Shorter FBI: Hillary Clinton Broke the Law, But Don’t Prosecute Her

The latest in shocking but not surprising news came yesterday as FBI Director Jim Comey formally recommended not indicting Hillary Clinton for her alleged mishandling of classified information.

Given America’s less-than-stellar track record of prosecuting the powerful, this outcome has been a virtual certainty for some time. Even so, the event is still important. It offers the clearest evidence to date that the rule of law does not exist. One set of rules applies to the politically connected, and an entirely different set applies to everyone else. Nothing could illustrate this fact better than the Clinton email scandal.

Invalid Defenses
Before getting into the details on this issue, it’s worth addressing a few of the common counterarguments that are offered in defense of the good Secretary.

Overclassification
The idea here is that a lot of information in government is classified for no reason. Thus, some defenders of Hillary Clinton–including President Obama himself–implicitly acknowledge that Hillary may have mishandled classified information. But, to borrow Obama’s phrase, “There’s classified and then there’s classified.” In other words, since almost everything in government is classified at one level or another, it’s not really that big of a deal that Hillary may have sent and received a few emails on an insecure server. Would-be hackers might have been able to access the lunch menu on Capitol Hill, but that’s about it.

Of course, it is true that too much information in government is classified. However, this is beside the point. The relevant question here is whether there is evidence that Hillary Clinton broke the laws as they are, including whatever system of classification exists. And if those laws are found to be absurd and unjust and her conduct is deemed harmless, then a jury could find her not guilty on those grounds. That is not a decision for the FBI, or the Department of Justice.

It could be argued that not indicting Clinton is just, if it marked a shift towards leniency in the government’s handling of these cases. That is, maybe the Clinton scandal drew so much attention to the absurdly aggressive prosecution of others who have mishandled (questionably) classified information that the government has discovered the error in its ways. If this were really true and were accompanied by an imminent pardon of Chelsea Manning and/or a lifting of threats against Edward Snowden, the Clinton recommendation could almost be cause for celebration. But there’s no reason to believe this is going to happen. As we’ll see later, the FBI’s decision was not based on a reevaluation of the justice of these laws. The laws are just as bad as ever; the FBI simply determined that Clinton did not violate them.

A final strike against the overclassification defense is that it appears that some of the classified information in Clinton’s private email really was supposed to be classified. This is why the State Department refused to publicly release 22 of the Clinton emails because the underlying information was determined to be Top Secret. Even if overclassification accounted for most of the classified information in Clinton’s private email, it would not excuse these. And obviously, since the Democrats are still in power in the Executive Branch, it would make no sense for the non-release of these 22 emails to be politically motivated.

Everyone Does It
This line of argument stems from the recent damning Inspector General report on email security and recordkeeping practices in the State Department’s Office of the Secretary. Contrary to popular belief, it notes that only three high officials regularly used personal email accounts to conduct official business, Secretary Powell (2001-2005), Secretary Clinton (2009-2012), and Ambassador Gration (2011-2012). According to the report, Secretary Powell used a personal email account before formal email security guidance existed in the State Department. Additionally, when Secretary Powell began his term in office, the State Department email system only permitted communication within the Department. Thus, a personal email account was his only option to communicate with people outside of the Department (foreign ministers, etc.). These same circumstances did not exist for either Gration or Clinton.

Ambassador Gration routinely used a personal email account to conduct official business and ignored repeated directions from Department security personnel to use a secure Department account. Eventually, his refusal to obey these instructions resulted in the Department initiating disciplinary proceedings against him. However, he ultimately resigned his post before the proceedings were completed.

Thus, it’s simply not accurate to say that everybody did what Clinton did with regard to private email usage. One official did so when no alternatives were available and proper security guidelines were yet to be created. The other used a private email in violation of Department guidelines and so had disciplinary action initiated against him. Only Secretary Clinton stands alone, without a justification and yet still without punishment of any kind.

Additionally, even if it were true that many other political leaders had behaved similarly to Clinton as some allege, it would not matter. That would justify the other officials getting prosecuted as well, not all of them getting away with impunity. This should go without saying. After all, if you are being prosecuted for murder, saying “OJ got away with it” is not likely to help your case.

The Emails Weren’t Marked Classified
It is true that most of the classified emails on Clinton’s email server weren’t marked classified. However, this is not nearly important as Clinton’s defenders would like to suggest. Former State Department employee Peter Van Buren recently explained why this argument doesn’t carry any weight:

There is no physical connection between the U.S. government’s unclassified and classified systems; you absolutely cannot email a document from the dark side to the light. Properly configured, classified systems should not allow for removable media, to lessen the chance for information transfer (one of the reasons Chelsea Manning was able to smuggle out so much classified was because his computer was not properly set up, and included a DVD burner. We still don’t know how Ed Snowden got his documents out.)

Given these restrictions, the way anyone can move information from one system to the other is what’s called “sneakernet,” after the athletic shoes. You print out a marked, classified document, and then retype the parts you like into the unclassified system. You of course do not add the marking – TOP SECRET – because that would be like robbing a bank and then sticking a sign on your chest saying “Attention Cops, I’m the Guy Who Just Robbed a Bank.” Including the classification markings would be admitting to a crime.

So that is why Clinton’s emails had no classification marking on them even though the contents of those emails contained information that was indeed classified at the time it was transmitted. That is why the emails are a big deal, no matter what smokescreen Hillary wants to throw up.

Additionally, we have evidence of at least one instance where Clinton apparently asked her staff to do precisely this. On one occasion, Clinton’s aides were having difficulty sending her talking points over the secure fax line. Clinton gave the following instructions in an email that was subsequently released to the public: “If they can’t [get the fax to work], turn into nonpaper w no identifying heading and send nonsecure.

Based on this information, it is no longer mysterious how so much classified material came to be unmarked. And since classification isn’t based on how something is marked anyway, it is not at all relevant to determining whether Clinton violated the law.

With these standard objections addressed, we move on to the heart of the matter.

Double Standards
The FBI’s recommendation against indicting Secretary Clinton needs to be viewed in the context of the Obama administration. As we noted in a previous piece on the Clinton scandal:

…the US has zealously prosecuted cases involving the mishandling of classified materials. This was true in whistle-blowing cases like those of Private Manning (who got 35 years in prison) or the lesser known Thomas Drake (who was indicted and had his career ruined). But it’s also been true of people who just downloaded files on to personal devices, for convenience, with no intent to distribute them. There was also the case of the Navy sailor who took pictures of classified areas on his submarine with a cell phone camera and now faces up to 10 years in prison.

There’s no reason to think that any of the above outcomes were just or warranted, but they did occur. And while the prosecution of whistle-blowers is a slightly different issue, the others are worthwhile comparisons. In both cases, it was not alleged that the individuals intended to distribute the classified materials. And yet in both cases, the prosecution pursued and obtained convictions against the defendants.

The Clinton case involves significantly more material and presumably far more sensitive material, given her position as the US’s chief diplomat at the time. But, if the FBI’s recommendation is followed, she will not even be prosecuted, let alone convicted.

The FBI’s Internal Contradictions
Given its importance in this election cycle, this story was bound to be newsworthy regardless of the outcome. However, the extensive details offered by FBI Director Comey made it even more remarkable.

In essence, Comey’s remarks went like this:

  1. Explain what the relevant laws require for a crime to be committed
  2. Explain what the investigation found, most of which clearly satisfied at least some of the requirements for a crime to be committed
  3. Recommend against indicting anyways

If that sounds incredible, the details are even more bizarre. Reading the full remarks, one almost gets the impression that there were two competing drafts composed–one for indictment and one against–and then they were hastily combined to produce the finished product. So the body of the statement builds a sound case in favor of an indictment, and the conclusion attempts to awkwardly walk it back.

For example, first we learn from Comey what is necessary to justify either a felony or misdemeanor charge:

Our investigation looked at whether there is evidence classified information was improperly stored or transmitted on that personal [email] system, in violation of a federal statute making it a felony to mishandle classified information either intentionally or in a grossly negligent way, or a second statute making it a misdemeanor to knowingly remove classified information from appropriate systems or storage facilities.

So far, so good. Given that we know from the Inspector General report that Clinton ignored Department guidance on email usage, it seems at least the misdemeanor charge would be met.

Next, Comey explains that Clinton actually had multiple private servers over the course of her tenure with the State Department. And since email records were nearly destroyed on one particular server that was decommissioned in 2013, the FBI apparently had a fun task of trying to recover the information.

Comey then moves on to give the classification statistics on 30,000 emails that Clinton and her legal team provided to the State Department for retention. In theory, these emails were supposed to be all of the work-related emails. Here’s Comey:

From the group of 30,000 e-mails returned to the State Department, 110 e-mails in 52 e-mail chains have been determined by the owning agency to contain classified information at the time they were sent or received. Eight of those chains contained information that was Top Secret at the time they were sent; 36 chains contained Secret information at the time; and eight contained Confidential information, which is the lowest level of classification. Separate from those, about 2,000 additional e-mails were “up-classified” to make them Confidential; the information in those had not been classified at the time the e-mails were sent.

So here we have another official independent body verifying that Clinton did in fact send and receive classified information on her private email system. And importantly, several of them were classified at the time of transmission. Nothing real new here, but it’s worth reiterating. Now is where it gets really good (emphasis added):

The FBI also discovered several thousand work-related e-mails that were not in the group of 30,000 that were returned by Secretary Clinton to State in 2014. We found those additional e-mails in a variety of ways. Some had been deleted over the years and we found traces of them on devices that supported or were connected to the private e-mail domain. Others we found by reviewing the archived government e-mail accounts of people who had been government employees at the same time as Secretary Clinton, including high-ranking officials at other agencies, people with whom a Secretary of State might naturally correspond.

This helped us recover work-related e-mails that were not among the 30,000 produced to State. Still others we recovered from the laborious review of the millions of e-mail fragments dumped into the slack space of the server decommissioned in 2013.

With respect to the thousands of e-mails we found that were not among those produced to State, agencies have concluded that three of those were classified at the time they were sent or received, one at the Secret level and two at the Confidential level. There were no additional Top Secret e-mails found. Finally, none of those we found have since been “up-classified.”

So the Clinton camp supposedly provided all work-related emails (30,000 total) back to the State Department and deleted the rest as merely personal. But then when the FBI had a chance to look through some of the other emails that were not included in this batch of 30,000, they found thousands(!) more that were, in fact, work-related. A few of these newly discovered work-related emails, once again, contained classified information.

Next, the FBI Director attempts to explain why the above facts are not actually a big deal (emphasis added):

I should add here that we found no evidence that any of the additional work-related e-mails were intentionally deleted in an effort to conceal them. Our assessment is that, like many e-mail users, Secretary Clinton periodically deleted e-mails or e-mails were purged from the system when devices were changed. Because she was not using a government account—or even a commercial account like Gmail—there was no archiving at all of her e-mails, so it is not surprising that we discovered e-mails that were not on Secretary Clinton’s system in 2014, when she produced the 30,000 e-mails to the State Department.

It could also be that some of the additional work-related e-mails we recovered were among those deleted as “personal” by Secretary Clinton’s lawyers when they reviewed and sorted her e-mails for production in 2014.

The lawyers doing the sorting for Secretary Clinton in 2014 did not individually read the content of all of her e-mails, as we did for those available to us; instead, they relied on header information and used search terms to try to find all work-related e-mails among the reportedly more than 60,000 total e-mails remaining on Secretary Clinton’s personal system in 2014. It is highly likely their search terms missed some work-related e-mails, and that we later found them, for example, in the mailboxes of other officials or in the slack space of a server.

It is also likely that there are other work-related e-mails that they did not produce to State and that we did not find elsewhere, and that are now gone because they deleted all e-mails they did not return to State, and the lawyers cleaned their devices in such a way as to preclude complete forensic recovery.

This raises a few important questions. First up, what exactly would qualify as evidence that “work-related emails were intentionally deleted in an effort to conceal them”? Previously, Hillary Clinton and top aides certified, under penalty of perjury, that all government records (work-related emails) had been returned to the government. Now, we know that thousands of such emails were missing.

Fortunately for Clinton, she has a much better technical support team these days. After making the decision which emails were “private” and which were work-related, her team permanently deleted all “private” emails. As a result, the FBI has no way of knowing for sure whether Clinton’s team explicitly deleted emails that were work-related or not. If this could be proved, this would seem to invalidate Hillary’s previous certification and possibly constitute the crime of perjury. But since everything was wiped clean, we’ll probably never know.

With all of this evidence produced, Comey offers the following summary (emphasis added):

Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.

 …

Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case.

Here, Comey is moving the goal posts. He ultimately justifies the decision not to recommend an indictment based on the fact that they could not find adequate evidence of intent. But earlier in this very same presentation, Comey explicitly stated that intent is not required. Recall that this is how he framed the potential violations being investigated (emphasis added):

Our investigation looked at whether there is evidence classified information was improperly stored or transmitted on that personal [email] system, in violation of a federal statute making it a felony to mishandle classified information either intentionally or in a grossly negligent way, or a second statute making it a misdemeanor to knowingly remove classified information from appropriate systems or storage facilities.

According to Comey, in order for Clinton’s actions to rise to the level of a felony, gross negligence is all that is necessary. Thus, we are left to wonder what exactly is the difference between being “extremely careless” and “grossly negligent”? Apparently, one gets you a free pass, while the other gets you indicted for a felony. Adverbs matter.

Summing Up
While the FBI’s recommendation on Clinton is clearly disappointing, it should not be surprising. The case for indicting Clinton for mishandling classified information is overwhelming. None of the defenses offered stand up to scrutiny, and Clinton’s public statements on the subject have repeatedly been proven false as new information emerges. But the decision of whether or not to indict Hillary Clinton was never going to be based on the evidence or the law. In reality, powerful, politically-connected people like Clinton are immune to both. This week, the FBI reminded us of this fact in the clearest terms possible.

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