Lots of smart people recognize and discuss in lots of ways the unique and uniquely important role that prosecutors play in the operation of modern US criminal justice systems, and one theme of a lot of recent commentary and analysis is how little information we generally have about how prosecutors make decisions about who and how to prosecute (and who not to prosecute) for various alleged wrongdoing. In particular, it is sometimes said that too often we fail to even know about a decision and the decision-making process of a prosecutor to decline to bring charges after a significant criminal justice investigation.
I provide this context for anyone eager to discuss and debate this high-profile news as reported in this New York Times article headlined "F.B.I. Recommends No Charges Against Hillary Clinton for Use of Personal Email." As source materials for anyone eager to discuss this recommended declination, here is the full text of today's statement by FBI Director James B. Comey on the Investigation of Secretary Hillary Clinton’s Use of a Personal E-Mail System." It includes these key passages:
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....
While not the focus of our investigation, we also developed evidence that the security culture of the State Department in general, and with respect to use of unclassified e-mail systems in particular, was generally lacking in the kind of care for classified information found elsewhere in the government....
In our system, the prosecutors make the decisions about whether charges are appropriate based on evidence the FBI has helped collect. Although we don’t normally make public our recommendations to the prosecutors, we frequently make recommendations and engage in productive conversations with prosecutors about what resolution may be appropriate, given the evidence. In this case, given the importance of the matter, I think unusual transparency is in order.
Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past.
In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted 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.
To be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences. To the contrary, those individuals are often subject to security or administrative sanctions. But that is not what we are deciding now.
As a result, although the Department of Justice makes final decisions on matters like this, we are expressing to Justice our view that no charges are appropriate in this case.