Anyone either watching or reading FBI Director James Comey's press conference announcing that the Bureau has submitted a "no prosectution" recommendation to the Department of Justice concerning Hillary Clinton's private email server should have been left with a sinking feeling in their stomach. Comey spent the better part of the conference itemizing all of the violations of felony provisions of Federal Codes that Hillary was guilty of. He freely admitted that "110 emails in 52 email chains have been determined by the owning agency to contain classified information at the time they were sent or received." He further itemized: "Eight of those chains contained information that was Top Secret at the time they were sent; 36 chains contained Secret information at the time; and eight contained Confidential information." Comey noted that, while the FBI did not uncover "clear evidence" of intentional violation of the laws "governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information."
Specifically, Comey reported that "seven email 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 emails about those matters and receiving emails from others about the same matters." He even concluded that "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… None of these emails should have been on any kind of unclassified system, but their presence is especially concerning because all of these emails 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."
Comey went on to report that Secretary Clinton exclusively used her private server when she was traveling, including when she was traveling in countries with a history of hacking into sensitive government data.
At the end of the day, Comey fell back on a simple excuse for the "no prosecution" recommendation: Hillary Clinton was not behaving like a classic spy out to do damage to the national security of the United States on behalf of a foreign power or for personal motives. Just because the FBI attorneys could not find case precedent for Secretary Clinton's behavior is not the same thing as saying she is not worthy of felony prosecution. Indeed, people with far more background in national security law than I can claim, have made clear to me that the mishandling of Top Secret/Special Access Program material is a serious felony–slam dunk, no ifs ands or buts.
Comey has done what FBI Directors have done far too often in the past: He has passed the buck to the Department of Justice. The FBI recommendation of "no prosecution" is not the final word–and Director Comey made that point on several occasions throughout his uncomfortable appearance before the press. It is the Justice Department that makes that call, so in a technical sense, Hillary Clinton is still not out of the woods.
Just prior to the Comey announcement and the scandalous encounter at Phoenix Airport between Attorney General Loretta Lynch and former President Bill Clinton, some news organizations reported that Hillary Clinton had also been suspected of sharing classified information with her son-in-law Mark Mezvinsky, a hedge fund manager married to Chelsea Clinton. I was told that some of that information may have constituted insider trading, because she was sharing information about the ongoing Greek debt negotiations with the Troika. Some of that information may have come, according to one of my sources, from communication intercepts of German government officials.
That issue never came up in Comey's presentation of the FBI's effort at "transparency."
This story is not over, by a long shot. In addition to the predictable Republican Party outcries, serious students of national security law will be digging deeper into the case, based on Director Comey's public pronouncements alone. The 2016 Presidential campaign, already one for the record books, has just taken on a new dimension altogether. Stay tuned…