FBI gets it right over Clinton emails

How the FBI reached decision on Clinton investigation
How the FBI reached decision on Clinton investigation

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    How the FBI reached decision on Clinton investigation

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How the FBI reached decision on Clinton investigation 02:03

Story highlights

  • FBI Director James Comey announces Tuesday that he will not recommend charges against Hillary Clinton
  • David Gergen: Clinton forces should have only one hand clapping

David Gergen is a senior political analyst for CNN and has been a White House adviser to four presidents. A graduate of Harvard Law School, he is a professor of public service and co-director of the Center for Public Leadership at the Harvard Kennedy School. Follow him on Twitter: @david_gergen. The opinions expressed in this commentary are his.

(CNN)The FBI's decision not to recommend criminal charges against Hillary Clinton over her emails has a huge impact on her campaign: It removes the biggest and possibly the last major barrier on her path to the Democratic nomination and the White House. Beating Donald Trump may be easier than beating a rap.

Still, the Clinton forces should have only one hand clapping. Unless independent prosecutors at the Justice Department overturn the FBI recommendation -- extremely unlikely -- Clinton will stay out of a court of law. But in the initial hours after the FBI announcement, it was obvious that she could still lose in the court of public opinion -- and see further erosion in public trust.
    David Gergen
    Moments after FBI Director James Comey spoke, social media lit up with bitter accusations from Trump supporters and others that the system was rigged, that the Bill Clinton meeting with Attorney General Loretta Lynch underscored how elites play the inside game, and that as Comey himself indicated, an employee of the State Department who did similar things would -- at minimum -- have been fired.
    Indeed, the more one studies the Comey statement, the more scathing it becomes -- and the more suggestive that their decision on prosecution was a close call. As Chris Cillizza of the Washington Post quickly pointed out, Comey blew holes in the narrative that Clinton and her aides have asserted for months -- that none of the emails coming and going were marked classified, that she had her system set up for personal convenience (it turned out to cause lots of inconvenience), that her aides were meticulous in separating out personal versus professional emails, etc. Pretty clearly, Comey found the whole episode revolting.
    It won't be lost on the public, either, how close a call it appears to have been recommending against charges. Under the federal espionage statute, a person can be charged with a felony by intentionally mishandling classified information -- and the FBI did not find intentionality on Clinton's part. OR, says the statute, a felony occurs when a person acts with "gross negligence" in mishandling classified information.
    The FBI had to decide whether she acted with "gross negligence." It concluded that she did not. Instead, said Comey, the FBI concluded that she was "extremely careless."
    "Gross negligence" vs. "extremely careless": Is there really much difference? To many in the public, that sounds like hair splitting, a distinction without a difference. Lawyers will argue that one until the cows come home. But what is obvious is that to have a decision turn on such fine differences means that the FBI investigators themselves must have thought this wasn't an easy case to resolve. Jacob Gershman at the Wall Street Journal captured the point, and from this perspective, at least, the Clinton folks walked right up to the edge of the law.
    If there is a silver lining to this episode from a public perspective, it is that the investigation itself appears to have been conducted without fear or favor. Comey is regarded as a straight shooter by both sides of the aisle. Who can forget that as deputy attorney general for President George W. Bush, it was Comey who raced into a hospital and stopped top administration officials from persuading a sick attorney general to bless their wiretapping schemes? No one should forget that President Barack Obama appointed Comey, a registered Republican, to serve as FBI director.
    Americans' trust in public officials and public institutions has fallen abysmally, as we all know. So far as we can now tell, the country in this instance has been well served by a leader and an FBI that has been diligent, hard-working and fair. Embittered partisans will disagree, but for my book, the FBI seems to have gotten this one right.