2008 December: President Obama nominates Hillary Clinton for secretary of state. 2009 Jan. 13: Reports say the clintonemail.com domain was established. Jan. 21: Senate confirms Clinton as secretary of state. March 18: Clinton will later name this as the date she began using a private server for government business. 2012 Sept. 11: Islamic extremists launch […]
The following is a news commentary and analysis
It’s a felony to mishandle classified information either intentionally or in a grossly negligent way.
It’s a misdemeanor to knowingly remove classified information from appropriate systems or storage facilities.
On these points, there’s unanimity.
There’s not so much unanimity when it comes to how one interprets “intention,” “knowingly” and “gross negligence.”
Here’s a breakdown of FBI Director James Comey’s findings in explaining why Hillary Clinton won’t be prosecuted in the infamous email case.
- Did Clinton improperly use personal email and systems for government work? Yes.
- Was classified information improperly stored on Clinton’s personal systems? Yes, although she claimed the opposite.
- Was classified information improperly transmitted through Clinton’s personal systems? Yes, about 2,000 emails, although she claimed the opposite.
- Was any of the information marked classified at the time it was sent or received? Yes, although she claimed otherwise. (Though the FBI could not recover all of Clinton’s emails, among the ones it reviewed, 110 e-mails in 52 e-mail chains contained classified information, including Top Secret, at the time they were sent or received.)
- Did the presence of the classified emails violate protocol? Yes. The FBI noted, “None of these e-mails should have been on any kind of unclassified system.”
- Should she have known better? Yes.
- Were Clinton and her colleagues careless in their handling of the public’s classified information? Yes, the FBI found Clinton and her colleagues were “extremely careless” in their handling of “very sensitive, highly classified information.” But the FBI did not find “clear evidence” that they intended to violate laws.
- Were Clinton’s systems vulnerable, thus exposing the classified information? Yes, the FBI found Clinton used systems that were even less secure than “a commercial service like Gmail.”
- Did Clinton’s actions jeopardize classified information? Yes.
Was Clinton’s email information, including classified material, likely accessed by hostile forces? Yes, because the FBI found, Clinton “extensively” used her personal, unsecure email systems “in the territory of sophisticated adversaries.” Additionally, the FBI found, “hostile actors gained access to the private commercial e-mail accounts of people with whom Secretary Clinton was in regular contact from her personal account.”
- Did Clinton likely destroy public, work-related emails that are unrecoverable? Yes.
- Did Clinton’s lawyers “clean” their devices in a way to “preclude complete forensic recovery”? Yes.
- Was the FBI able to reconstruct the mysterious electronic sorting of records done by Clinton’s lawyers? No. The FBI says it does not have “complete visibility” but assumes there was no “intentional misconduct.”
- Is there evidence that Clinton potentially violated laws on handling of classified information? Yes, but the FBI says, “our judgment is that no reasonable prosecutor would bring such a case.”
- Would someone in similar circumstances face consequences? Yes, the FBI says such individuals have often been “subject to security or administrative sanctions.” But the FBI said that’s not what it was deciding “now.”
Beyond the FBI Probe
There were further important public issues not addressed by the FBI today. They involve public records laws and the cost borne by the public, due to Clinton’s failures.
Did Clinton allegedly violate public records laws? Yes, through use of the private servers and devices, failure to maintain required public records, temporary and permanent deletion of many records, and failure to fully disclose the records when asked.
Did Clinton turn over all her public work records to the State Department in 2014 when her public servers were discovered? No.
Did Clinton make all of the public’s records available when requested under Freedom of Information (FOI) law (as far back as 2012 or even earlier)? No.
Have all those records now been provided to FOI requesters? No.
Due to Clinton’s actions, the FBI said that recovering documents and piecing together facts was “a painstaking undertaking, requiring thousands of hours of effort.” And your tax dollars paid for it.
It’s Not All About Hillary
In some respects, the implications of the FBI’s findings aren’t about Hillary– they’re about the rest of us. As a layman, here’s my interpretation:
Any federal employee is now free, despite what the law may say, to make personal arrangements to communicate the public’s business using private servers, administrators, accounts and devices. They may send and receive classified material using these servers, even in hostile territory subject to hacking by sophisticated adversaries. They may routinely destroy the public-owned records they create–some of them permanently–and, if their actions are discovered, they may provide false public statements about their content. They are free to violate public records law and fail to turn over public records upon request (making Freedom of Information law meaningless and toothless). And prosecutors will view questionable acts in the most innocent light and one that’s the most favorable to the subject of the investigation. Unless they can find what they term “clear evidence” of “intent to violate laws,” you’re off the hook!
Read FBI Director Comey’s statement: https://www.fbi.gov/news/pressrel/press-releases/statement-by-fbi-director-james-b.-comey-on-the-investigation-of-secretary-hillary-clintons-use-of-a-personal-e-mail-system
Of course, maybe that isn’t the takeaway. Maybe things would turn out differently if the circumstances were the same, but the subject of the investigation were different.
Last year, a Naval Reservist who mishandled classified information was prosecuted, fined and his security clearance permanently revoked, though “The investigation did not reveal evidence that [he] intended to distribute classified information to unauthorized personnel.”
Read the FBI case against Nishimura: https://www.fbi.gov/sacramento/press-releases/2015/folsom-naval-reservist-is-sentenced-after-pleading-guilty-to-unauthorized-removal-and-retention-of-classified-materials