Clinton’s Emails. Need I Say More?

If you’ve been on the internet, seen a newspaper or flipped on the television or radio in the last 12 months, you’ve seen stories about the Hillary Clinton email controversy. You’ve heard her called a traitor and a liar, incompetent and unqualified, or simply downright careless, but what did she actually do?  In March of last year, the news broke that while she was Secretary of State, Hillary Clinton used a private email server for all of her official government communications. Now, at first glance this might not seem like a big deal. Previous research shows that past secretaries of state have used private email servers for their official government communication, so what makes this situation special? This is a complex issue, and I think a lot of people are still a little confused about what the issues are, I know I was.   I put this article together to briefly explain what actually happened.

A Little Background

While serving as Secretary of State, Hillary Clinton used a BlackBerry phone for all her communications, both private and official. The State Department suggested to Clinton that her use of a BlackBerry for government related communications might pose a security risk, but finding a solution to the issue was too impractical and inconvenient, so she kept using it. The email account she used on her BlackBerry was hosted on a server in her home in New York State. That server ran a Microsoft Exchange 2010 system where all emails were processed through the Outlook Web Application, which, prior to 2009, was essentially unsecured. In other words, any information Hillary Clinton transmitted through her private email while she was Secretary of State may have been vulnerable to interception.

Sending Classified Information via a Private Server

Government officials are allowed to use personal email for government business, as long as all work-related emails are preserved by their agency. For the sake of government transparency, we want to be able to see what information our government officials are sending and to whom. Now, when Hillary was Secretary of State, the Department’s policies required that normal, day-to-day operations be conducted on an “authorized system.” This meant that, an official could use a private email server, as long as that server met security regulations and as long as government related emails were saved for later review. After the Benghazi attacks, news broke that Secretary Clinton had used a private server for all official communication.  Officials and members of Congress then raised concerns that the emails sent through her server might have contained classified information that would have been vulnerable to interception by foreign entities.

In various interviews, Clinton has said that she did not send or receive any information that was marked as classified. As one would expect, the FBI launched an investigation to determine if and how classified information was handled on Clinton’s server, and whether or not its use complied with federal security regulations. The FBI found that of the approximately 30,000 emails they examined, 113 of them contained information which was classified at the time it was sent.  Of these 113, 65 emails were deemed “Secret” and 22 deemed “Top Secret”.  Only THREE total emails had any marks indicating that the email could be classified when the email was sent.    

So what law was Hillary accused of breaking?

The Freedom of Information Act (FOIA)

The FOIA is a federal regulation that allows for the full or partial disclosure of previously unreleased information and documents controlled by governmental agencies that fall under the executive branch.  The official citation to the FOIA is 5 U.S.C. § 552.  Basically, the policy behind the law is that we want to be able to see who our government officials are talking to and about what. The main part of this law that was called into question was the section which explains that “knowingly” removing or housing classified information at an “unauthorized location” is subject to a fine, or up to a year in prison.  

If Hillary had used a third party such as a Google or MSN email account, under the FOIA Congress would have been able to force Google or MSN to hand over any government related emails sent using that service. By using a private server and a private email, Hillary was able to delete nearly 33,000 unreleased emails that she claims were personal in nature and therefore did not need to be handed over to the State Department or the FBI investigators. Dan Metcalfe, a former head of the Justice Department’s Office of Information of Privacy said that, “[Hillary] managed successfully to insulate her official emails, categorically, from the FOIA, both during her tenure at the State Department and long after her departure from it—perhaps forever,” making it “a blatant circumvention of the FOIA by someone who unquestionably knows better.”  In sum, Hillary’s storage and deletion of the emails raised concerns that she violated the Freedom of Information Act. 

So Why Were No Charges Filed?

This is a complex case, and contrary to all those internet memes you see on Facebook, it is very hard to make any black and white judgments about Hillary’s conduct as it concerns the FOIA. On July 5, 2016, the FBI concluded its investigation of then Secretary Clinton’s email practices. FBI Director James Comey made a statement, saying that while Clinton was “extremely careless in handling very sensitive, highly classified information,” there was no evidence that she knowingly or intentionally mishandled classified information.  I’m going to say this again because it is very important.  There was no evidence that she knowingly or intentionally mishandled classified information. 

While it’s true that someone in Hillary’s position should have unquestionably known better, the law requires that, in order to face charges, the person in question has to knowingly transmit or maintain classified information on an unauthorized system. In Clinton’s situation, one of the unmarked emails retroactively deemed to have contained classified information, was a news article about U.S. drone strikes in the Middle East that Clinton forwarded to one of her staffers. That’s an email any one of us either has or could have sent.   The FBI and/or the Justice Department did not believe it could prove Clinton knew this, or any other emails, were classified.  As a result of lack of evidence establishing this intent, no charges were filed. 

Look, could Hilary have been more careful in managing her emails?  Yes, and she has admitted that. Did she knowingly violate the FOIA, I don’t think so and neither does the DOJ and FBI.  Does the fact that she is involved with a situation like this make her any less qualified to be our president?  No, I don’t think so.  And considering the amount of time everyone, including myself, and even you after reading this article, has spent on this issue, I think it’s safe to say “Enough about the damn emails!”