Clinton Email Scandal Background

Did Hillary Clinton break any laws? Why won’t this story go away? We’ve learned a lot in the past few months about how information becomes classified. Hillary Clinton’s private email server continues to dominate headlines. With an FBI investigation and a former employee pleading the fifth people we’re hearing rumors about indictments, but it’s important to remember that she’s being investigated on a security matter, these are not criminal charges. The conservatives are controlling the story and Fox News is creating great, though inaccurate entertainment, so be careful. Here’s an example of how Fox News has intentionally misreported facts in order to keep this story in the headlines. We hope to clear some of this up, ask a few questions and hear from Secretary Clinton in her own words in an interview with ABC’s David Muir.

Fox Guest Pushes Debunked Claims About Clinton’s Email Use. Here are some inaccuracies:

CLAIM: Jay Sekulow: The FBI “Grabbed Control Of The Server.” On the August 27 edition of Fox News’ America’s Newsroom, the American Center for Law and Justices’ Jay Sekulow and host Gregg Jarrett discussed Clinton’s recent comments about her emails. Using the opportunity to push debunked talking points about her private use of emails in order to assert that Clinton may have committed “criminal negligence,” Sekulow claimed that the FBI had “grabbed control of the server.” [Fox News, America’s Newsroom, 8/27/15]

CLAIM: Sekulow: Clinton’s Server Was Stored “In The Bathroom” Of A Colorado Company. Later in the segment, Sekulow claimed that Clinton’s server was stored “in the bathroom” of a Colorado IT company hired by the former secretary of state to maintain her private emails. [Fox News, America’s Newsroom, 8/27/15]

CLAIM: Sekulow: Investigators Have Found “Hundreds Of Classified Emails” On Clinton’s Server. Sekulow also said, “The inspector general, of course, in just their short analysis of just some of those emails, have found hundreds of classified emails.” [Fox News, America’s Newsroom, 8/27/15]

CLAIM: Sekulow: Clinton’s Lawyer Lacked Security Clearance To Handle Emails. Sekulow said that Clinton “handed over the thumb drive of the emails to her lawyer who did not have security clearance.” [Fox News, America’s Newsroom, 8/27/15]

FACT: Clinton Voluntarily Handed Over Email Server To The FBI

ABC News: “The Server Was Handed Over Voluntarily.” On August 12, Hillary Clinton’s team arranged for the technology company Platte River Networks, which managed her email system previously, to give her private email server to the FBI. ABC News reported that the server “was handed over voluntarily” and was transferred “with no subpoena”:

Barbara Wells, a lawyer for Platte River Networks, the technology company that has managed Clinton’s email server since 2013, said the company turned the server over to the FBI Wednesday afternoon at a New Jersey facility.

She said the server was handed over voluntarily, under an agreement between Platte River and Clinton’s presidential campaign, with no subpoena. [ABC News, 8/13/15]

FACT: Clinton’s Server Was Not Kept In A Bathroom Closet

Denver Post: None Of Clinton’s Data Was Ever Stored In A Denver Bathroom. In an August 19 article, The Denver Post reported that Platte River Networks had never stored the server holding Clinton’s emails in Denver. The article explained that the server had been moved to “a New Jersey data center” in accordance with “industry best practices” and had never been “in any bathrooms”:

“There never was, at any time, data belonging to the Clintons stored in Denver. Ever,” said Dovetail Solutions CEO [and Platte River Spokesman] Andy Boian, who added that Clinton’s server was always in a New Jersey data center. “We do not store data in any bathrooms.”
[…]
“We were literally hired in June 2013,” Boian said, “and because we use industry best practices, we had (Clinton’s) server moved to a data center in New Jersey. It remained in that spot until last week,” when the FBI picked it up Aug. 12.

Platte River also is not in possession of any Clinton e-mail backups, he said.

“The role of Platte River Networks was to upgrade, secure and manage the e-mail server for both the Clintons and their staff beginning June 2013. Platte River Networks is not under investigation. We were never under investigation. And we will fully comply with the FBI,” he said. [The Denver Post, 8/19/15]

FACT: Emails Were Flagged For Review And May Not Contain Classified Information

305 Of Clinton’s Emails Have Been Flagged For Review, But Do Not Necessarily Contain Classified Material. As The Washington Post reported, the attorney for the State Department indicated that the intelligence community responsible for reviewing the emails Clinton turned over to the State Department had identified 305 emails for further review by their agencies, but they “may not ultimately conclude that the e-mails contain classified information” (emphasis added):

A State Department official told a federal judge Monday that 305 more of former secretary of state Hillary Rodham Clinton’s e-mail messages have been flagged for further review by intelligence agencies, to see whether they contain classified material that should not be released to the public.
[…]
In the status update to the court, an attorney for the State Department indicated that the reviewers from the intelligence community have identified 305 e-mails out of a sample of 20 percent of Clinton’s e-mails to send for further review by their agencies. Those agencies may not ultimately conclude that the e-mails contain classified information. [The Washington Post, 8/17/15]

State Department Spokesperson John Kirby: The Review Is “A Healthy Thing,” It “Doesn’t Mean That All 300” Emails Will Contain Classified Information. Speaking to reporters, State Department spokesperson John Kirby explained that the review of Clinton’s email is “a healthy thing. It’s a good thing. It doesn’t mean that all 300 are going to end up at some level of upgrade.” As The Washington Post reported:

“What you’re seeing here is exactly what we want to see, which is the proper care and scrutiny being applied to this,” State Department spokesman John Kirby told reporters Monday. “It’s a healthy thing. It’s a good thing. It doesn’t mean that all 300 are going to end up at some level of upgrade. I suspect some will, and I suspect some won’t.” [The Washington Post, 8/17/15]

Classification Review Is Common And “Says Nothing About Whether Classified Information” Was In The Emails. As Buzzfeed noted, reviewing documents for classification is “common in large FOIA requests that involve documents from multiple agencies, and there is a low bar for flagging such documents for consultation”:

However, such referrals are common in large FOIA requests that involve documents from multiple agencies, and there is a low bar for flagging such documents for consultation.

According to Justice Department guidance, any document found in the course of a FOIA review that “originated with another agency, or another component within their agency, or which contain information that is of interest to another agency or component” is to be referred to that other agency for consultation.

The consultation only reveals that the 305 emails either originated with an intelligence agency or contain information of interest to an intelligence agency; it says nothing about whether classified information is contained in the emails. [Buzzfeed, 8/17/15]

FACT: Clinton’s Lawyer Has “Top Secret” Security Clearance

Politico: Clinton’s Lawyer “Had ‘Top Secret’ Clearance.” In an August 25 article, Politico reported that Hillary Clinton’s lawyer, David Kendall, had “‘top secret’ security clearance granted by the State Department” so that he could review information relating to the House Benghazi investigation, and that those clearances remain active:

In a new letter to Grassley, Kendall says he got a Top Secret/Sensitive Compartmented Information clearance from the Justice Department in November 2013 and a Top Secret clearance from the State Department about a year later. Kendall says his Williams & Connolly law partner, Katherine Turner, also got a Top Secret clearance from State in December 2014.

“These State Department security clearances remain active. We obtained them in order to be able to review documents at the Department of State, to assist former Secretary Clinton in preparing to testify before the House Select Committee on Benghazi,” Kendall wrote on Monday. [Politico, 8/25/15]

Here are our questions:

If all the emails she sent were not classified at the time, but are retroactively deemed secret or top secret is that her fault?

If the State Department and CIA have different understandings of what should be labeled as classified, then who determines the outcome. This seems like a bureaucratic, organizational problem not an individual’s fault, unless there was specific protocol that was broken, which in Clinton’s situations doesn’t seem to be the case.

In this ABC News Interview, she explains some of these and again apologizes for having the private server. It’s hard not to see all of this as election -propaganda. If your boss and all your coworkers knows you’re using your gmail for work, and no one objects until your up for a promotion, that feels pretty unfair. If Clinton’s emails from home weren’t kosher, then why didn’t anyone object at the time?

I’ve heard a lot of people saying, “well, she deleted a ton of emails.” While that’s certainly true, it doesn’t seem like that is any indication of fowl play…

from The New York Times:

Mrs. Clinton has given the State Department roughly 30,000 emails from the account that she determined were government records. She has said that she deleted about 31,000 other emails that she said were personal, and Justice said that those are not government records.

Under federal record-keeping guidelines, government employees are “required to review each message, identify its value, and either delete it or move it to a record-keeping system,” the Justice Department said.

“There is no question that former Secretary Clinton had authority to delete personal emails without agency supervision — she appropriately could have done so even if she were working on a government server,” the filing said. “Under policies issue both by the National Archives and Records Administration and the State Department, individual officers and employees are permitted and expected to exercise judgment to determine what constitutes a federal record.”

The filing was made on Wednesday, the same day that a former State Department information technology employee, who also worked for Mrs. Clinton’s 2008 presidential campaign, asserted his Fifth Amendment right to remain silent in response to questions from Congress about the email account. The ex-employee, Bryan Pagliano, had been subpoenaed to appear before the House committee investigating Benghazi.

The panel wanted to question Mr. Pagliano, who helped set up the account, about Mrs. Clinton’s decision to use it, its protections and what the State Department knew about it.

Mr. Pagliano’s lawyer has contended that there is no incentive for his client to cooperate with investigations into Mrs. Clinton’s email account. Two senior Republican senators, Charles E. Grassley of Iowa and Ron Johnson of Wisconsin, said on Tuesday that they were considering giving Mr. Pagliano immunity.

In a letter to Mr. Pagliano’s lawyer, they said that they “will certainly respect and defer to any legitimate assertion of an individual’s constitutional rights.”

They added, “With that being said, the committees also need the unique information you likely have in order to exercise their oversight functions under the Constitution, which are unrelated to any potential prosecution or criminal inquiry.”

Likewise, her apology, which some are critical of as too little too late, seems more to me like “guys i’m super sorry because this has been a major pain in my ass and a major distraction from what I’d really like to be talking about.” Not to mention it’s probably a little embarrassing to have your emails out there for everyone, especially when friends say things like this about colleagues:

In one, Mr. Blumenthal offered a caustic assessment of Speaker John A. Boehner, who he said was “despised” by younger, more conservative Republicans. “They are repelled by his personal behavior,” Mr. Blumenthal wrote. “He is louche, alcoholic, lazy, and without any commitment to any principle.”

Here she is: Madame Secretary: