I’m really tired of hearing about the Clinton email scandal. My problem with the whole debacle is that history, political posturing, and obfuscation have rendered an important point of public inquiry an unmitigated partisan mess. But however messy the whole thing may be, it still matters. It’s a significant issue in terms of legal accountability and the judgment of a would be president. So let’s roll up our sleeves and sift through the bullshit.
Here are the basics: during her tenure as Secretary of State, Clinton opted to use a personal email address connected to a private server in her home to conduct official state business. This revelation, first brought to light by the hacking of Clinton confidante Sid Blumenthal’s personal email account in 2013, has since snowballed.
The first concern was one of record keeping. Though Clinton was not, at the time of her service, required to use a state email address, she was required to submit all official correspondence taking place via a personal email account for record keeping. Clinton had failed to do so, which led to incomplete resolution of FOIA requests on numerous occasions. She did eventually release the cache of work related emails, albeit after significant delay and the deletion of more than half the emails housed on her server on the grounds that they were personal in nature.
This was dumb. Like, obviously dumb. Though John Kerry is the first Secretary of State to actually use a government account for email, Clinton should have known better than to conduct business the way she did. She’s no green political operative. She’s a seasoned public servant who has spent the past several decades walking around with a target on her back. She had to know, especially given her political aspirations, that this could only serve to accentuate that target with neon lights. The deletion of those emails without any sort of oversight was exactly what Republicans were looking for — something that could be made to seem sneaky or suspicious, furthering the narrative that Clinton is not trustworthy.
It only got worse from there.
Another major concern revolving around Clinton’s use of a personal email address to discuss state business is that she may have been transmitting classified information along unsecured lines, presenting a risk to national security. Initially Clinton claimed that this hadn’t taken place. She insisted she had done nothing wrong, and said she would not be turning over her private server for further scrutiny. Her reasoning for using the account was explained as a function of convenience. She stated that she wanted the public to read her emails and had requested that the State Department release them. All in all, the response seemed like a giant shrug in hopes of the whole thing disappearing.
To be fair, many of the emails that came out were innocuous. Some of them were downright entertaining. Many a joke was made about her request that The Good Wife be recorded for later viewing. Clinton’s confused reaction to her now infamous texting photo going viral was worth a chuckle. But by and large, the emails were quite boring.
Until they weren’t.
Reports started to come in saying that there was, in fact, classified information within some of the emails provided, and the campaign began to scramble, looking for a narrative that would preserve Clinton’s image. But frankly, these talking points did not and do not hold water. As Marc Theissen explained in the Washington Post:
Lash out as she might, Clinton’s constantly changing email story is rapidly falling apart. First, Clinton claimed there was “no classified material” on her private server — which turned out to be untrue. Then she claimed none of the intelligence on her server was “classified at the time” — which also turned out to be untrue. Now, in a National Public Radio interview last week, Clinton said there was no information that was “marked classified.”
But this is not a defense.
It is against the law to remove classification markings from classified information and enter it into an unclassified system — which is the only way this information could have found its way into more than 1,300 emails on Clinton’s personal server. There is no way to “accidentally” send classified information by unclassified email. Senior officials have separate computers in their offices for classified and unclassified information. The two systems are not connected. The only way information from the classified system can make it onto an unclassified system is for someone to intentionally put it there — either by taking a document that is marked classified and typing the information without markings into an unclassified email, or by putting a thumb drive into their classified computer, downloading information and then putting that thumb drive into an unclassified computer, as Edward Snowden did. In either case, it is a crime.
In other words, the classified documentation would had to have been knowingly altered for it to appear as unclassified and unmarked on Clinton’s end. Not good news for her.
If Clinton was not the one doing so or directing others to do so, she can hardly be to blame, right? Wrong. Not unless she was exceedingly terrible at her job. The classified information found on her server, even without official markings, should have been recognized as obviously classified material by someone experienced in dealing with classified material. United States Army Special Forces veteran and intelligence consultant Anthony DeChristopher broke it down as such:
First, when imagery that is classified SECRET//NOFORN (no foreign national) is viewed, regardless of the absence of classification markings, it is distinctly evident. Second, any documents that contain or reference HUMINT is always classified SECRET, and if specificnames of sources or handlers are mentioned, they are at a minimum SECRET//NOFORN. Third, SIGINT is always classified at the TS level. It’s not uncommon for some SI to be downgraded and shared over SECRET mediums, however, it is highly unlikely that a Secretary of State would receive downgraded intelligence. Finally, SAP intelligence has been discovered on Clinton’s private server, and many are now calling this the smoking gun. SAP is a specialized management system of additional security controls designed to protect SAR or Special Access Required. SAR has to do with extremely perishable operational methods and capabilities, and only selected individuals who are “read on” or “indoctrinated” are permitted access to these programs. The mishandling of SAP can cause catastrophic damage to current collection methods, techniques and personnel.
In other words, if you have worked with classified material for more than a day, it seems highly implausible that someone could receive any of the aforementioned over an un-secure medium without alarm bells sounding. However, reading about a Special Access Program on an unclassified device would make anyone even remotely familiar with intelligence mess their pantsuit.
Put another way: Clinton either had no idea what she was doing or knew and willfully violated federal law.
Over 1,200 emails containing classified information have been discovered so far, but those containing references to SAPs are, as DeChristopher points out, easily the most disturbing. The Clinton campaign has insisted that the SAP instances were likely in relation to “open secrets” such as drone policy, but “open secret” topics — subjects that are technically classified but leaked to the public — are not automatically declassified within the government. A look at the Bush administration provides a good example of this. As Theissen continued:
When I was in the White House, I wrote President George W. Bush’s speech acknowledging the existence of another special access program — the CIA interrogation program. Its existence had also been reported by the New York Times. But I had to write the speech in a Sensitive Compartmented Information Facility (SCIF) at the National Security Council, on a top-secret computer that was not even connected to the top-secret Internet system. Until Bush delivered it, the details were Top Secret/Codeword intelligence.
The emails we know about may be just one piece of the puzzle, though. As the inspectors general tasked with evaluating her emails found mounting evidence of classified information transmission, the FBI was brought in. Clinton’s server and thumb drives were seized so that the remnants of deleted “personal” emails might be scrutinized. Should it be discovered that emails relevant to official business were deleted — classified or not — Clinton would be in violation of a different law altogether. Republicans are banking on it, trying Clinton in the press by suggesting that the existence of classified information in the emails she released means there’s probably more where that came from.
Though it does seem like condemnation over technicalities, the fact of the matter is that Clinton’s use of a personal email address and server to conduct state business was dangerous. It’s not just Guccifer out there hacking; it’s state sponsored efforts, too. What’s more, Clinton knew it. Chinese hacking of private government official accounts had already been well documented, but that didn’t dissuade her from defaulting to her own personal account for work. Sounds like a pretty poor judgment call to me.
But that’s not all. Yes, there were concerns about record keeping and classified information and deletion of evidence, but the emails released also presented troubling evidence of Clinton showing preference to Clinton Foundation donors in State Department dealings. As the Washington Post reported:
The note to Secretary of State Hillary Rodham Clinton from liberal financier George Soros demanded “urgent attention from the highest levels of the U.S. government.” Clinton swiftly alerted a top aide to what she described as a “very forceful message which is good — and needed.”
The e-mail exchange, in which Soros warned of growing unrest in Albania, illustrates how Clinton interacted with major donors to her family’s causes during her tenure at the State Department, staying in touch with her political network before her 2016 run for the Democratic presidential nomination. And they show how these donors, some of them with interests before the U.S. government, gained high-level access to press their policy concerns inside the Clinton-led State Department.
Though these points merit consideration, they rarely get evaluated in any sort of critical fashion when the email scandal is discussed by voters. Why? Because the entire fiasco has been politicized in cartoonish fashion. Much of the original furor over the emails stemmed from the Benghazi Committee, which was little more than a thinly veiled attempt at character assassination. Clinton has fed that narrative, arguing the push for more emails and investigation into her use of a personal email account are politically motivated. Perhaps they are to some end. That’s not an excuse, but it is a convenient and effective way to shape public opinion according to partisan leanings.
This political clusterfuck is further demonstrated in how the case is being handled legally. The FBI has been investigating the scandal for some time now, but the Clinton campaign denies that she is a subject of investigation, pointing to the fact that the government agrees with them. It may seem implausible, but it’s not entirely incorrect. As the National Review wrote:
[T]here is one other thing you should know about the designations “target” and “subject” — one of those things so obvious it is easy to miss. These are not just random words. They indicate that a suspect is a target or a subject of something. That something is a grand-jury investigation.
In an ordinary case, that would not be a point worth making. The FBI routinely conducts major investigations in collaboration with Justice Department prosecutors — usually from the U.S. attorney’s office in the district where potential crimes occurred. That is because the FBI needs the assistance of a grand jury. The FBI does not have authority even to issue subpoenas, let alone to charge someone with a crime. Only federal prosecutors may issue subpoenas, on the lawful authority of the grand jury. Only prosecutors are empowered to present evidence or propose charges to the grand jury. And the Constitution vests only the grand jury with authority to indict — the formal accusation of a crime. In our system, the FBI can do none of these things.
No Justice Department, no grand jury. No grand jury, no case — period. As a technical matter, no matter how extensively the FBI pokes around on its own, no one can be a subject of a real investigation — i.e., one that can lead to criminal charges — unless and until there is a grand jury. That does not happen until the Justice Department hops on board.
Regular criminal-justice procedures have been suspended by the explosive politics of the Clinton investigation. Alas, regular criminal-justice procedures have been suspended by the explosive politics of the Clinton investigation. The FBI is doing its professional, apolitical best to investigate the presumptive Democratic nominee for president of the United States. The high stakes rattle not only the Clinton campaign but also the Democratic administration in which Mrs. Clinton worked when she engaged in the work-related conduct being investigated. On the one hand, the Obama administration does not want to be seen by the public as obstructing the FBI; on the other hand, President Obama does not want to be seen by his base as tanking the Democrats’ best shot at retaining the White House — the likely fallout if the Obama Justice Department signals that a formal, very serious criminal investigation is underway.
So Obama is hedging his bets. He is letting the FBI investigate, but on its own, without Justice Department prosecutors and the grand jury.
So while Clinton is being investigated in a colloquial sense, those proceedings don’t have teeth right now. For this to go anywhere, the FBI would need to suggest an indictment to the Attorney General, who would then have to convene a grand jury.
Doing so would be a major embarrassment for the Obama administration, and given the political live wire that this whole thing has become, they’ll likely do their best to avoid it. That may prove difficult. Former U.S. House Majority Leader Tom DeLay has been making noise, saying the FBI will go public with their findings if Loretta Lynch doesn’t move the case forward, which would certainly complicate things.
But if we’re being honest, odds are this has to get adjudicated in the court of public opinion. That’s what makes me nervous. So much of this story points to either breathtaking ignorance and incompetence or terrible judgment buried by cascading lies, but at the center of this story is Democratic royalty. Some may look past Clinton’s assumed ascent and consider this story critically, but the chances are good that many hold their nose and vote for her anyway. Even more unsettling? There are probably a good amount of folks out there so desensitized to the smell of bullshit that they won’t even notice it as they cast their ballot.