. Reaction to his announcement has been swift and predictable, with House Speaker Paul Ryan, R-Wis., expressing shock and dismay that the “rule of law” has been “damaged,” and the Clinton campaign voicing relief “that the matter is now resolved.” Taking to Twitter, Clinton’s Republican presidential rival, Donald Trump, blasted Comey’s analysis as further proof that “the system is rigged.” I have been following the Clinton email scandal in this column for several months and have long predicted that she would escape prosecution. Now that the official decision is in, I find myself, regrettably, in agreement with Ryan and Trump. The system is rigged. Like the Wall Street banks that were bailed out after running the nation’s economy off a cliff just a few years ago because they were too big to fail, Clinton and the power elite of which she is an integral part are too big to indict. This isn’t to say that Comey or any of the career prosecutors in the Justice Department assigned to the investigation are in the tank. White-collar crimes are often tangled webs, tedious to investigate and hard to litigate. Clinton’s email machinations are no exception. As Comey noted in his news conference, the email investigation focused on two federal criminal statutes. They are Sections 1924 and 793 of Title 18 of the United States Code. They deal, respectively, with the unauthorized removal and retention of classified material, and the improper gathering, transmission or loss of information relating to the national defense. A conviction of Clinton under the first statute, a misdemeanor, would require proof that she actually knew she was keeping classified information on her server. The second, a felony carrying a potential 10-year prison sentence, would require a showing of either knowledge or gross negligence (essentially, the equivalent of recklessness). The elements of both offenses would have to be established beyond a reasonable doubt, the highest standard of proof in our legal system. In part, Comey explained, the recommendation against prosecution was made because an indictment would have taken investigators into uncharted legal waters. “All the cases prosecuted [under these laws],” he explained, alluding to but not naming former CIA Director David Petraeus and ex-National Security Adviser Sandy Berger, “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 inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.” Reasonable minds, as they say in law school lectures nearly every day across the country, can differ. But is a criminal case against Clinton actually so weak that, to quote Comey again, “no reasonable prosecutor would bring” it? As Comey revealed, Clinton used not one, but “several” email servers at her New York home during her tenure at the State Department from January 2009 to February 2013, “decommissioning” and replacing one after another. More importantly, he also revealed that the servers contained no less than 110 emails that included information that was classified at the time the emails were received and stored. Of these, eight email chains contained information that was “top secret.”
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