Extreme carelessness isn’t criminal, at least when it comes to handling classified information.

That’s the consensus of experts in national security law, who weren’t surprised that the FBI isn’t recommending an indictment for Hillary Clinton and her staff related to her use of a private email server, saying such a move would have set a bold new standard for such cases.


“It would have been a real long-shot to shoehorn Secretary Clinton’s conduct into the existing federal criminal laws,” said Stephen Vladeck of the University of Texas School of Law. “I don’t think this was the case in which to pursue unprecedented interpretations of those statutes.”

That might sound strange to anyone who never took the LSAT listening to FBI Director James Comey’s statement on Tuesday morning. He called her handling of highly sensitive information “extremely careless,” and said any “reasonable person” should have known what was classified, and that the emails she sent from hostile territory were even less secure than plain old Gmail.

It caught some seasoned prosecutors by surprise too. “When I listened to him, I thought for sure he was going to either make no recommendation or recommend prosecution,” said Rudy Giuliani, the former Republican mayor of New York who made his name prosecuting the Mafia in the 1980s. “No reasonable prosecutor would not present this case to a grand jury.”

But ultimately, other experts say, she and her aides weren’t trying to be traitors, and there’s no evidence that anything really bad happened as a result of her homebrew server.

“It’s not as if he overlooked or whitewashed the facts of the matter,” said Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists, about Comey’s statement. “But he also explained the difference between this case and previous criminal cases: Namely the question of intent, the volume of material, disloyalty to the United States and other factors which are not relevant here.”

Part of the issue is that the rules governing how classified information is handled date back to 1917, and it’s unclear exactly how the morass of laws apply – even to behavior that just seems wrong from a common-sense perspective.

“The basic problem here is that the relevant federal criminal laws are a patchwork, and there’s no general prohibition against basically unsecured communications,” Vladeck said. “Indeed, there isn’t even a clear prohibition of unsecure communication of classified information. So I think there’s a really wide gap between what the average person on the street assumes is illegal and what’s actually illegal in this area.”

That Comey got into all those unflattering details about the FBI’s findings is unusual, and may have been driven at least in part by concerns that the investigation would be influenced by Clinton’s political ties to the Obama administration. President Barack Obama endorsed her – they appeared together on the campaign trail for the first time just hours after Comey’s remarks – and former President Bill Clinton caused a furor last week with an impromptu social call on Attorney General Loretta Lynch. Lynch still has the final say on whether Clinton faces prosecution, and though she has said she’ll accept the recommendation of the career prosecutors – the ones Comey just advised not to proceed – Republicans are still crying foul.

Trump called the system “rigged” in a tweet Tuesday, and a few Republican lawmakers have called for a special prosecutor to take a look at the FBI’s findings before the Justice Department makes a final decision on prosecution.

On top of that, much of the national security establishment is hostile to Donald Trump, who has mused about abandoning decades of nuclear security policy and bringing back torture to interrogate terror suspects.

“Is the mistake of using the email server akin to calling for violations of international law?” said Susan Hennessey, a former National Security Agency lawyer now at the Brookings Institution.

But there are some national security law experts who think the case against Clinton is clear. There is one relevant law that criminalizes gross negligence, regardless of intent, and Clinton broke it, according to Andrew McCarthy, who prosecuted the perpetrators of the first World Trade Center bombing in the 1990s.

“In essence, in order to give Mrs. Clinton a pass, the FBI rewrote the statute, inserting an intent element that Congress did not require,” McCarthy wrote in National Review on Tuesday. “The added intent element, moreover, makes no sense: The point of having a statute that criminalizes gross negligence is to underscore that government officials have a special obligation to safeguard national defense secrets; when they fail to carry out that obligation due to gross negligence, they are guilty of serious wrongdoing.”

Hennessey acknowledged the negligence provision, but noted the government doesn’t use it to prosecute people.

“There are not infrequently federal laws constructed such that a lot of different activity could technically be considered a criminal violation,” Hennessey added. But that’s not the same thing as “properly chargeable under the law.”

If the negligence law has never had its day in court, Giuliani said, there’s a simple explanation: “There’s never been a secretary of State who has been as reckless.”

Giulini also questioned the idea that Clinton had shown no criminal intent. “Everything [Comey] said is the kind of thing as prosecutor you use to prove intent,” Giuliani said in a phone interview, adding that Clinton showed the “conduct of a person who had consciousness of guilt: she hid records, she destroyed records, she put her server at home.”

He continued, “I’ve never heard of anyone in a criminal investigation who destroyed 34,000 records who didn’t get indicted.”

But even as Trump claimed on Tuesday that “General Petraeus got in trouble for far less,” one of the former prosecutors for David Petraeus said the two cases were quite different.

James Melendres said on MSNBC that for one, there appeared to be a lack of willfulness in the Clinton case, whereas Petraeus acknowledged that he knew the information he shared with his lover Paula Broadwell was highly classified. He also said that were aggravating circumstances in the Petraeus case, notably that Petraeus lied to investigators.

Government employees can still get in plenty of trouble for mishandling classified material, and as Comey noted, people involved in the Clinton case could still be subject to administrative sanctions. That could mean getting fired or having security clearance revoked. It wouldn’t affect Clinton if she’s elected, but she’ll likely want other top aides swept up in the inquiry, like her top foreign policy adviser Jake Sullivan and longtime aide Human Abedin, to have access to security clearances.

“Because Clinton is running for president, if she is elected, she will have been cleared by the American people,” Aftergood said. “Other people who are employees of the State Department or other agencies might have new hurdles to face in future employment.”

Rep. Devin Nunes (R-Calif.), chairman of the House Intelligence Committee, didn’t second-guess Comey’s recommendation on prosecution, but he did call for more accountability down the road. “I hope the irresponsible handling of classified information documented by the FBI will be considered if any of these individuals currently possesses a security clearance or applies for one in the future,” he said in a statement.

But the point of those sanctions is usually to get sensitive material out of the hands of untrustworthy people, Hennessey said, and with Clinton’s aides publicly and politically chastened, it’s safe to assume they won’t make the same mistake again.

While some low-level State employees could get a slap on the wrist, she added, revoking clearances would be “really very aggressive considering the facts that have emerged.”

Another big reason Clinton is likely off the legal hook: while Comey talked about vulnerability to hackers, he didn’t mention any bad consequences.

“That might have changed the outcome, if there were evidence that, oh, a CIA source got killed as a result of sloppiness or an operation had to be aborted,” Aftergood said. “That would change the whole texture of the story, and no one has suggested that anything like that happened.”

Even as he accused the Justice Department of giving Clinton special treatment, Giuliani wouldn’t directly speculate about Comey’s motives for, in his view, dropping a slam-dunk case.

“Obviously he’s not comfortable with it,” Giuliani said. “He wouldn’t take any questions on it.”

Comey did go out of his way to criticize the State Department more broadly on Tuesday, even though it wasn’t the focus of the investigation.

“We also developed evidence that the security culture of the State Department in general, and with respect to use of unclassified e-mail systems in particular, was generally lacking in the kind of care for classified information found elsewhere in the government,” Comey said.

It’s unclear whether lawmakers will ever take steps to more clearly codify the law related to classified information. Right now, the laws seem to be so vague that they could apply to everyone, or no one.

“There’s a worthwhile debate that we ought to have about whether simply miscommunicating or communicating over unsecured networks should itself be illegal,” said Vladeck. “If it was, then hundreds if not thousands of federal employees would be liable.”

