An extensive FBI investigation found evidence that foreign government hackers accessed private emails sent by former secretary of state Hillary Clinton but no direct evidence spies hacked into the several unsecure servers she used.
FBI Director James Comey revealed Tuesday the 11-month probe into Clinton’s private email servers uncovered negligent handling of very sensitive classified information that was placed on several unsecure servers between 2009 and 2013, when Clinton served as secretary of state.
In an unusual public announcement, Comey outlined findings that included discovery of highly classified information sent and received on Clinton’s private email servers, and signs that "hostile actors" gained access to email accounts of people who were sharing emails with Clinton.
Comey said no clear evidence was found that Clinton and her aides intended to violate laws but "there is evidence that they were extremely careless in their handling of very sensitive, highly classified information."
Despite the evidence of potential criminal wrongdoing regarding communicating top secret, secret, and confidential information in emails, Comey announced at FBI headquarters that he is not recommending Justice Department prosecution of the presumptive Democratic nominee for president.
"Although there is evidence of potential violation of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case," Comey said.
The decision drew fire from Donald Trump, the likely Republican presidential nominee. "FBI director said Crooked Hillary compromised our national security," he stated on Twitter. "No charges. Wow!" Trump added that the "system is rigged" since Gen. David Petraeus, a former CIA director, "got in trouble for less. Very very unfair."
Clinton campaign spokesman Brian Fallon praised the FBI announcement.
"As the secretary has long said, it was a mistake to use her personal email and she would not do it again. We are glad that this matter is now resolved," Fallon said.
On the foreign counterintelligence aspects of the case, Comey said investigators found no "direct evidence" foreign state hackers gained access to the private email system. Advanced state cyber attackers, however, would be unlikely to leave traces of such intrusions, he added.
"We do assess that hostile actors gained access to the private commercial email accounts of people with whom Secretary Clinton was in regular contact from her personal account," Comey said, without elaborating or identifying the people in question.
During foreign travel, Clinton also used the personal email system extensively on "the territory of sophisticated adversaries," likely a reference to China and Russia.
"Given that combination of factors, we assess it is possible that hostile actors gained access to Secretary Clinton's personal email account," Comey said.
Former CIA director Michael Hayden, commenting on Comey’s remarks, said Clinton’s use of private email servers highlights the danger posed by the use of such servers, noting he believes it is very likely foreign states hacked into her server.
"I would lose respect for any serious intelligence agency on this planet if they had not accessed the emails on the server," said Hayden, also a former director of the NSA.
According to Comey, seven email "chains" examined by the FBI contained classified information labeled "top secret, special access program," among the highest security classification levels.
Special access programs are used in government to protect extremely sensitive information requiring extraordinary security measures. They can include such things as the identity of clandestine human agents or secret intelligence operations, military operations, or the characteristics of electronics used by foreign radar systems.
"Those chains involved Secretary Clinton both sending emails about those matters and receiving emails about those same matters," Comey said.
"There is evidence to support a conclusion that any reasonable person in Secretary Clinton's position or in the position of those with whom she was corresponding about the matters should have known that an unclassified system was no place for that conversation."
A small number of the emails contained markings indicating the presence of classified information, Comey said.
That contradicts Clinton’s repeated statements that she did not misuse any information marked as classified data. The campaign website also contains the statement that "no information in Clinton's emails was marked classified at the time she sent or received them."
Comey said even if the data was not marked as classified "participants who know, or should know, that the subject matter is classified are still obligated to protect it."
Michelle Van Cleave, former national counterintelligence executive, said she was surprised that the FBI announcement did not address whether federal Records Act violations occurred, or whether evidence was found of corruption involving improper actions by Clinton to support the Clinton Foundation.
"Is the FBI’s investigation into those matter still ongoing?" she asked.
On the foreign intelligence targeting of the Clinton emails, Van Cleave said there is no question the former secretary of state knew her email messages were and are targeted by spy services.
"The working assumption of the intelligence community is that they have it all and damage assessments are still underway," Van Cleave said. "She simplified their job by neatly packaging all of her email out of the hands of government security personnel. If that isn’t an open-and-shut case of ‘gross negligence’ under the espionage laws I don’t know what is."
Van Cleave said she is concerned by the precedent of not prosecuting a former senior government official who mishandled classified information. "If government workers see their leaders play fast and loose with classified information with impunity, what is the incentive for them to behave differently," she said.
The FBI announcement comes just over a week after former President Bill Clinton met with Attorney General Loretta Lynch in Phoenix, raising charges of political interference in the investigation. Lynch was appointed U.S. Attorney for the Eastern District of New York by Clinton in 1999.
President Obama also appeared to interfere with the investigation by announcing in October that "I can tell you this is not a situation in which America's national security was endangered."
Kenneth E. deGraffenreid, former White House National Security Council staff intelligence director, said the FBI’s decision not to recommend prosecution is a case of politicization. "The Bureau is indelibly stained by this blatantly political act," deGraffenreid said. "What would have happened to any other government official?"
DeGraffenreid said Comey overstepped FBI authority by asserting that "no reasonable prosecutor" would bring a case against Clinton. "He is not a prosecutor," he said. "That is the attorney general’s job. Not Comey’s."
The Justice Department’s National Security Division now must decide whether to follow the FBI recommendation or prosecute Clinton, who spent three and a half hours last weekend undergoing questioning by FBI agents.
Analysts say the Justice Department has been politicized through liberal appointees and thus is unlikely to go against the FBI recommendation.
The FBI announcement clears the way for Clinton to gain the Democratic nomination for president later this month at the party’s convention in Philadelphia.
Comey, in an unusually detailed statement regarding a criminal investigation, announced that his recommendation was not cleared in advance with the Justice Department and was more detailed than usual "because I think the American people deserve those details in a case of intense public interest."
The FBI investigation was launched in August of 2015 following a July 24, 2015, referral from the inspectors general of the State Department and Intelligence Community. The notice said classified information may exist on at least one server and a thumb drive.
The FBI director also faulted what he said was a lax security culture at the State Department regarding the care and handling of classified information.
Comey said the probe examined if classified information was improperly stored or transmitted on a personal system in violation of laws that make it a felony to mishandle classified information intentionally or in a grossly negligent way. A second law makes it a misdemeanor to remove classified information from secure systems.
The FBI found Clinton used not one but several servers and numerous mobile devices to read personal emails.
From the 30,000 emails Clinton gave to the State Department, the FBI found 110 emails that contained classified information at the time they were sent, including eight emails with top secret data, 36 with secret information, and eight with less-sensitive confidential data, Comey said.
Some 2,000 additional emails were later re-classified to "confidential."
"The FBI also discovered several thousand work-related emails that were not among the group of 30,000 emails returned by Secretary Clinton to State in 2014," Comey said, noting the emails were found from deleted emails and traces on servers and devices.
Comey said no evidence was uncovered indicating Clinton deleted emails containing classified information an in effort to cover up a crime.
But he added: "None of these emails should have been on any kind of unclassified system.
"But their presence is especially concerning because all of the emails were housed on unclassified personal servers, not even supported by full-time security staff like those found at agencies and departments of the United States government or even with a commercial email service like Gmail," Comey said.
Based on factors such as strength of evidence, criminal intent, and how similar situations of mishandling or removing classified data were handled in the past, "we cannot find a case that would support bringing criminal charges on these facts," he added.
Comey said the announcement would trigger public debate but insisted the probe was done "honestly, confidently, and independently."
"Criminal intent aside, anyone experienced in these matters knows that the real sin here was the original sin," said Hayden, the former CIA director who noted that that the initial creation of the private server without security procedures was a major vulnerability.
"[It meant] bad things with regard to preserving federal records and really bad things with regard to security," he said.