What Clinton investigation means for her security clearance

Gregory Korte | USA TODAY

Show Caption Hide Caption FBI advises no criminal charges for Clinton The FBI recommended Hillary Clinton shouldn't face charges over her use of a private email server while she was secretary of state.

WASHINGTON — FBI Director James Comey said Tuesday he would not recommend criminal prosecution of former secretary of State Hillary Clinton for mishandling classified information. But he did suggest another remedy: the loss of her security clearance.

If she were anyone else, Comey said in a televised press statement, the facts uncovered in the FBI's investigation might cost Clinton her security clearance — if not her job.

"To be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences," Comey said. "To the contrary, those individuals are often subject to security or administrative sanctions. But that is not what we are deciding now."

As a former secretary of State — and before that, a member of the Senate Armed Services Committee — she had a top-secret security clearance, and almost certainly maintains it. "I'm sure she does hold a clearance, and she should," Rep. Adam Schiff, the ranking Democrat on the House Intelligence Committee, told Bloomberg News in February.

But Clinton doesn't need one to have access to intelligence briefings given to major presidential nominees. And if she's elected president, the laws governing security clearances won't apply to her.

Neither the State Department, the Office of the Director of National Intelligence nor the Clinton campaign would not comment on Clinton's security clearance Tuesday.

Republicans suggested that Clinton was getting special treatment. "I don’t know of anyone with a security clearance who would still have a one if they had been as 'extremely careless' as Clinton has been," Rep. Blake Farenthold of Texas said on Twitter.

I don’t know of anyone with a security clearance who would still have a one if they had been as “extremely careless” as Clinton has been. — Blake Farenthold (@farenthold) July 5, 2016

The process for revoking a security clearance is laid out in Executive Order 12968 — signed by Clinton's husband, President Bill Clinton. "The unauthorized disclosure of information classified in the national interest can cause irreparable damage to the national security and loss of human life," Clinton wrote in the order.

The order applies to both current and former government employees, and to consultants, contractors and experts hired by an agency. That would probably include Clinton. "There’s a long tradition of secretaries of State making themselves available to future secretaries and presidents, and secretaries are typically allowed to maintain their security clearance and access to their own records for use in writing their memoirs and the like," former State Department spokeswoman Jen Psaki said last year.

On Tuesday, State Department spokesman John Kirby would not address Clinton's security clearance specifically, but confirmed that the State Department is responsible for following up on any security clearances it may have issued to employees "regardless of whether the employee is still employed by the agency."

But the Clinton case poses a dilemma for the intelligence community. With or without a clearance, Clinton will become privy to national security briefings once she officially becomes the Democratic nominee for president. Republican nominee Donald Trump will receive the same briefing, based on a bipartisan tradition that goes back to President Harry Truman.

Once elected, the president-elect will get an even more extensive briefing similar to what President Obama receives every morning. Clinton formerly received the president's daily briefing as secretary of State. The 1995 executive order doesn't apply to the president or the vice president, whose clearances cannot be revoked.

As Trump tightened his grasp on the Republican election in May, the intelligence community faced similar questions about the wisdom of disclosing state secrets to a candidate known for loose talk in campaign rallies and on social media.

The White House said it wouldn't be involved in those decisions.

"The decision about what material to present to the two presidential candidates who are nominated by the two major political parties will be made by our professionals in the intelligence community," White House Press Secretary Josh Earnest said in May. But he did seem to give Clinton the benefit of the doubt.

"She is somebody who undeniably served closely with the president with distinction, and she was critical to advancing a number of policy priorities, including the international agreement to prevent Iran from obtaining a nuclear weapon. And that required her to handle sensitive information and to use it in the course of her job to advance our nation’s interests. And that’s what she did," Earnest said May 6.

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