This morning, the FBI announced that Secretary Clinton will not face charges over her private email server. Its reasoning depended on a judgment of intent: Although the FBI argued that Clinton was “extremely careless in [her] handling of very sensitive, highly classified information,” it found no “clear evidence that [she] intended to violate laws governing the handling of classified information.” This absence of intent got Clinton off the hook.
But we should be very clear about what “intent” means. Throughout his statement on the case, FBI Director James Comey used the term in two different ways. First, it was the intent to operate a clearly inappropriate email server. Second, it was the intent to frustrate the FBI’s investigation of that server. This distinction makes all the difference: Although the FBI cleared Clinton of the second charge, it suggested her guilt on the first.
The FBI’s statement began with a bang:
From the group of 30,000 e-mails returned to the State Department, 110 e-mails in 52 e-mail chains have been determined by the owning agency to contain classified information at the time they were sent or received. Eight of those chains contained information that was Top Secret at the time they were sent; 36 chains contained Secret information at the time…
From there, Comey discussed how the FBI found additional emails—ones that the Clinton team did not disclose. The absence of disclosure did not count against Clinton, because the FBI “found no evidence that any of the additional work-related e-mails were intentionally deleted in an effort to conceal them.” (This is the second use of “intent.”) Instead, the FBI held, Clinton and her team made a good faith effort to comply with the investigation. They disclosed what they had, and that was good enough.
So be it. But why did Clinton lack access to these other, not disclosed emails? The FBI explained, “Because she was not using a government account—or even a commercial account like Gmail—there was no archiving at all of her e-mails.” The very nature of Clinton’s private server precluded her full transparency before the law.
The use of this private server was suspect in itself. According to Comey,
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.
The Secretary of State had to know that sending classified emails through a private, insecure server was out of bounds, let alone illegal (see section 1924). If Secretary Clinton did not know this, one of her aides certainly did.
However, although the FBI accepted the obvious—a “reasonable person” would know not to use a private server—it did not make the obvious inferences: Because Secretary Clinton is a reasonable person, she knew that the private server was illegal. Because Secretary Clinton knew her server was illegal but used it anyway, she intentionally broke the “laws governing the handling of classified information.”
This brings us back to the meaning of “intent.” It is true that Secretary Clinton did not intentionally frustrate a government investigation; she did not intend to delete or withhold her emails. But she did not have to. The very nature of her server prevented a full investigation. She created this server, in violation of the law, intentionally.
Hence the tension in the FBI’s statement. The claim that it lacked “clear evidence that [Clinton] intended to violate laws governing the handling of classified information” is true in one part and false in another. It is true that Clinton did not intend to commit one crime. But it is also true that she intended to commit another. In this sense, the FBI’s statement was highly misleading.
It also covers up, de facto, the Clintons’ perfect crime: By intentionally creating this server, the Clintons preempted the need for future wrongdoing. They could have the effect of deleting emails without the crime of actually doing it. A successful prosecution of Secretary Clinton would need to grapple with that strategy.
In the coming days, you can except Republican Senators to drive that point home.