The Two Most Puzzling Passages From the FBI’s Statement on Hillary’s Emails

This morning, the FBI held a press conference revealing its findings in the Hillary Clinton email investigation. Their conclusion, which is making all the headlines, was a recommendation that the Department of Justice should not indict Clinton, and that, despite some “extremely careless” behavior, there was no evidence that Clinton or any of her staffers intended to violate any laws. You can read the FBI’s full statement here, but there are two passages in particular that don’t seem to add up.

The first concerns the lawyers working for Clinton who were responsible for determining which emails should be sent to the FBI, and which could be withheld as “personal”:

The lawyers doing the sorting for Secretary Clinton in 2014 did not individually read the content of all of her e-mails, as we did for those available to us; instead, they relied on header information and used search terms to try to find all work-related e-mails among the reportedly more than 60,000 total e-mails remaining on Secretary Clinton’s personal system in 2014. It is highly likely their search terms missed some work-related e-mails, and that we later found them, for example, in the mailboxes of other officials or in the slack space of a server.

It is also likely that there are other work-related e-mails that they did not produce to State and that we did not find elsewhere, and that are now gone because they deleted all e-mails they did not return to State, and the lawyers cleaned their devices in such a way as to preclude complete forensic recovery.

Does this not seem a little crazy? Not only were Clinton’s people allowed to determine what the FBI saw, but their method was so unscientific that they didn’t even read the actual emails. And when they were finished, they actually “cleaned” their devices so no other material could be recovered, unless it was from a third party.

The FBI concludes this passage by essentially throwing up its hands and saying, “well, there are definitely more emails out there, and they are definitely works emails—not personal—but what are you going to do?”

Later, in explaining why there should be no prosecution, they cited no “efforts to obstruct justice.” But what would you call this?

Here’s Comey casually floating the idea that HRC’s lawyers purposely and permanently deleted incriminating evidence pic.twitter.com/TRRKKbdHlr

— Michael Tracey (@mtracey) July 5, 2016

The second passage:

With respect to potential computer intrusion by hostile actors, we did not find direct evidence that Secretary Clinton’s personal e-mail domain, in its various configurations since 2009, was successfully hacked. But, given the nature of the system and of the actors potentially involved, we assess that we would be unlikely to see such direct evidence. We do assess that hostile actors gained access to the private commercial e-mail accounts of people with whom Secretary Clinton was in regular contact from her personal account. We also assess that Secretary Clinton’s use of a personal e-mail domain was both known by a large number of people and readily apparent. She also used her personal e-mail extensively while outside the United States, including sending and receiving work-related e-mails in the territory of sophisticated adversaries. Given that combination of factors, we assess it is possible that hostile actors gained access to Secretary Clinton’s personal e-mail account.

You can read this as a three-point conclusion:

1. Hillary Clinton was extremely negligent, even sending and receiving emails in countries that definitely had the capacity and the desire to hack her.

2. We don’t think anyone hacked her.

3. But actually, we have no idea. Those dudes are better than us.

In the end, the recommendation to Justice was about intent—did Hillary Clinton mean to screw up so royally with her emails? Since the answer was no, they determined, no indictment will come down.

But really, didn’t we always know that? Only the most tin-foily conspiracy theorist believed that Clinton actually wanted to be hacked. As far as everyone else was concerned, the issue here was not intent but negligence. Nobody wants to be hacked, but if someone doesn’t take reasonable precautions to protect classified information, and actually flouts the rules while subjecting this information to cyber-attacks, isn’t that person culpable?

In the FBI’s view, no—even if there’s evidence that lawyers played a shifty game while delivering the emails, and they have no clue whether anything was hacked. If this was always about “intent,” then why did the investigation ever happen in the first place?