Pretty good explanation of why Clinton wasn't charged in the IG report. I thought she should have been charged with obstruction at the very least - but, this is a pretty good argument and I'm swayed.
As summarized below, the Midyear prosecutors concluded that there was not a basis to prosecute former Secretary Clinton, her senior aides, or others under any of these statutes. The prosecutors cited the following factual conclusions from the investigation as critical to its recommendation not to prosecute:
None of the emails contained clear classification markings as required under Executive Order 13526 and its predecessor. Only three email chains contained any classification markings of any kind. These email chains had one or two para
graphs that were marked “(C)” for “Confidential” but contained none of the other required markings
, such as classification headers.
There was no evidence that the senders or former Secretary Clinton believed or were aware at the time that the emails contained classified information. In the absence of clear classification markings, the prosecutors determined that it would be difficult to dispute the sincerity of these witnesses
stated beliefs that the material was not classified.
The senders and former Secretary Clinton relied on the judgment of employees experienced in protecting sensitive information to properly handle classified information.
The emails in question were sent to other government officials in furtherance of the senders
official duties. There was no evidence that the senders or former Secretary Clinton intended that classified information be sent to unauthorized recipients, or that they intentionally sought to store classified information on unauthorized systems.
There was no evidence that former Secretary Clinton had any contemporaneous concerns about the classified status of the information that was conveyed on her unclassified systems, nor any evidence that any individual ever contemporaneously conveyed such concerns to her.
Although some witnesses expressed concern or surprise when they saw some of the classified content in unclassified emails, the prosecutors concluded that the investigation did not reveal evidence that any U.S. government employees involved in the SAP willfully communicated the information to a person not entitled to receive it, or willfully retained the same.
The senders used unclassified emails beca
use of “operational tempo,”
that is, the need to get information quickly to senior State Department officials at times when the recipients lacked access to classified systems. To accomplish this, senders often refrained from using specific classified facts or terms in emails and worded emails carefully in an attempt to avoid transmitting classified information.
There was no evidence that Clinton set up her servers or private email account with the intent of communicating or retaining classified information, or that she had knowledge that classified information would be communicated or retained on it.
In addition to these facts as described by the prosecutors, various witnesses told us that one reason it was difficult to establish intent was that the mishandling of
classified information was a persistent practice at the State Department. These practices made it difficult for the Midyear team to conclude that particular individuals had the necessary criminal intent to mishandle classified materials.
According to Prosecutor 4, “
[T]he problem was the State Department was so screwed up in the way they treated classified information that if you wanted to prosecute Hillary Clinton, you would have had to prosecute 150 State Department
Based on facts evincing a lack of intent to communicate classified information on unclassified systems, the prosecutors concluded that there was no basis to recommend prosecution of former Secretary Clinton or the senders of classified information under Sections 793(d) or (e). In addition, as described in Chapter Two, prosecutors reviewed the legislative history of the gross negligence provision in Section 793(f)(1) and court decisions impacting the interpretation of it. The prosecutors noted that the congressional debate at the time the predecessor to Section 793(f)(1) was passed indicated that conduct charged under the
provision must be “so gross as to almost suggest deliberate intention,” criminally reckless, or “something that falls just a little short of being willful.”
The prosecutors also reviewed military and federal court cases and previous prosecutions under Section 793(f)(1), and concluded that they involved either a defendant who knowingly removed classified information from a secure facility, or inadvertently removed classified information from a secure facility
and, upon learning this, failed to report its “loss, theft, abstraction, or destruction.”
In addition, based on a review of constitutional vagueness challenges of Sections 793(d) and (e), the Midyear prosecutors observed
that “the government would very
likely face a colorable constitutional challenge to the statute if it prosecuted an individual for gross negligence who was both unaware he had removed classified
information at the time of the removal and never became aware he had done so.”
The prosecutors concluded that based on case law and the Department’s
prior interpretation of the statute, charging a violation of Section 793(f) likely required evidence that the individuals who sent emails containing classified
information “knowingly” included the classified information or transferred classified
information onto unclassified systems (Section 793(f)(1)), or learned that classified information had been transferred to unclassified systems and failed to report it (Section 793(f)(2)). Applying this interpretation, the prosecutors concluded that there was no evidence that the senders of emails knew that classified information had been improperly transferred to an unclassified system, or that former Secretary Clinton acted in a grossly negligent manner with respect to receiving emails determined to contain classified information. According to information reviewed by the OIG, the prosecutors also considered whether the decision to conduct official business using a personal server could itself constitute gross negligence, but concluded that there was no evidence that former Secretary Clinton ever considered the possibility that classified information would be present in unclassified emails or on her private email server.
Distinguishing military prosecutions
for “grossly negligent” mishandling
, the prosecutors also noted that there was no evidence that classified emails were provided to or discovered by people who were unauthorized to receive them. The prosecutors
stated, “[A]ll of the emails containing information subsequently
determined to be classified were sent for work purposes and were delivered to
State Department or other U.S. government officials.”
Regarding Section 1924, the prosecutors stated that the statute requires proof that an individual knew of the removal of classified information and intended to retain that information in an unauthorized location, and that such proof was lacking. The prosecutors cited the absence of classification markings on the emails sent by the senders, with the exception of the three emails forwarded to Clinton containing paragraph markings denoting Confidential information, as well as the lack of evidence that the senders knowingly took classified information and sent it in unmarked emails over unclassified systems. The prosecutors similarly concluded that former Secretary Clinton did not recognize or have reason to believe that the information sent to her contained classified information. Prosecutors cited Clinton
s reliance on the judgment of senior aides and other State Department staff, their attempts to talk around sensitive information in unclassified emails, and her testimony that she did not have reason to question their use of unclassified systems to send that information. The prosecutors concluded that the evidence was insufficient to charge former Secretary Clinton under Section 1924. The prosecutors also concluded that there was insufficient evidence to support prosecution under 18 U.S.C. § 2071, which prohibits the willful concealment, removal, or destruction of federal records. They concluded that there was insufficient evidence to establish beyond a reasonable doubt that former Secretary Clinton or her senior aides intended to conceal records, citing testimony that these witnesses expected that any emails sent to a state.gov address would be preserved. The prosecutors acknowledged that this testimony was undercut by former Secretary Clinton
s admission that she sometimes communicated with her senior aides using their personal email accounts, as well as an email she received from former Secretary of State Colin Powell at the beginning of her tenure outlining his use of personal email. However, the prosecutors noted that Section 2071 had
“never been used to prosecute individuals for attempting to avoid Federal Records
Act requirements by failing to ensure that government records are filed
Finally, the prosecutors evaluated whether Mills and Samuelson intentionally deleted emails during the culling process used to separate former Secretary Clinton’s “personal” and “work-related” emails for production to the State Department. They concluded that there was no evidence that emails intentionally were deleted by former Secretary Clinton’s lawyers to conceal the presence of classified information on former Secretary Clinton’s server, particularly because some of the emails produced as “work-related” later were determined to contain
highly classified, compartmented information.
He goes on to analyze their decision on page 260 and agrees with their conclusions. It's pretty long and the formatting is hard to copy and paste. https://www.scribd.com/document/3818065 ... estigation