Finding No “Intentional Misconduct,” FBI Announces They Will Not Recommend Criminal Charges In Clinton Email Probe

FBI Director James Comey Recommends No Charges Against Clinton. FBI Director James Comey announced on July 5 that he would not refer criminal charges to the Department of Justice relating to the investigation into Hillary Clinton’s use of a private email server while she served as secretary of state, saying that “no charges are appropriate in this case.” Comey said the investigation “was done competently, honestly, and independently,” and that “No outside influence of any kind was brought to bear.” The director added that although the secretary may have been “extremely careless,” the FBI determined it could not recommend a charge of a “felony to mishandle classified information either intentionally or in a grossly negligent way.” According to Comey, “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.” [Statement by FBI Director James B. Comey on the Investigation of Secretary Hillary Clinton’s Use of a Personal E-Mail System, Federal Bureau of Investigation, 7/5/16]

Media Figures Draw Flawed Comparison Between Clinton’s Email Use To Bryan Nishimura’s Criminal Mishandling Of Classified Information

Fox’s Bill Hemmer: “What In The World Is The Difference” Between Clinton And Nishimura’s Cases? Fox News host Bill Hemmer asked, “what in the world is the difference” between Clinton and Nishimura’s cases. From the July 6 edition of Fox News’ America’s Newsroom:

BILL HEMMER (CO-HOST): You ever hear of Bryan Nishimura, age 50?

ALBERTO GONZALES: I’m aware of his case.

HEMMER: A year ago this month, in fact, age 50, pled guilty on unauthorized removal and retention of  classified materials. They found classified materials in his house. She had a private server in her home. Please explain to our audience what in the world is the difference. [Fox News, America’s Newsroom, 7/6/16]

Fox’s Steve Doocy: “Like Hillary Clinton, The FBI Investigation Did Not Reveal Evidence That [Nishimura] Intended To Distribute” Classified Information. Fox & Friends co-host Steve Doocy compared Clinton’s email use to Nishimura’s mishandling of classified information, saying “Like Hillary Clinton, the FBI investigation did not reveal evidence that he intended to distribute to unauthorized personnel and yet that man was sentenced to two years probation.” From the July 6 edition of Fox News’ Fox & Friends:

STEVE DOOCY (CO-HOST): Well, how about this? Here’s the case the federal government brought against a Naval reservist last year, a guy by the name of Bryan Nishimura. He admitted handling classified materials. He was in Afghanistan in 2007 through 2008. Apparently he had some stuff on one of his laptops. Like Hillary Clinton, the FBI investigation did not reveal evidence that he intended to distribute to unauthorized personnel, and yet that man was sentenced to two years probation, he was fined $7,500, and ordered to surrender any currently held security clearance. [Fox News, Fox & Friends, 7/6/16]

MSNBC’s Brzezinski: “If Intent Is The Big Issue” Preventing FBI From Recommending Charges Against Clinton “Then What About The Case Of Bryan Nishimura?” Morning Joe co-host Mika Brzezinski compared the decision not to recommend charges against Hillary Clinton to “the case of Bryan Nishimura,” saying the FBI investigation “did not reveal evidence that Nishimura intended to distribute information to unauthorized personnel.” Co-host Joe Scarborough criticized Comey for saying “if there’s not intent there, prosecutors don’t file charges”; Scarborough said “well they did a year ago” for Nishimura. From the July 6 edition of MSNBC’s Morning Joe:

MIKA BRZEZINSKI (CO-HOST): But if intent is the big issue --

JOE SCARBOROUGH (CO-HOST): But if intent is the issue, because he said there was no intent, so they couldn’t charge her.

BRZEZINSKI: Then what about the case of Bryan Nishimura? Less than one year ago, a former Naval reserve commander pled guilty to the unauthorized removal and retention of classified materials. Nearly nine years ago, while stationed in Afghanistan, Bryan Nishimura had access to classified briefings and records that could only be retained and viewed on authorized government computers. Nishimura caused the materials to be downloaded and stored on his personal, unclassified devices and carried those devices off-base and ultimately back to the U.S. once his deployment ended. Once back home, Nishimura copied those materials onto at least one unauthorized and unclassified system. Nishimura admitted he handled the classified materials inappropriately and that he destroyed some at home. An FBI search of his home recovered numerous classified materials. The investigation, however, did not reveal evidence that Nishimura intended to distribute information to unauthorized personnel.

SCARBOROUGH: It said they said they did not find intent.

BRZEZINSKI: He was ultimately sentenced to two years probation, a $7,500 fine, and was ordered to surrender any held security clearance and to never again seek such a clearance.

SCARBOROUGH: Mark Halperin, so here you have a Naval reservist that took a laptop, a personal laptop with classified information home, kept it there, never distributed to anybody, and was actually convicted when the FBI said they found no intent. James Comey yesterday said well if there’s not intent there, prosecutors don’t file charges. They did a year ago. [MSNBC, Morning Joe, 7/6/16]

The Week’s Edward Morrissey: “The Only Conclusion To Draw From This Dichotomy” Between Clinton And Nishimura “Is That Some Americans Are Just Too Big To Indict.” Conservative columnist Edward Morrissey compared Clinton’s email use to Nishimura’s case, writing that “Nishimura now has a criminal record and cannot get access to classified material for the rest of his life.” Morrissey asserted that “The only conclusion to draw from this dichotomy is that some Americans are just too big to indict.” From a July 6 The Week column:

Consider, too, the case of Bryan Nishimura. The Department of Justice prosecuted the Naval reservist for unauthorized possession of classified materials, having downloaded them to his personal electronic devices while serving in Afghanistan. None of Comey's parameters for prosecution applied in this case, and yet the DoJ pressed charges all the way to a conviction last year, resulting in a $7,500 fine and probation for Nishimura.

Nishimura now has a criminal record and cannot get access to classified material for the rest of his life. Saucier faces several years in prison for his personal photographs. Clinton, for her attempts to bypass the Federal Records Act, FOIA actions, and Congressional oversight, faces the real possibility of holding the highest and most powerful elective office in the world.

The only conclusion to draw from this dichotomy is that some Americans are just too big to indict. [The Week, 7/6/16]

RT.com: “The Strongest Parallels Can Be Seen” Between Clinton And Nishimura’s Cases. RT.com asserted that “perhaps the strongest parallels can be seen” between Clinton’s case and that of Nishimura, writing that Nishimura was sentenced for “holding classified materials on personal devices – without malicious intent, just like Hillary Clinton,” but “didn’t get off so easy.” From a July 5 RT.com article:

But perhaps the strongest parallels can be seen with someone lower on the government totem pole. Bryan H. Nishimura, was sentenced to two years’ probation and $7,500 fine last year for holding classified materials on personal devices – without malicious intent, just like Hillary Clinton.

“He carried such classified materials on his unauthorized media when he traveled off-base in Afghanistan and, ultimately, carried those materials back to the United States at the end of his deployment,” the FBI’s website says. “In the United States, Nishimura continued to maintain the information on unclassified systems in unauthorized locations, and copied the materials onto at least one additional unauthorized and unclassified system.”

The similarity of such case to the Clinton controversy doesn’t seem to be lost on Comey. The FBI chief strongly stated that others who behaved as Clinton did wouldn’t necessarily get off the hook like the former secretary did. [RT.com, 7/5/16]

Townhall’s Matt Vespa: Nishimura Was “Convicted For Mishandling Classified Material” And “Acting Just Like Clinton Did With Her Email Usage.” Townhall contributor Matt Vespa claimed that “other people,” including Nishimura “have been convicted for mishandling classified material for acting just like Clinton did with her email usage.” From the July 5 Townhall post:

You don’t need intent to violate the gross negligence statute. Moreover, other people have been convicted for mishandling classified material for acting just like Clinton did with her email usage.

In 2015, Navy reservist Bryan Nishimura downloaded classified information onto electronic devices during his deployment in Afghanistan in 2007 and 2008. [Townhall.com, 7/5/16]

National Review Editorial: Charges Have Been Brought “Against Persons Accused Of Much Less” Than Clinton, Including Nishimura. A National Review editorial claimed that “‘reasonable prosecutors’ have brought charges against persons accused of much less” than Clinton, including Nishimura. From a July 5 National Review editorial:

Notably, though, “reasonable prosecutors” have brought charges against persons accused of much less. U.S. Navy officer Kristian Saucier faces ten years in prison for taking pictures of the engine room of his submarine with his cell phone. Bryan Nishimura, a naval reservist who served in Afghanistan from 2007 to 2008, was fined and given two years of probation for downloading classified military information to his personal device and taking it back to his California home. [National Review, 7/5/16]

Unlike Clinton, Nishimura Admitted To Knowingly Mishandling Classified Information

Nishimura “Knew That He Was Only Authorized To View” Classified Data “On Authorized Government Computers” And “Was Not Permitted To Remove” It. According to Nishimura’s plea agreement, he “knew that he was only authorized to view such CLASSIFIED data in digital format on authorized government computers, and was not permitted to remove CLASSIFIED data from such authorized government computers.” From the plea deal (emphasis added):

From on or about 2000 to 2014, the defendant, BRYAN H. NISHIMURA, was enlisted as a 5 service member in the United States Navy Reserve (the “Navy Reserve”). From on or about January 2007 to May 2008, the defendant was deployed by the Navy Reserve on active military duty to Afghanistan, as part of Operation Enduring Freedom, where he served as a Navy Reserve Commander and a Regional Engineer for the U.S. military. In this capacity, the defendant had access to CLASSIFIED briefings and CLASSIFIED digital and hard copy records of the United States including, but not limited to, CLASSIFIED United States Army records. The defendant knew that he was only authorized to view such CLASSIFIED data in digital format on authorized government computers, and was not permitted to remove CLASSIFIED data from such authorized government computers. The defendant disregarded this restriction throughout his tour in Afghanistan by downloading and storing CLASSIFIED data that he obtained from authorized government computers onto his personal, unclassified electronic devices and storage media. The defendant then removed this CLASSIFIED data from the authorized premises, and transported it off-base when he traveled throughout Afghanistan.

[...]

In May 2012, the Federal Bureau of lnvestigation (“FBI”) performed a consensual search of the defendant's Folsom, California, residence and recovered numerous United States CLASSIFIED and unclassified military records, stored both digitally and in hard copy. Among the CLASSIFIED records recovered were at least four digitally-stored CLASSIFIED U.S. Army records dating from the defendant's 2007-2008 Afghanistan tour.

In May 2012, the defendant also admitted to FBI and Naval Criminal Investigative Service agents that he had stored, viewed, and transported approximately 200MB of United States CLASSIFIED data and satellite imagery in the abovementioned manner during his 2007-2008 tour in Afghanistan; returned from Afghanistan to the United States with such CLASSIFIED data stored on personal electronic devices and storage media in May 2008; stored and retained this CLASSIFIED data on personal electronic devices and storage media at his residence in Folsom, California, following his return to the United States in May 2008; and destroyed and disposed of personal electronic devices and storage media containing such CLASSIFIED data between approximately February and April 2012. The defendant admitted that he knew that the manner in which he had destroyed these United States CLASSIFIED records was not a method approved or sanctioned by the U.S. Navy. [United States of America v. Bryan H. Nishimura, Plea Agreement, accessed 7/6/16]

Legal Experts Debunk Comparison Between Clinton’s And Nishamura’s Cases

Legal Experts: Clinton’s Case Doesn’t Fit The Comparisons With Nishimura Because She “Denied Knowing That Any Of The Information At Issue Was Secret Or Classified.” Legal experts quoted in a Wall Street Journal article noted that Clinton’s case cannot be compared to the cases of Petraeus, Deutch, or Nishimura because she “denied knowing that any of the information at issue was secret or classified.” Experts also pointed out that “no evidence has surfaced showing that Mrs. Clinton disclosed any classified information to someone who wasn’t permitted to see it.” From the July 5 Wall Street Journal article:

Under a 1994 federal law, governmental officials can face as much as year in prison for removing and retaining classified documents or material without authorization. Prosecutors must show that the official knowingly removed the information and intended to store it at an unauthorized location.

The law was used to prosecute Gen. Petraeus, who admitted sharing his schedule and personal notes from his time as commander of U.S. military operations in Afghanistan with his biographer. The notes contained classified information about the identities of covert officers, secret operations and military strategy.

John M. Deutch, CIA director from 1995 to 1996, was investigated for accessing classified material on unsecured computers at his residences. He lost his security clearance but was never charged.

More recently, prosecutors have used the law to charge a Naval reservist who admitted to storing classified briefings and digital records on his personal devices, as well as a machinist’s mate who pleaded guilty to taking photos of the submarine he served on, according to the Justice Department.

The agency said the machinist “had a secret clearance and knew that the photos depicted classified material and that he was not authorized to take them.”

Kathleen Clark, a law professor at Washington University who teaches national security law, said those cases were distinct from Mrs. Clinton’s because, in each, “there was reason to believe the individual being prosecuted knew the information was classified.”

Mrs. Clinton denied knowing that any of the information at issue was secret or classified. Mr. Comey said Tuesday that a small number of the emails bore markings that indicated the presence of classified information.

Steve Aftergood, who directs a project on government secrecy at the Federation of American Scientists, said no evidence has surfaced showing that Mrs. Clinton disclosed any classified information to someone who wasn’t permitted to see it.

“That distinguishes it from the Petraeus case and other leak cases,” Mr. Aftergood said. [The Wall Street Journal, 7/5/16]

Similar Flawed Comparisons Between Clinton’s Case And The Cases Of Petraeus And Deutch Have Previously Been Debunked 

New Yorker's Toobin: Comparison Between Clinton And Petraeus Are “Inapt.” New Yorker staff writer Jeffrey Toobin called comparisons between Clinton's situation and that of retired Gen. David Petraeus -- who was convicted of mishandling classified information -- “inapt” because Petraeus “knowingly” committed the act. From an August 18 article:

Clinton's critics have noted that General David Petraeus pleaded guilty to a misdemeanor in connection with the disclosure of classified information to his biographer. But Petraeus acknowledged both that he knew the information was classified and that his biographer was not cleared to receive it. Because Clinton has said that she did not believe the information was classified, and because she turned it over only to cleared State Department employees, the comparison is inapt. [The New Yorker, 8/18/15]

Lead Prosecutor Against Petraeus: Comparison With Hillary Clinton's Email Use “Has No Merit.” In an August 30 USA Today opinion piece, the former U.S. attorney who oversaw the prosecution of Petraeus for mishandling classified state secrets debunked the false comparison of Hillary Clinton's email use to Petraeus' actions, explaining that the “comparison has no merit” because “Petraeus knowingly engaged in unlawful conduct” and “Clinton is not being investigation for knowingly sending or receiving classified materials improperly.” From the op-ed:

Both the law and his oath required Petraeus to mark these books as “top secret” and to store them in a Secured Compartmented Information Facility. He did neither.



Rather, Petraeus allowed his biographer to take possession of the journals in order to use them as source material for his biography.



Importantly, Petraeus was well aware of the classified contents in his journals, saying to his biographer, Paula Broadwell on tape, “I mean, they are highly classified, some of them. They don't have it on it, but I mean there's code word stuff in there.”



When questioned by the FBI, Petraeus lied to agents in responding that he had neither improperly stored nor improperly provided classified information to his biographer. As Mukasey also highlighted, the key element is that Petraeus' conduct was done “knowingly.” That is, when he stored his journals containing “highly classified” information at his home, he did so knowingly. Petraeus knew at that time that there was classified information in the journals, and he knew they were stored improperly.



In sharp contrast, Clinton is not being investigated for knowingly sending or receiving classified materials improperly.



Indeed, the State Department has confirmed that none of the information that has surfaced on Clinton's server thus far was classified at the time it was sent or received. Additionally, the Justice Department indicated that its inquiry is not a criminal one and that Clinton is not the subject of the inquiry. [USA Today, 8/30/15]

Washington Post's Ignatius: Petraeus And Deutch Cases Are “Quite Different” From Clinton's Even Though They Are “Cited As Parallels.” Washington Post columnist David Ignatius explained that Clinton's email situation is different from those involving Petraeus and former Central Intelligence Director John Deutch -- who was pardoned in 2001 for using an unsecured CIA computer at his home to improperly access classified material -- despite the fact they're “cited as parallels.” From an August 27 Washington Post column:

Potential criminal violations arise when officials knowingly disseminate documents marked as classified to unauthorized officials or on unclassified systems, or otherwise misuse classified materials. That happened in two cases involving former CIA directors that are cited as parallels for the Clinton e-mail issue, but are quite different. John Deutch was pardoned in 2001 for using an unsecured CIA computer at his home to improperly access classified material; he reportedly had been prepared to plead guilty to a misdemeanor. David Petraeus pleaded guilty to a misdemeanor in April for “knowingly” removing classified documents from authorized locations and retaining them at “unauthorized locations.” Neither case fits the fact pattern with the Clinton e-mails. [The Washington Post, 8/27/15]