January 3, 2018

Political Points or Accountability: The Server Story That Never Dies

So, the Clinton email server investigation is almost a zombie at this point. It is probably the Robin Swallows of politics at this point.

In our first installment of 2016: The Year That Will Never End, comes a story courtesy of The Hill:

“Republicans on key congressional committees say they have uncovered new irregularities and contradictions inside the FBI’s probe of Hillary Clinton’s email server.

For the first time, investigators say they have secured written evidence that the FBI believed there was evidence that some laws were broken when the former secretary of State and her top aides transmitted classified information through her insecure private email server, lawmakers and investigators told The Hill.”

If there were improprieties, there were improprieties, and they should be looked at. However, I lean on this being more scoring political points rather than pursuing accountability when…

“The FBI admits it recovered thousands of State emails that originated or passed through Clinton’s private server — some which had been deleted — that were never turned over to the State Department as government records by Clinton’s team.”

“While the FBI believed none of those were deleted intentionally to keep them from the government, the Records Act allows for a misdemeanor charge in each instance where a government document is destroyed carelessly, investigators said.”

Clinton’s case is often compared to what happened with former CIA Director David Petraeus. Petraeus shared classified information with his biographer Paula Broadwell — who also happened to be his mistress. And he shared this classified information while director of the CIA.

That was a clear case of felony intent. The Department of Justice recommended charges; Petraeus ended up pleading guilty to a misdemeanor charge of mishandling information. Which, in cases where that charge has been brought against someone, always occurs.

It should be noted that was quite a unique case, because even before Clinton was formally cleared by the FBI — there were chances that criminal charges were already going to be unlikely based upon the history of previous cases of mishandling information. As Josh Gerstein of Politico wrote in 2016:

“The examination, which included cases spanning the past two decades, found some with parallels to Clinton’s use of a private server for her emails, but — in nearly all instances that were prosecuted — aggravating circumstances that don’t appear to be present in Clinton’s case.

The relatively few cases that drew prosecution almost always involved a deliberate intent to violate classification rules as well as some add-on element: An FBI agent who took home highly sensitive agency records while having an affair with a Chinese agent; a Boeing engineer who brought home 2000 classified documents and whose travel to Israel raised suspicions; a National Security Agency official who removed boxes of classified documents and also lied on a job application form.”


However, some experts on national security law said Clinton’s intent is far more important than the volume of emails at issue or how long they spent on her server. They noted that none of the information was marked classified and that there’s no indication she was trying to send classified information to anyone not authorized to look at it.

“The law treats the intentional disclosure of one piece of classified information to someone not entitled to receive it far more seriously than the accidental communication of dozens of pieces of classified information to people who were not supposed to get it,” American University law professor Stephen Vladeck said, citing explicit and implicit requirements that a person charged with violating the laws relating to classified information know that the information they mishandled was classified.

It’s also unclear whether the information was less secure on Clinton’s home server than on the State Department’s unclassified email system used to send most of the now-classified messages to her in the first place. State’s system was an obvious target and has been repeatedly broken into by the Russian government, U.S. officials have said.

“We know for a fact there was a compromise of State’s unclassified server,” said [Federation of American Scientists’ Steven] Aftergood. “Did [Clinton] exacerbate that threat by her use of a private server? Possibly, but we really don’t know.”