While the primaries have dominated the political coverage, Hillary Clinton has more to fear than Bernie Sanders’ sweep in the caucuses on Saturday. Both The Washington Post and The Los Angeles Times had articles which show that Clinton risks paying a political, if not legal, price for her conduct as Secretary of State. The scandal risks weakening her in a general election campaign.
The Washington Post went back to the start to explain How Clinton’s email scandal took root. Some excerpts:
The vulnerability of Clinton’s basement server is one of the key unanswered questions at the heart of a scandal that has dogged her campaign for the Democratic presidential nomination.
Since Clinton’s private email account was brought to light a year ago in a New York Times report — followed by an Associated Press report revealing the existence of the server — the matter has been a source of nonstop national news. Private groups have filed lawsuits under the Freedom of Information Act. Investigations were begun by congressional committees and inspector general’s offices in the State Department and the U.S. Intelligence Community, which referred the case to the FBI in July for “counterintelligence purposes” after determining that the server carried classified material…
One hundred forty-seven FBI agents have been deployed to run down leads, according to a lawmaker briefed by FBI Director James B. Comey. The FBI has accelerated the investigation because officials want to avoid the possibility of announcing any action too close to the election…
Politico subsequently posted a story claiming that the reports of 147 FBI agents being assigned to investigate is an exaggerated number.
The Washington Post continued:
From the earliest days, Clinton aides and senior officials focused intently on accommodating the secretary’s desire to use her private email account, documents and interviews show.
Throughout, they paid insufficient attention to laws and regulations governing the handling of classified material and the preservation of government records, interviews and documents show. They also neglected repeated warnings about the security of the BlackBerry while Clinton and her closest aides took obvious security risks in using the basement server…
The State Department security officials were distressed about the possibility that Clinton’s BlackBerry could be compromised and used for eavesdropping, documents and interviews show.
After the meeting on Feb. 17 with Mills, security officials in the department crafted a memo about the risks. And among themselves, they expressed concern that other department employees would follow the “bad example” and seek to use insecure BlackBerrys themselves, emails show…
In early March, Assistant Secretary for Diplomatic Security Eric Boswell delivered a memo with the subject line “Use of Blackberries in Mahogany Row.”
“Our review reaffirms our belief that the vulnerabilities and risks associated with the use of Blackberries in the Mahogany Row [redacted] considerably outweigh the convenience their use can add,” the memo said.
He emphasized: “Any unclassified Blackberry is highly vulnerable in any setting to remotely and covertly monitoring conversations, retrieving e-mails, and exploiting calendars.”
Nine days later, Clinton told Boswell that she had read his memo and “gets it,” according to an email sent by a senior diplomatic security official. “Her attention was drawn to the sentence that indicates (Diplomatic Security) have intelligence concerning this vulnerability during her recent trip to Asia,” the email said.
But Clinton kept using her private BlackBerry — and the basement server…
The article described the incident in which there were problems sending material which was on the classified network. Clinton instructed Jacob Sullivan to remove the headings:
“They say they’ve had issues sending secure fax. They’re working on it,” Sullivan wrote his boss.
Clinton told him to take a shortcut.
“If they can’t, turn into nonpaper w no identifying heading and send nonsecure,” she said.
The article went on to describe how Colin Powell’s handling of email and classified information was significantly different from Clinton’s, debunking one of the common defenses of Clinton’s actions. (This is also a poor defense for Clinton as repeating improper actions committed under Bush would hardly justify her actions.)
The article also debunked Clinton’s claims that the classified material in the email was classified retroactively:
…Her statement appears to conflict with a report to Congress last year by inspectors general from the State Department and the group of spy agencies known as the Intelligence Community. They made their report after the discovery that four emails, from a sample of 40 that went through her server, contained classified information.
“These emails were not retroactively classified by the State Department,” the report said. “Rather these emails contained classified information when they were generated and, according to IC classification officials, that information remains classified today. This classified information should never have been transmitted via an unclassified personal system.”
…Twenty-two emails discovered later were deemed so highly classified that they were withheld in their entirety from public release. “They are on their face sensitive and obviously classified,” Rep. Chris Stewart (R-Utah), a member of the House Permanent Select Committee on Intelligence, told The Post. “This information should have been maintained in the most secure, classified, top-secret servers.”
Reuters had also explained last summer how classified information is “born classified” based upon its content, regardless of whether it is labeled as classified.
Clinton’s arguments that she did not do anything wrong were next debunked in The Washington Post story:
Specialists interviewed by The Post said her practices fell short of what laws and regulations mandated. Some of those obligations were spelled out a few months before Clinton took office in National Archives and Records Administration Bulletin 2008-05, which said every email system was supposed to “permit easy and timely retrieval” of the records.
The secretary of state’s work emails are supposed to be preserved permanently. In addition, rules also mandated that permanent records are to be sent to the department’s Records Service Center “at the end of the Secretary’s tenure or sooner if necessary” for safekeeping.
Under Title 18, Section 2071, it is a misdemeanor to take federal records without authorization, something that is sometimes referred to as the “alienation” of records. The law is rarely enforced, but a conviction can carry a fine or imprisonment.
Jason R. Baron, a former director of litigation at the National Archives and Records Administration, told the Senate Judiciary Committee last year he believed that Clinton’s server ran afoul of the rules. In a memo to the committee, Baron wrote that “the setting up of and maintaining a private email network as the sole means to conduct official business by email, coupled with the failure to timely return email records into government custody, amounts to actions plainly inconsistent with the federal recordkeeping laws.”
The article concludes with concerns about how the email was used to sidestep requests for information under the Freedom of Information Act:
Last month, in a hearing about a Judicial Watch lawsuit, U.S. District Judge Sullivan cited that email as part of the reason he ordered the State Department produce records related to its initial failures in the FOIA searches for Clinton’s records.
Speaking in open court, Sullivan said legitimate questions have been raised about whether Clinton’s staff was trying to help her to sidestep FOIA.
“We’re talking about a Cabinet-level official who was accommodated by the government for reasons unknown to the public. And I think that’s a fair statement: For reasons heretofore unknown to the public. And all the public can do is speculate,” he said, adding: “This is all about the public’s right to know.”
Bringing matters to the present, The Los Angeles Times reports that the review is entering a new phase:
Federal prosecutors investigating the possible mishandling of classified materials on Hillary Clinton’s private email server have begun the process of setting up formal interviews with some of her longtime and closest aides, according to two people familiar with the probe, an indication that the inquiry is moving into its final phases.
Those interviews and the final review of the case, however, could still take many weeks, all but guaranteeing that the investigation will continue to dog Clinton’s presidential campaign through most, if not all, of the remaining presidential primaries.
Reuters had a story last week on Bryan Pagliano, the Clinton staffer who set up the private server and has received immunity:
The technician, Bryan Pagliano, was running the off-grid email server that Clinton had him set up in her New York home for her work as secretary of state. But even as years passed, Pagliano’s supervisors never learned of his most sensitive task, according to the department and one of his former colleagues.
Pagliano’s immediate supervisors did not know the private server even existed until it was revealed in news reports last year, the colleague said, requesting anonymity because of a department ban on unauthorized interviews.
These articles do cast doubt on whether Clinton will be prosecuted for her actions. In reviewing the arguments, it is notable that higher level officials do appear to be held to quite different standards than lower level officials, who have been prosecuted for doing less than Clinton, and not necessarily with any evidence of intent.
It should also be kept in mind that the mishandling of classified information is only one part of the scandal. There are also serious questions regarding violations of government policies to promote transparency, including new policies initiated in the Obama administration in response to the abuses under George W. Bush. While criminal penalties were not initiated for such violations of the regulations until after Clinton left office, the matter should be of considerable concern for anyone interested in open government.
Regardless of whether Clinton is prosecuted, this will cast considerable doubt on her integrity during a political campaign. The fact checking sites have repeatedly stated that Clinton’s statements have been false regarding the email on many points. The Washington Post Fact Checker has given Clinton and her defenders Three Pinocchios for their claims on at least two separate occasions (here and here). The top Freedom of Information Act official at the Justice Department has stated that Clinton was in violation of the rules and the State Department’s top Freedom of Information Act officer has called her use of a private server unacceptable. Not only did she violate rules regarding use of private email, she also destroyed around 30,000 email messages and edited others, which includes email related to Libya and Terrorism and was not personal email as she previously claimed.
The political, and potential legal, problems, are not limited to the email. Further ethical concerns regarding Clinton are raised by her failure to comply with an agreement that contributions to the Clinton Foundation be disclosed when she was Secretary of State. Clinton failed to disclose over a thousand donors, including contributions from parties with business before the State Department. The Foundation also failed to disclose many of these on their tax forms and was caught lying about this issue.
We also know that Bill Clinton saw an unprecedented increase in payments for giving speeches when Hillary became Secretary of State from organizations and countries which subsequently received favorable intervention from Clinton. His speaking fees jumped from 150,000 to typically 500,000, and as high as 750,000.
Bernie Sanders has avoided these matters in his campaign for the nomination. It is a safe bet that if Clinton is the nominee, any Republican opponent will bring up these scandals. In addition, the Congressional committees investigating these matters will time their actions for maximum political impact during the general election.
