FBI director James Comey’s argument on Tuesday for declining to recommend criminal charges in the Hillary Clinton email server investigation was “absolutely bizarre,” according to former U.S. prosecutors.
Comey announced at a press conference on Tuesday that the he would not recommend criminal charges to the Department of Justice in the case, despite finding that Clinton and her aides were “extremely careless” by sending hundreds of classified messages over multiple, unsecured private email servers.
While investigators concluded that information was improperly transmitted, Comey said he would not recommend criminal charges because “no reasonable prosecutor” would take up the case.
Joseph diGenova, former U.S. attorney for the District of Columbia, called Comey’s statements an “absurdity in light of the conclusions that [the FBI] reached.”
“How can he spend 15 minutes describing a series of crimes being committed … and then he says no reasonable prosecutor [would prosecute]?” said diGenova. “That is ridiculous. I consider myself a reasonable prosecutor and I would have brought charges based on the facts that he accumulated.”
According to Comey, FBI investigators found that over 110 emails sent or received over Clinton’s private email system contained classified information at the time they were sent. They also found that Clinton had set up multiple private unsecured servers—as opposed to the single server that was previously reported—and that it was “possible that hostile actors gained access to Secretary Clinton’s personal email account.”
Comey said investigators “did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information,” but they did find evidence “that [Clinton and her aides] were extremely careless in their handling of very sensitive, highly classified information.”
“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,” said Comey.
Matthew Whitaker, a former U.S. attorney for Iowa who now runs the Foundation for Accountability and Civic Trust, a watchdog group that has been critical of Clinton, said Comey’s argument against a criminal referral was highly unusual for a law enforcement official.
“He said no ‘reasonable prosecutor’ would file a case. That’s where he steps out of his role as FBI director,” said Whitaker. “It’s not his decision to make at all.”
“[FBI investigators] essentially just tell you here’s the facts and here’s the law, and the law has or hasn’t been violated—it’s a strange situation,” added Whitaker. “And I’ve never seen an FBI director or agent or anybody stand up in front of the media and go through their analysis of the case and the facts. The whole thing is unprecedented.”
DiGenova said the finding that Clinton and her aides were “extremely careless” in handling the classified information would meet the standard of “gross negligence” needed to prosecute.
“The standard under the statute is gross negligence. [Comey] described the conduct as ‘extremely careless,’” said diGenova. “To me that is worse. His conclusion that no reasonable prosecutor would bring charges is completely inconsistent with his recitation of the facts and the law.”
Comey took no questions after the press conference, which came on the heels of a private meeting between Bill Clinton and Attorney General Loretta Lynch in Arizona last week. Although Lynch said they mainly discussed personal matters, the meeting was widely criticized due to the ongoing FBI investigation.
DiGenova said Comey’s decision set a damaging precedent for efforts to enforce classified information laws. He added that the press conference on Tuesday failed to put the email issue to rest and only raises news questions.
“As a result of what he did today this will never die,” said diGenova. “The public will have more to say about this even if the Bureau and the Justice Department and the president and Mrs. Clinton don’t. This is not going to go away especially after this bizarre performance.”