Why FBI Director Comey didn't recommend prosecution for Clinton

Comey owes DOJ more: Hosko

FBI Director James Comey likely declined to recommend Hillary Clinton be prosecuted for handling classified information on a private email server because he was not confident prosecutors would be able to secure a conviction, former FBI Assistant Director Ron Hosko said Wednesday.

However, Hosko acknowledged critics of the decision will struggle with how Comey interpreted a federal statute under which Clinton could have possibly been prosecuted for gross negligence in handling sensitive material.

"Jim Comey is a man of conscience," Hosko, who has worked under Comey, told CNBC's "Squawk Box" on Wednesday. "He has impeccable morality and ethics. His arrow points true north."

But Comey is also a former prosecutor, Hosko said, and because investigators did not find intent to cause harm or reap personal gain from the transmission of classified documents, he did not see a path to a successful prosecution.

"For an indictment you need probable cause, but prosecutors and investigators are looking for far more. You're looking down the road at a substantial likelihood of success at trial that's beyond a reasonable doubt," he said.

Indeed, Comey said Tuesday "no reasonable prosecutor" would pursue such an action.

Despite his defense of Comey's character and justification for why he didn't recommend prosecution, Hosko said he believes the elements for indictment were clearly met based on a cold read of the federal statute to which Comey referred.

FBI Director James Comey makes a statement at FBI Headquarters in Washington, Tuesday, July 5, 2016. Comey said 110 emails sent or received on Hillary Clinton's server contained classified information.
Cliff Owen | AP

In prepared statements, Comey said Tuesday, "Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information."

The sticking point is Comey's use of the phrase "extremely careless," Hosko said.

"To me that has the same DNA as gross negligence that the statute requires. Those are identical twins," he said.

Under the statute, it is a felony to mishandle classified information intentionally or through gross negligence. Hosko said Comey seemed to introduce an element of intent that is not enshrined in that statute.

The FBI found no evidence that Clinton or her staff intentionally deleted emails from the server in order to conceal them, or that her attorneys engaged in intentional misconduct while sorting the messages for review, Comey said.

Ultimately, Comey put the issue back into the court of public opinion, Hosko said.

"He put that burden back on the electorate to say, 'Look, you're the voter. Is this someone whose judgments you should trust?'" Hosko said.