The WikiLeaks emails prove that Obama knew that Hillary was using a private email system.

As an experienced prosecutor, FBI director Comey knew that Hillary would argue in her defense that Obama knew about her using the private unsecured email system.  Obama did not stop her, did not object, and corresponded with Hillary on her system.  Given these facts, Hillary would argue she did not have the intent to violate the statutes because her superior, the command in chief, the president, conversed with her on her private email system.  Hillary would argue, How can I have the intent to violate the law when the president knows I use the private email system he uses to contact me?  Leaving aside that it is Hillary making the argument, it is a reasonable and powerful defense against the charges.

Comey recited the facts sufficient to establish a prima facie case that Hillary violated the law.  This should have been enough to recommend indictment because one can infer intent from the facts.  The facts were clear enough to warrant an inference that Hillary acted with intent.  It is then up to a judge or jury, the trier of facts, to draw the inference.  The trier of facts may or may not draw the inference, but the facts are sufficient to warrant an indictment.  But Comey must have known that Obama knew about her use, and that Obama did not object or tell Hillary to stop.  The FBI review of the emails must have shown emails to and from Obama and aides to Obama.  Accordingly, Comey would have concluded that Hillary did not have the criminal intent because she believed that Obama was OK with her use of a private unsecure email server.

A review of Comey's statement of July 5 shows (emphasis added):

1. "From the group of 30,000 e-mails returned to the State Department, 110 e-mails in 52 e-mail chains have been determined by the owning agency to contain classified information at the time they were sent or received. Eight of those chains contained information that was Top Secret at the time they were sent; 36 chains contained Secret information at the time; and eight contained Confidential information, which is the lowest level of classification. Separate from those, about 2,000 additional e-mails were "up-classified" to make them Confidential; the information in those had not been classified at the time the e-mails were sent."

2. "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.

For example, seven e-mail chains concern matters that were classified at the Top Secret/Special Access Program level when they were sent and received. These chains involved Secretary Clinton both sending e-mails about those matters and receiving e-mails from others about the same matters. There is evidence to support a conclusion that any reasonable person in Secretary Clinton's position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation[.]"

3. "None of these e-mails should have been on any kind of unclassified system, but their presence is especially concerning because all of these e-mails were housed on unclassified personal servers not even supported by full-time security staff, like those found at Departments and Agencies of the U.S. Government – or even with a commercial service like Gmail."

4. "We also assess that Secretary Clinton's use of a personal e-mail domain was both known by a large number of people and readily apparent[.]"

Comey, as a reasonable prosecutor, must have concluded that Hillary would use Obama as her prime defense witness to show that she did not have criminal intent.  Hillary would blame Obama. Obama made her do it.