The FBI's top lawyer in 2016 thought Hillary Clinton and her team should have immediately realized they were mishandling "highly classified" information based on the obviously sensitive nature of the emails' contents sent through her private server. And he believed she should have been prosecuted until "pretty late" in the investigation, according to a transcript of his closed-door testimony before congressional committees last October.
Former FBI general counsel James Baker said high-level officials at the bureau were "arguing about" whether to bring charges against Clinton, "I think, up until the end" -- and he initially thought Clinton's behavior was "alarming" and "appalling."
Pursuant to the "statutes that we were considering at the time," Baker told lawmakers, it was "the nature and scope of the classified information that, to me, initially, when I looked at it, I thought these folks should know that this stuff is classified, that it was alarming what they were talking about, especially some of the most highly classified stuff.”
Fox News has confirmed portions of the congressional transcript of Baker's remarks. Baker's testimony was considered credible by those in the room.
Clinton, in a televised interview on July 3, 2016, claimed that she had "never received nor sent any material that was marked classified" using her personal email system. She later said she regretted using the setup after it emerged that her private servers contained classified materials from Special Access Programs, or SAP --- considered some of the most closely held U.S. government secrets.
The revelations from Baker follow a December letter by former House Oversight Committee Chairman Trey Gowdy and former House Judiciary Committee Chairman Bob Goodlatte, who said the decision not to prosecute Clinton was not unanimous.
In July 2016, then-FBI Director James Comey publicly announced that Clinton had been "extremely careless" in handling classified information, but insisted that "no reasonable prosecutor" would bring a case against her.
Comey said that "although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case." He added that "prosecutors necessarily weigh a number of factors before bringing charges," including "the strength of the evidence, especially regarding intent."
In testimony later that month, Comey told lawmakers, "We did not find evidence sufficient to establish that she knew she was sending classified information beyond a reasonable doubt to meet the intent standard."
Federal law states that "gross negligence" in handling the nation’s intelligence can be punished criminally with prison time or fines, and there is no requirement that defendants act intentionally or recklessly.
Nevertheless, Baker suggested that high-level officials convinced him that Clinton did not have the necessary "knowledge or criminal intent" to be charged.
"I have reason to believe that you originally believed it was appropriate to charge Hillary Clinton with regard to violations of law — various laws with regard to the mishandling of classified information," a lawmaker asked Baker, according to the transcript. "Is that accurate?"
"Yes," Baker replied.
"And I understood that, that you had to be persuaded, and stated as a basis that ultimately you were persuaded there was a lack of evidence establishing knowledge or criminal intent, correct?" the lawmaker asked.
Again, Baker replied, "Yes."
Pressed on when exactly he was changed his mind, Baker responded: "Sorry. Pretty late in the process, because we were arguing about it, I think, up until the end."'
Asked about the testimony, Baker's lawyer declined to comment for this report.
Internal FBI memos released in 2017 showed that language was softened between an early draft and the final copy of Comey’s July 2016 statement closing out the Clinton email case. Originally, Comey accused the former secretary of state of being “grossly negligent” in handling classified information in a draft dated May 2, 2016, but that was modified to claim that Clinton had been “extremely careless” in a draft dated June 10, 2016 -- a significant legal distinction.
In an early draft, Comey also said it was “reasonably likely” that “hostile actors” gained access to Clinton’s private email account. That was changed later to say the scenario was merely “possible.”
"Well, I know there’s been a lot of public discussion about that," Baker said, referring to Comey's memos. "I believe if I had been persuaded that she had the intent, I would have argued that vociferously with him [Comey] and maybe changed his view. And I think he would have been receptive to changing his view even after he wrote that thing.”
He added: "My original belief — well, after having conducted the investigation and towards the end of it, then sitting down and reading a binder of her materials, I thought that it was alarming, appalling, whatever words I said, and argued with others about why they thought she shouldn’t be charged."
Baker acknowledged, "I was struggling with the facts about even just ascertaining what literally did she know and what was reasonable to infer about what she knew."
Comey himself has come under scrutiny for potentially mishandling classified information. In 2017, the Wall Street Journal reported that the fired FBI Director gave four of his seven memos documenting his private interactions with Trump -- which he has described as a kind of "diary" -- to two lawyers and friend Daniel Richman, a professor at Columbia Law School.
Richman provided at least one memo to the New York Times, and Comey testified his intention was to kickstart Special Counsel Robert Mueller's Russia investigation.
The Journal reported that at least two of those Comey memos have been to found to contain material now deemed classified, prompting a Justice Department inspector general investigation. Comey redacted classified information in one memo before giving it to Richman, while officials later determined that a separate memo contained unredacted classified information after Comey had sent it.
Comey later revealed in closed-door testimony with House Republicans last December that he deliberately concealed an explosive memo he created about his one-on-one Oval Office meeting with Trump in February 2017 from top Department of Justice officials.
"James Comey’s Memos are Classified, I did not Declassify them," Trump tweeted last April. "They belong to our Government! Therefore, he broke the law!"
Asked by Fox News in December whether he had mishandled classified information, and whether the FBI had conducted a classified containment operation after Comey sent the memos to his lawyers to limit the spill of information, Comey declined to answer.
"I'm not going to talk about something like that," Comey answered. "I'm not going to talk about it one way or another."
But there was a time when Comey, by his own accounting, didn't think of himself as the kind of person who would leak information behind the president's back.
In a Jan. 28, 2017, dinner with Trump in the White House's Green Room, Comey wrote in a since-released memo that he told the president: "I don't do sneaky things, I don't leak, I don't do weasel moves."