The Department’s Declination Decision
on July 6
Following Comey’s public statement on July 5, the
Midyear prosecutors finalized their recommendation
that the Department decline prosecution of Clinton, her
senior aides, and the senders of emails determined to
contain classified information. On July 6, the Midyear
prosecutors briefed Lynch, Yates, Comey, other
members of Department and FBI leadership, and FBI
Midyear team members about the basis for the
declination recommendation. Lynch subsequently
issued a short public statement that she met with the
career prosecutors and agents who conducted the
investigation and “received and accepted their
unanimous recommendation” that the investigation be
closed without charges.
We found that the prosecutors considered five federal
statutes:
• 18 U.S.C. §§ 793(d) and (e) (willful mishandling
of documents or information relating to the
national defense);
• 18 U.S.C. § 793(f) (removal, loss, theft,
abstraction, or destruction of documents or
information relating to the national defense
through gross negligence, or failure to report
such removal, loss, theft, abstraction, or
destruction);
• 18 U.S.C. § 1924 (unauthorized removal and
retention of classified documents or material by
government employees); and
• 18 U.S.C. § 2071 (concealment, removal, or
mutilation of government records).
As described in Chapter Seven of our report, the
prosecutors concluded that the evidence did not support
prosecution under any of these statutes for various
reasons, including that former Secretary Clinton and her
senior aides lacked the intent to communicate classified
information on unclassified systems. Critical to their
conclusion was that the emails in question lacked
proper classification markings, that the senders often
refrained from using specific classified facts or terms in
emails and worded emails carefully in an attempt to
“talk around” classified information, that the emails
were sent to other government officials in furtherance
of their official duties, and that former Secretary Clinton
relied on the judgment of State Department employees
to properly handle classified information, among other
facts.
We further found that the statute that required the
most complex analysis by the prosecutors was Section
793(f)(1), the “gross negligence” provision that has
been the focus of much of the criticism of the
declination decision. As we describe in Chapters Two
and Seven of our report, the prosecutors analyzed the
legislative history of Section 793(f)(1), relevant case
law, and the Department’s prior interpretation of the
statute. They concluded that Section 793(f)(1) likely
required a state of mind that was “so gross as to almost
suggest deliberate intention,” criminally reckless, or
“something that falls just short of being willful,” as well
as evidence that the individuals who sent emails
containing classified information “knowingly” included or
transferred such information onto unclassified systems.
The Midyear team concluded that such proof was
lacking. We found that this interpretation of Section
793(f)(1) was consistent with the Department’s
historical approach in prior cases under different
leadership, including in the 2008 decision not to prosecute former Attorney General Alberto Gonzales for
mishandling classified documents.
We analyzed the Department’s declination decision
according to the same analytical standard that we
applied to other decisions made during the
investigation. We did not substitute the OIG’s
judgment for the judgments made by the Department,
but rather sought to determine whether the decision
was based on improper considerations, including
political bias. We found no evidence that the
conclusions by the prosecutors were affected by bias or
other improper considerations; rather, we determined
that they were based on the prosecutors’ assessment of
the facts, the law, and past Department practice.
We therefore concluded that these were legal and policy
judgments involving core prosecutorial discretion that
were for the Department to make.