If the FBI had decided to prosecute Clinton, that would have pretty much decided the presidential election. We’ve seen elsewhere how prosecutions can derail campaigns. So, does this decision set a legal precedent for Federal elections? How about state-level elections?
From my experience working with classified info (5 years military active duty, 10 years military civilian), this is the normal precedent. Mishandling classified info is incredibly common, and only prosecuted if the motive behind it is for spying, for profit, or to help a journalist with a story. Laziness or carelessness are not prosecuted – rather, individuals who make a mistake are re-trained, and if it becomes a habit, they might be fired (and/or lose their clearance). Since there’s no evidence Hillary’s email mistakes were made for spying, for profit, or to help a journalist, then they won’t be prosecuted.
In a nutshell: The FBI investigates, the Attorney General prosecutes. This case was unusual largely because the AG announced that she would follow the FBIs recommendation rather than making the choice herself.
To add to what dracoi said, see iiandyiiii’s post, which is consistent with all of the reporting on the subject.
I do think that reporting misses one key point, which is the evidence that Clinton used the home server as a way to avoid FOIA. She did not, for example, inform the State Department FOIA people that she had FOIA-able records on that server. If that was indeed the motivation–and IIRC, Comey’s report didn’t say much either way–then the case starts to look more like the ones that get prosecuted, like Petraeus.
And because the AG indicated this before the FBI had completed its investigation & recommendations. It’s quite common for prosecutors to follow the recommendations of the investigators, probably done most of the time. But usually not until after the investigation is completed.
I must have missed the evidence that Clinton used the server to avoid FOIA though many people speculated that was her motivation.
FOIA isn’t a criminal statute. Violations would not be investigated by the FBI. FOIA merely gives agencies the obligations to keep and disclose certain documents and, importantly, gives people the right to sue agencies that fail to disclose documents that are supposed to be public.
David Petraeus was convicted of intentionally providing classified information to a person not entitled to have that information. His conduct looks nothing to me like Hillary Clinton’s email.