When Gallup asked Americans to say what they recall reading or hearing about Hillary Clinton in September 2015, one word – “email” – drowned out everything else. According to Gallup: “In the responses from about 750 U.S. adults familiar enough with Clinton to offer an opinion of her, the word ‘email’ came up 329 times, phrased variously as ‘email,’ ‘emails,’ ‘email scandal,’ ‘email scandals,’ ‘that email thing,’ ‘email stuff’ and ‘private emails.’” Mentions of the substantive themes Clinton has been campaigning on were virtually nonexistent.
This association is surely one of the reasons why Clinton has one of the worst favorable ratings in the history of campaign politics (second only to Donald Trump). But it is also probably a product of the fact that most people don’t understand what is going on. There are a number of explanations for why this is the case, but one, to be sure, has to do with the way in which the media has covered the controversy. As with other issues subject to ongoing investigation, reporting on the email controversy is typically thin. But, then, a flood of information (or a particularly important statement) will be released, leading to wall-to-wall coverage dominated by political partisans.
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It is, to put it mildly, extremely difficult to find reliable information about the supposed “scandal.”
That is unfortunate. And in this article, I want to change that. By the end of this article, you should have a pretty good idea of the factual issues present and the legal backdrop by which Clinton’s actions are being judged. And hopefully, you’ll never refer to this controversy as “that email thing” again. Buckle in. Grab some coffee. Let’s begin.
What We Know About the Clinton Emails
Before we get to the facts of the controversy, we need to understand the standards (the applicable laws and regulations) by which Ms. Clinton’s actions will be judged. Four laws are relevant to the Clinton email controversy: (1) the Federal Records Act, (2) the Freedom of Information Act (FOIA), (3) the National Archives and Records Administration’s (NARA) regulations, and (4) Section 1924 of Title 18 of the U.S. Crimes and Criminal Procedure Act. Here is a brief explanation of each.
First, the Federal Records Act (FRA) requires that agencies “make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency.” In essence, this statute requires that agencies hold onto official communications, including emails, and explicitly states that government employees cannot remove, deface, alter, or destroy records in the custody of the agency.
Second, the National Archives and Records Administration (NARA) regulations dictate the process by which the records should be created and maintained. The act makes clear that it applies to records made “by agency personnel in the course of their official duties, regardless of the method(s) or the medium involved.” This means that the NARA regulations apply to all forms of communication, no matter where it is located – be it on “paper, film, disk, or other physical type or form” – and regardless of whether the method of recording is “manual, mechanical, photographic, electronic, or any other combination of these or other technologies.”
Third, there is the Freedom of Information Act (FOIA). FOIA is well-known to journalists as it is meant to improve public access to agency records and information by requiring agencies “to make certain agency information available for public inspection and copying and to establish and enable enforcement of the right of any person to obtain access to the records of such agencies, subject to statutory exemptions, for any public or private purpose.”
Fourth, and finally, we come to Section 1924 of Title 18 (Section 1924). Of all the laws applicable to the Clinton email controversy, the allegation that she violated Section 1924 of Title 18 is perhaps the most serious. Section 1924 deals with the deletion and retention of classified government records. To be found in violation of Section 1924, an “officer, employee, contractor, or consultant of the United States” must “knowingly” remove “documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location.”
Keep these statutes in mind as we turn to the facts, as best we know them, of the controversy.
Here is the basic rundown of the Clinton email saga.
According to Donald Reid, the State Department’s senior coordinator for security infrastructure, Clinton and her inner circle of advisers are “dedicated [B[BlackBerry]ddicts.” That addiction posed a problem early on for Clinton at the State Department. Despite being the nation’s chief diplomat, State Department security did not permit Clinton to take her device into Mahogany Row, Clinton’s seventh-floor suite of offices at agency headquarters, out of concerns that foreign intelligence services could hack her device and use it to intercept classified communications. And so early on in her tenure, Clinton and her staff pushed to find a way that would avoid Clinton having to put her BlackBerry into a lockbox before going into her own office.
Government security experts desperately searched for a solution, but it quickly became clear that each alternative was impractical. And so, unbeknownst to federal officials, Clinton aides set up an email domain called Clintonemail.com in January 2009, just as Clinton was going through Senate confirmation hearings.
On February 17, 2009, State Department security, intelligence and technology specialists, and five officials from the National Security Agency gathered in Mahogany Row to meet with Clinton’s staff. Clinton’s chief of staff, Cheryl Mills, was briefed on the security risks associated with Clinton bringing her unsecured BlackBerry into State headquarters, and was told that security officials would continue seeking “mitigation options” to accommodate Clinton. However, neither Mills nor another Clinton aide informed the government that Clinton’s BlackBerry was digitally tethered to the private Clintonemail.com server.
The National Security Agency could have provided Clinton with a “Blackberry-like” device, like the one it had given to President Barack Obama. But it did not, and it appears that, after a very brief time, government efforts to find a solution to Clinton’s email issues were abandoned. Clinton, having found a solution on her own, continued to use her Clintonemail.com address throughout the duration of her tenure at State, for both her work and personal email, rather than using the government’s system for her State Department messages and a private account for personal affairs. Bryan Magliano, a State Department official and former campaign aide, was personally paid by Clinton to maintain her server outside his government duties.
Clinton’s final day as Secretary of State was February 1, 2013.
Shortly thereafter, in March 2013, a series of government emails was distributed online by a hacker going by the name of “Guccifer.” Among them: emails from former Clinton White House aide Sidney Blumenthal to Clinton about the security situation in Libya. The email address Blumenthal used for Clinton was [email protected] That was the first public disclosure of Clinton’s personal email account. And it would later prove to be a big red flag for journalists and lawmakers that Clinton was conducting official business on a secret account.
In May 2014, the Republican-controlled House of Representatives created the Select Committee on the Events Surrounding the 2012 Terrorist Attack in Benghazi, Libya. The stated purpose of the committee was to examine and report on the government’s actions in relation to the terrorist attack that killed four Americans, including Ambassador Chris Stevens. As part of its fact-gathering authority, the committee requested that the State Department hand over emails by government officials, including Clinton. In August 2014, after an initial review, the White House informed the State Department that records sought by the Benghazi committee included emails that were addressed to a personal email of Clinton. The State Department, in response, immediately requested that all former secretaries turn over any email dealing with official business that was sent or received during their tenure using a personal account.
The Clinton camp sifted through her emails to determine which of them was work-related, and gave thumb drives containing those work emails to Clinton’s lawyer, David Kendall, on December 5, 2014. Clinton’s aides then proceeded to wipe her personal email from the private server.
The story broke to the public on March 2, 2015, when the New York Times reported that Clinton relied on her personal email account, and not an official state.gov email address, when she ran the State Department between 2009 and 2013.
In May 2015, federal District Court Judge Rudolph Contreras, presiding over a series of pending cases related to Clinton’s email, ordered the State Department to begin producing batches of the 55,000 pages of Clinton’s work messages on a rolling basis every month. The State Department released the first batch of Clinton email on May 22, 2015.
After a battle between State Department officials, the inspectors general of the State Department, and the combined U.S. intelligence agencies over who had access to review the documents, the inspectors general told Congress they had notified the FBI that that four emails, out of 40 samples, had been found to contain classified information. It was a security – and not criminal – referral to the FBI, and it was made for counterintelligence purposes to prevent any further potential mishandling of classified information. The emails were not marked “classified” at the time they were sent and received, but the IG for the intelligence community retroactively classified them. Two of the four emails contained “top secret” information.
After months of refusing to do so, Clinton handed over her private email server (including the thumb drives) to the FBI in August 2015. High-level Clinton aides have also turned over personal emails containing business related to their government work. And since then, more than 2,000 of the emails on Clinton’s server have been retroactively classified by State (95% at the lowest level of classification), and others have been flagged for further review.
The FBI is now trying to determine two things: (1) whether a crime was committed in the handling of that classified information; and (2) whether the private server was hacked.
Application: The Law and Facts
Let’s do a little lawyering. Now that we know the legal background and the (publicly reported) facts, we can move onto the critical question: Did Clinton break the law?
We are going to consider that question in light of each relevant statute, one-by-one. But first, let’s tackle the ancillary, but still very important, issue of whether the server was hacked.
Is there any evidence Clinton’s private email server was hacked?
A popular narrative of Fox News personalities is that foreign countries and “other bad actors” hacked into Clinton’s server. In an August 5 edition of The Sean Hannity Show, for example, Fox host Sean Hannity said, “I guarantee you, you are going to wake up one day, and you’re going to find out Vladimir Putin, the Chinese, somebody has those emails.” That narrative, however, appears to have no factual basis. In fact, according to a March 3 New York Times report, records of computer security logs from Clinton’s private email server “showed no evidence of foreign hacking.”
Did Clinton violate the Federal Records Act or National Archives and Records Administration’s regulations?
For our purposes here, we can lump the FRA and NARA together, as these laws and regulations both have to do with the retention and preservation of federal communications. As stated above, the FRA mandates that government agencies hold onto official communications, including all work-related emails, and states that government employees cannot destroy or remove relevant records. Similarly, NARA requires that communications, including emails, be “preserved in the appropriate agency record keeping system.”
Of greater importance, however, is what the FRA and NARA did not require during Clinton’s tenure at State. In particular, neither FRA nor NARA contained anything prohibiting federal employees from using personal email accounts to conduct government business. Therefore, the fact that Clinton did not use an official government email account, or even that the emails were kept on a private server in her home, is immaterial. There was nothing in federal law preventing her from doing so.
According to Clinton’s campaign website, Clinton’s decision to opt to use her personal email account was “a matter of convenience.” Using the private account, per Clinton, enabled her to “reach people quickly and keep in regular touch with her family and friends more easily given her travel schedule.” This argument is difficult to take seriously. Convenience and the ability to “reach people quickly and keep in regular touch with . . . family and friends” is the entire point of email communication, and an email ending in “state.gov” would seem to be just as “convenient” as any other email address (not to mention that it wouldn’t require building, and subsequently maintaining, your own server).
But apparently, it wasn’t odd for Clinton not to have an official email. There is precedent for what occurred here.
In fact, multiple recent cabinet officials – including former Secretary of Defense Chuck Hagel and former Homeland Security Secretary Janet Napolitano – opted not to set up a government email. Clinton’s closest comparison, however, is probably Colin Powell, who served as secretary of sate between 2001 and 2005. During that time, Powell “used personal email to communicate with American officials and ambassadors and foreign leaders,” according to the New York Times’ Michael Schmidt.
All that was required, thus, is that Clinton preserved relevant documents for history. And in 2009, that meant that “ensur[i[ing[ that Federal records sent or received on such systems are preserved in the appropriate agency record-keeping system.” On this point, there is no evidence that Clinton has violated federal law.
In a statement, Clinton spokesperson Nick Merrill said that when Clinton emailed State Department employees, White House employees, or members of other departments, she used their government email address – so the government should have records of all those email already, from the recipients’ end. This raises a thorny issue, however, because that assertion will only be true so long as those members of government were using official accounts to correspond with Clinton. If they weren’t – if they also used personal accounts – we may never know if Clinton sent and withheld emails. We can only go on what Clinton’s staff assures us, and that is deeply, deeply troubling.
The law has since been updated to "prohibit the use of private email accounts by government officials unless they copy or forward any such emails into their government account within 20 days.” That would have placed Clinton in hot water. However, that amendment did not happen until November 2014 – 21 months after Clinton left government.
Did Clinton violate Freedom of Information Act?
Clinton says that she "took the unprecedented step of asking that the State Department make all my work-related emails public for everyone to see.” In total, Clinton turned over some 30,000 relevant emails, totaling 55,000 pages.
As noted above, Clinton was the filter for what was "work-related” and what was not. This, in and of itself, is troubling, but it’s not necessarily problematic. Before electronic communication, federal records were frequently filtered by individuals, who sorted their papers before handing over boxes to archivists. Nonetheless, Dan Metcalfe, who was the head of the Justice Department’s Office of Information and Privacy from 1981 to 2007, blasted Clinton in an op-ed in Politico. Metcalfe argued that it was "unprecedented” that Clinton would use private email on a private server "so that the records of her email account would reside solely within her personal control at home.”
But was it a violation of law?
Not according to the Department of Justice. According to the Justice Department, it is "sheer speculation” that "Clinton withheld any work-related emails from those provided to the Department of State.” Of particular relevance here, however, is this statement from Justice: "FOIA creates no obligation for an agency to search for and produce records that it does not possess and control.” And on this point, the department stands on firm ground.
In arguing that the federal government had no duty under FOIA to search for and produce further records, Justice pointed to a fight over files former Secretary of State Henry Kissinger sent to the Library of Congress. In the Kissinger case, Henry Kissinger caused notes and tapes of his conversations to be sent to the Library of Congress – rather than leaving them to the State Department – thereby restricting their public access. Multiple individuals and groups filed FOIA requests with the State Department, but State denied each request on the ground that they did not have possession of the documents. A court battle ensued, ending with a decision by the Supreme Court in 1980. In that case, then-Chief Justice William Rehnquist wrote:
We hold today that, even if a document requested under the FOIA is wrongfully in the possession of a party not an "agency”, the agency which received the request does not "improperly withheld” those materials by its refusal to institute retrieval action. When an agency has demonstrated that it has not "withheld” requested records in violation of the standards established by Congress, the federal courts have no authority to order the production of such records under the FOIA.
Did Clinton violate Section 1924 of Title 18?
This is the the big one, as it deals with classification rules.
During a press conference in 2015, Clinton was asked if she was aware of the security implications of using her own email. She answered this way: "I did not email any classified material to anyone on my email. There is no classified material. So I’m certainly well-aware of the classification requirements and did not send classified material.”
This statement by Clinton appears somewhat strange. Washington agencies have a propensity to classify nearly everything under the sun, a fact Clinton had to be intimately aware of after working in government for much of her professional life. In fact, the day after Clinton’s news conference, the New York Times quoted a former State Department official that it "seemed unlikely” that Clinton didn’t email at least something classified:
"I would assume that more than 50 percent of what the Secretary of State dealt with was classified,” said the former [senior State Department]fficial, who would speak only on the condition of anonymity because he did not want to seem ungracious to Mrs. Clinton. “Was every single email of the Secretary of State completely unclassifiable? Maybe, but it’s hard to imagine.
That officials statement proved prescient. In January 2016, the State Department announced it was withholding 22 emails because they contain information marked “top secret.” Clinton’s campaign immediately objected, putting out a statement demanding that the emails be released. Partisans quickly called for Clinton’s head on a criminal platter.
So, is that it? Does this mean that Clinton is liable under Section 1924?
Not exactly. Three very important points here.
First, it is important to note that a large proportion of documents that our government classifies are not actually that sensitive, and it is well known that security professionals have a reputation for erring in the direction of over-classification. This problem traces its roots to 1982, when the Reagan administration began a program of aggressive classification. The tendency waned under President Bill Clinton, but then increased dramatically under President George W. Bush, so much so that by 2004 the mere bureaucracy for classifying documents cost $7 billion per year. Early in his first term, President Obama sought to change that culture, issuing Executive Order 13526 in an effort to tilt the balance toward greater disclosure (“If there is significant doubt about the need to classify information, it shall not be classified”). There is reason to doubt that agencies have bought-in to the President’s slant, however. Even after Congress passed the Reducing Over-Classification Act of 2010, no one really thinks that over classification has been fixed. If the classification policy is not complete idiocy, it is nonetheless close to it.
What does this mean? It means that, even if classified information is in messages Clinton sent rather than confined to what she received, there is no good reason to question Clinton’s claim that she did not “email any classified material to anyone on my [personal] email.” This migh[personal] be a product of America’s problem with over-classification.
Second, it is important to know when the emails were classified. Did these emails contain highly sensitive information that Clinton should have never emailed in the first place?
Of course, it is difficult to know the answer to that unless we read the emails. But we can make an informed guess by ascertaining whether the emails were classified at the moment they were sent or whether they were classified only later. If the emails were classified at the moment they were sent, that is a pretty good sign that they contained information that is known as “born classified” – in other words, the information contained within them was generated by classified means, such as the secret U.S. bombing plans for Libya. On the other hand, it the information were classified only later, that would be a good indication that the information was largely banal and got scooped up in the bureaucratic classification process.
According to a statement by the State Department, “These documents were not marked classified at the time they were sent.” In other words, the now-classified documents do not contain information that was “born classified,” but rather fall in the gray area of documents that aren’t obviously classified at the time but are later deemed that way.
Third, we need to consider the issue of intention. According to the most recent reports from the FBI’s investigation, there is “scant evidence that the leading Democratic presidential candidate intended to break classification rules.” This is really important, and it gives us a pretty good indication of where the FBI investigation is going, because in order for Clinton to have broken the law, she must have had to intentionally given classified information to someone without authorization to have it.
The issue of intention is what makes comparisons between Clinton and the scandal involving former Gen. David Petraeus absurd. Gen. Petraeus pled guilty in March 2015 to a misdemeanor charge of handling classified material. It was revealed that he had provided notebooks with highly classified information to his biographer and mistress Paula Broadwell, whose security clearances did not permit her to receive it. That is, Gen. Petraeus intended to release classified information to an individual he knew wasn’t entitled to have it, and break classification rules in the process. Clinton, on the other hand, never intended to break classification rules, and never initiated the release of classified material.
A word of caution here, however. Take this report – and, really, every “report” about the Clinton email controversy – with a hefty grain of salt. In nearly every instance, the sources of these articles are anonymous U.S. officials who are speaking on condition of anonymity because they aren’t permitted to divulge information to the press (irony here?).
That doesn’t mean the information isn’t accurate. But in any case that involves an ongoing investigation, you need to be skeptical about each piece of information released to the public and the motivations behind each source. Which is why it’s so important to acknowledge . . .
What We Don’t Know About the Clinton Emails
At a congressional hearing in February, FBI director James Comey stressed that he wanted the Clinton matter treated the same was as all other cases. Comey stated: “What I can assure you is that I am very close personally to that investigation to ensure that we have the resources we need, including people and technology, and that it’s done the way the FBI tries to do all of it’s work: independently, competently and promptly. That’s our goal, and I’m confident that it’s being done that way, but I can’t give you any more details beyond that.”
What’s clear from Comey’s remarks is that he wants any information to be kept tightly to the vest and that he will not tolerate leaks. And thus far, Comey’s plan seems to be working.
There are some things we do know about this controversy. We know that Clinton used a private e-mail server while serving as Secretary of State. We know that she is currently under FBI investigation for doing so. But we can’t be confident that we know much else. In fact, if there is anything that needs to be understood here, it is this: nobody really knows what is going on with the Clinton FBI investigation other than the FBI itself, and many of the “facts” that have been reported are probably either half-true or wildly inaccurate.
And that probably includes some of the facts cited above.
Consider, for example, how the media reported on the number of FBI agents assigned to work on the investigation. This is a relatively benign issue. It is indicative of nothing and tells us nothing about the investigation. But the media completely botched it.
Back in January, Fox News reported that approximately 100 FBI Agents had been assigned to the case full-time, with as many as 50 more being called into help on temporary assignment. Soon after, the Washington Examiner released a similar report, quoting a former U.S. Attorney who said, “There are now, I am told, 150 agents working on this case,” which the attorney described as “a very unusually high number” of investigators. Then in March, a widely read piece by the Washington Post alleged that 147 FBI Agents had been assigned to the investigation.
147 Agents! That’s a very specific number. It must be accurate. Right? Wrong.
The day after the Washington Post piece was published, the newspaper issued a correction, saying the actual number of agents working the investigation was less than 50. This, it seems, gave other news outlets license to go back to their “sources close to the investigation” to get their own scoop. First out of the gate was NBC News, which cited an anonymous “former federal law enforcement official” who said that “[t]here are currently about 12[t]I Agents working fully-time on the case.” Then came Al-Jazeera America, which reported that there were approximately 50 FBI agents on the case. And finally, Time Magazine reported that the FBI assigned approximately 20-30 agents to the case.
The lesson here: Be careful about media outlets who have come out with “scoops” claiming to know details of the examination. Almost everything we’ve read abut this case is speculation which, upon closer examination, is often sketchy. As Charlie Munger has stated, “[a]cknowledging what you don[a]know is the dawning of wisdom.”
What All of This Means
Donald Trump will lambast Clinton for committing terrible crimes. Other Republicans and pundits on Fox News and conservative talk radio will chime in to agree. And the public will continue to be passed information about the email “scandal” with little or no context or correction. When that happens, come back to this article, so that you can be reminded of the bottom line here: there is absolutely no evidence that Clinton broke the law or jeopardized national security. None. Zero.
Acknowledging that, however, is very different from saying that Clinton violated the spirit of the law, because she certainly did.
FRA, NARA, and FOIA are meant to foster and promote greater transparency within our government. These laws ensure that government records are preserved for both historical and investigative purposes. They preserve our country’s most important moments, and they help us hold our leaders accountable.
When it comes to email communication, our expectation must be that public servants use their official email accounts. Hillary Clinton’s decision to set up and exclusively use a private email account on a private email server runs counter to that expectation. Only the credulous would believe that this was done out of “convenience.” Rather, it was almost assuredly done to circumvent federal record-keeping requirements that are meant to keep government transparent.
And lest you think that the email scandal looks bad only now in hindsight, it should have looked much worse to Clinton in 2009.
Let’s go back, for a moment, to June 2007. A congressional oversight committee was investigating the Bush administration over allegations that it had fired US attorneys for political reasons.
As part of investigation, the oversight committee asked the Bush administration to produce relevant emails. But it turned out that administration officials routinely conducted government business via private email. In this case, “routinely” amounted to millions of emails worth of government business; and alarmingly, the administration had apparently deleted all of the email archives.
The practice – which was used by White House officials as senior as Karl Rove – certainly appeared to be designed to circumvent oversight requirements. And it worked as expected. As a result of the widespread practice, the congressional oversight committee was prevented from accessing 22 million email messages that might have incriminated the White House.
Oversight committee chairman Henry Waxman accused the Bush administration of “using nongovernmental accounts specifically to avoid creating a record of the communications.”
The scandal came to a head at the end of the Bush administration, but it dragged well into Obama’s first year in office. And as the newly appointed Secretary of State, it is inconceivable that, at the same time Clinton decided to use a personal email address for official government business, she was unaware of the scandal Bush officials had created by doing the same thing.
Regardless which way you slice it, Clinton’s actions are difficult to defend, even for her most ardent supporters. Clinton should have known better, and there will continue to be political consequences for her actions, even if there are no legal consequences. And that criticism is deserved.
Clinton’s initial response to the controversy only reinforced the notion that she is not honest and trustworthy. It was not until months later, after she got flak from Republicans and Democrats alike, that Clinton began to apologize for the arrangement. In an interview with ABC News Tuesday, Clinton conceded she’d messed up.
“I do think I could have and should have done a better job answering questions earlier. I really didn’t perhaps appreciate the need to do that,” she said. “What I had done was allowed, it was aboveboard. But in retrospect, as I look back at it now, even though it was allowed, I should have used two accounts: one for personal, one for work-related emails. That was a mistake. I’m sorry for that. I take responsibility.”
But here’s the thing: Clinton’s actions and response perfectly fit within her character.
After being in the political spotlight for decades, Clinton is acutely aware that every expressed thought can be used by her political enemies against her. It’s no revelation, then, that Clinton would do anything – within the bounds of the law – to prevent her adversaries from accessing her emails. It’s no revelation that Clinton and her insular group of confidants would underestimate the risk that she would be caught. And it’s no revelation that Clinton would respond to getting caught by pointing her finger at Republicans.
In other words, the email controversy may be the newest Clinton “scandal.” But it really doesn’t tell us anything else about Clinton that we didn’t already know.
Which brings us to the most important point about the entire Clinton email controversy: It won’t radically alter your opinion of her.
For Clinton supporters, the controversy only reinforces the notion that Clinton is a shrewd politician who works aggressively within the rules to outmaneuver her political opponents. For Clinton detractors, the controversy is further proof that Clinton is dishonest and untrustworthy, and, as a consequence, unfit to lead this country as president. If you’re part of the former group, you’ll likely be voting for Clinton regardless of the FBI investigation; if you’re part of the latter group, it’s not like you were going to vote for her anyway.
As with many issues in politics, however, the truth probably lies somewhere in between, caught in a mud storm of confusion. You can emerge from the mud storm, however, by keeping your head above the fray. And, to be quite honest, to withhold final judgment until the FBI concludes its investigation.
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