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Hillary Clinton: No email indictment, but not off the hook

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Cliff Owen/AP

(Read caption) FBI Director James Comey, at FBI Headquarters in Washington Tuesday, says the agency will not recommend criminal charges in its investigation into Hillary Clinton's use of a private email server while secretary of State.

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Hillary Clinton has avoided prosecution for her use of a private email server while at the State Department. But the FBI investigation into the server and Mrs. Clinton’s handling of classified information may still leave a permanent mark on her public reputation. 

That’s because FBI evidence disproves some of the key statements Clinton has made in her own defense. Most important, the agency found that 110 of Clinton’s emails were marked as “classified” when they were sent or received. Clinton has long said that she never knowingly handled secrets on her private system.

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FBI Director James Comey said Tuesday that his agency would not recommend criminal charges against the former secretary of State. In part, that’s because they did not find “willful mishandling” of large amounts of classified material. However, he spent much of the rest of his surprise morning news conference describing the Clinton team’s “extremely careless” attitude towards email security.

The bottom line: Once again, a Clinton is enmeshed in a situation where the phrase “they should have known better” seems an appropriate description. The email controversy will now join a list of incidents that stretches from Whitewater to Travelgate to Monica Lewinsky, Paula Jones, and big bucks Wall Street speeches.

“FBI director took Clinton to woodshed in extraordinary way: Imagine tension of first Oval Office meeting if she were elected,” tweeted AP investigative team editor Ted Bridis in response to Director Comey’s appearance. 

Comey did say there was no clear evidence that Clinton or her aides intended to violate the law with the private server set-up. Nor was there evidence that she willfully blocked or hampered the FBI’s probe into the matter, the FBI director said.

But Comey’s description of the practical implications of the private system was scathing. He said that any “reasonable person” should have known “that an unclassified system was no place” for the sort of communications in which Clinton engaged.

Yet Clinton used multiple private servers, and multiple email devices during her time as secretary of State. Clinton herself long said that a desire to only carry one device was a motivation for establishing her own server.

Security for the system was far from ironclad. While the FBI found no hard evidence that hackers or foreign intelligence agencies penetrated Clinton’s server or servers, they concluded that the email addresses of some of the people Clinton exchanged messages with had been compromised. Clinton also used her private servers while overseas – including trips to nations that are sophisticated adversaries.

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“Given that combination of factors, we assess it is possible that hostile actors gained access to Secretary Clinton’s personal email account,” said Comey.

If the FBI had recommended Clinton’s indictment, the political uproar would have been immediate and intense. That may have played into the agency’s decisionmaking process.

While Clinton’s conduct may have raised questions, most legal precedents involved cases with an aggravating factor, such as lying to agents or releasing vast quantities of classified material. Absent that, a successful prosecution for mishandling classified information might be difficult to pull off. And in Clinton’s case, the FBI and Justice Department would have to be sure their case was overwhelming.

“You don’t indict a POTUS candidate unless you are 150 percent sure you can win. Period.” tweeted RealClearPolitics senior elections analyst Sean Trende in response to the decision.

Still, many Republicans are angry the FBI didn’t recommend further legal pursuit of Clinton. They note that Comey said Clinton might well be sanctioned or otherwise punished for the use of the server if she were a mid-level bureaucrat instead of a presidential hopeful. 

“I don’t think she was disloyal to the United States. I just think she was more loyal to herself – and she got away with it,” wrote Jonah Goldberg of the right-leaning National Review.

But the email controversy could still weigh Clinton down. While Democrats may portray the FBI’s decision as exoneration, the GOP can use many of the details unearthed by the investigation as ammunition for further anti-Clinton attacks. The legal system is just one court in which the former secretary of State could have been judged on the matter. The courts of politics and history have yet to render their verdicts.