Arguably, she already has been by the FBI over her e-mails.
Why the e-mail scandal will continue to overshadow Clinton’s campaign
The Economist
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Reading through FBI Director James Comey’s testimony, this is a bit of a stretch, no? (You can find the full testimony here in a so-annoying-it-almost-seems-intentional format, or a tl;dr here.)
But here’s a short refresher. It’s hard to read Comey’s testimony (in which he repeatedly emphasizes that the issue isn’t whether what she did was wrong, but that from the evidence the FBI was able to gather it would be difficult to prove intent beyond a reasonable doubt) and consider it an exoneration.
Congressman Gowdy: Secretary Clinton said there was not anything marked [classified, was that true?]
Comey: That’s not true. […]
G: Secretary Clinton said, “I did not e-mail any classified material to anyone on my e-mail, there is no classified material.” That was true?
C: There was classified e-mail.
G: Secretary Clinton said she used just one device. Was that true?
C: She used multiple devices […]
G: Secretary Clinton said all work-related emails were returned to the State Department. Was that True?
C: No. We found thousands that were not returned.
[…]
Congressman Jordan: Do you see how someone could view the context of what she did, set up a private system, she alone controlled it. She kept everything on it. We now know from MS. Abedin’s deposition they did for that reason: so no one could see what was there […] Then when they got caught, they deleted what they had and they scrubbed their devices. Is that part of the context in evaluating this decision?
C: Sure, sure. And I understand what inferences can be drawn from that set of facts, of course.
[…]
Congressman DeSantis: In the top secret information you found, would somebody who is sophisticated in these matters… should it have been obvious that it was sensitive information?
C: Yes.
DS: […] This is information that clearly anybody who had knowledge of security information would know that it was classified […] How would you not know that was something that was inappropriate to do?
C: Well, I just want to take one of your assumptions about sophistication. I don’t think that our investigation established she was actually particularly sophisticated with respect to classified information.
[…]
Congressman Meadows: A reasonable person who has been a senator, a Secretary of State, a First Lady… wouldn’t a reasonable person know that that was a classified marking? As Secretary of State. A reasonable person. That’s all I’m asking.
C: Before this investigation, I probably would have said yes. I’m not so sure. I don’t find it incredible.
M: Director Comey, come on. I mean, I’ve been here only a few years and I understand the importance of those markings. So you’re suggesting that […] she had no idea what a classified marking would be? That’s your sworn testimony today?
C: Not that she would have no idea what a classified marking would be. […] A question about sophistication came up early, whether she was sophisticated enough to understand what a “C” means.
M: You’re saying the former Secretary of State is not sophisticated enough to understand a classified marking?
C: That’s not what I said.
M: That’s a huge statement.
C: That’s not what I said. You asked me, did I assume someone would know. Probably before the investigation, I would have. I’m not so sure of that answer any longer. I think it’s possible, possible, she didn’t understand what a “C” meant when she saw it in the body of the e-mail like that.
M: After years in the Senate and Secretary of State. I mean, that’s hard for me and the American people to believe, Director Comey. And I’m not questioning your analysis of it, but wouldn’t a reasonable person think that someone who has the highest job of handling classified information would understand that?
C: I think that’s the conclusion a reasonable person would draw. It may not be accurate.
[…]
Congressman Blum: Director Comey, are you implying […] that the private email servers of Secretary Clinton’s were perhaps less secure than a gmail account that is used for free by a million people around this planet?
C: Yes. And I’m not looking to pick on gmail. The weakness is individual users. But yes, gmail has full-time security staff and thinks about patching and logging and protecting their systems in a way that was not the case here.
B: […] One would think that a former United States senator, one would think that a former Secretary of State would know [that you don’t need to be a cat burglar to hack into an e-mail server and you don’t need a cloth to wipe a server clean]. Would you agree with that statement?
C: You would think, although as I said before, one of the things I learned in this case [is that] the Secretary may not have been as sophisticated as people assumed.
[…]
Congressman Chaffetz: Was there any evidence of Hillary Clinton attempting to avoid compliance with the Freedom of Information Act?
C: That was not the subject of our criminal investigation, so I can’t answer that sitting here/
Chaffetz: […] Let’s put boundaries on this — what you didn’t look at. […] You did not look at testimony that Hillary Clinton gave in the United States Congress, both the House and the Senate?
C: To see whether it was perjury? No.
Chaffetz: […] So this is an important point because I think those of us in Congress, knowing you got a criminal referral from an inspector general, thought that you were also looking at whether or not Hillary Clinton provided false testimony, which is a crime, to Congress. But you didn’t look at that.
C: Correct.