So unless you have been living in a cave for the past 2 years, you have likely heard about the Hillary Clinton email scandal. This post is intended to give a little background about what actually happened and a better understanding of what it actually means.
So what is the story all about? When Hillary Clinton became Secretary of State, she decided that she didn’t want to deal with the hassle of using the State Department IT department issued email account and associated equipment such as a blackberry. So she decided to task out to some IT consultants to build out a private email server that she would use for her unsecure email communications(more on that later). At least that’s what she says was her reason. And it certainly may be the reason.
However another reason why she may have wanted to do this is to avoid Freedom of Information Act requests otherwise known as FOIA requests. That is certainly possible. But it is impossible to know her motives so I’m not going to speculate.
This became public due to the never ending investigations into Benghazi. The discovery of the private email server prompted a State department investigation, then a Congressional investigation and then a FBI criminal investigation. The State Department investigated concluded no wrongdoing occurred. The Congressional investigation achieved exactly the same thing that all Congressional investigations achieve, nothing. The FBI investigation concluded that there wasn’t enough evidence to prosecute Hillary Clinton or others.
The basis of the FBI criminal investigation was the mishandling of classified information by Hillary Clinton and/or others. While there was clear evidence of mishandling of some classified material, that mishandling did not warrant prosecution according to the FBI. To understand this we have to dig a little deeper.
The United States has 3 levels of classification. Top Secret, Secret, and Confidential. Each comes with its own rules. However ALL of them have some shared rules.
One of the primary rules is you cannot distribute classified information via unauthorized systems. Authorized systems are systems specifically designed to handle classified material of varying levels. Classified emails are transmitted on their own secure systems. Secret email is transmitted via SIPRNet. Top Secret email is transmitted via JWICS. Not only that but to use these systems you must use a SCIF which is essentially a secured room to transmit data.
The email servers that host the state.gov email addresses, which are the addresses that this entire controversy centers around, reside on the NIPRnet which is the unclassified network for the government. You may not use NIPRnet to send classified material.
The problem is that for policy makers and senior managers this becomes functionally close to impossible. As with most of us, email is a crucial tool for day to day communications. And the current classification system has all sorts of problems. So abiding by a system that classifies roughly a petabyte(1,000 gigabytes) of data a year becomes almost impossible for the people who use this data. So inevitably some classified material winds up on NIPRnet.
From a handling classified material perspective, the use of NIPRnet or a private mail server to handle classified material is equally illegal. So the fact that Hillary Clinton had these emails on her private server or on the State Department state.gov servers makes no difference. Legally speaking they are equally illegal.
So why didn’t the FBI prosecute Hillary Clinton? First off, they would need to prove that Hillary Clinton knowingly transmitted classified material via this system. This is no small feat because they would need to show evidence that Hillary knew without question that something was classified at the time she sent or received the email. Furthermore, a high profile prosecution of this would cause absolute chaos inside the government. The Clinton campaign would have no choice but show how common place the mis handling of email is and has been historically. They would subpoena email records from State, DoD, Energy, and every other agency that handles classified material. It would be ugly and almost certainly would not have led to a conviction.
Now there is another criminal law that Hillary Clinton could be considered to have violated. Gross negligence in handling classified material is a crime as well. At first glance this may appear to be more relevant. But ultimately it faces the same problem as the mishandling of classified material does. In order to show that Hillary was being grossly negligent you would need to prove that she knew that classified information was being transmitted.
There is another aspect to her private email server that is a problem for Hillary. While this doesn’t deal with criminality it could clearly be an illegal act. As a senior official, Hillary Clinton is required to keep a record of “official communications”. This is where the 30,000 deleted emails become relevant.
As this controversy was bubbling up, Hillary Clinton handed over about 30,000 emails to the State Department for review. HOWEVER, she did not hand over roughly 30,000 emails that she determined to be private and not official business. This was not illegal in any way as it is ultimately up to the individual to determine which emails are official correspondence. She, actually her chief of staff Cheryl Mills, instructed their IT consultants to delete all emails older than 60 days old. This all occurred in December 2014. In March of 2015, Congress subpoened to get ALL of her emails. The IT consultants, realizing that they didn’t actually follow their client’s instructions and delete the emails in December, panicked and wiped out all of the emails after the subpoena was issued.
The FBI granted two of the IT consultants immunity, since they both technically committed a crime, in exchange for a detailed account of what happened. After understanding what happened, the FBI dropped this inquiry.
This post is not intended to excuse Hillary Clinton’s decision to use a private email server. It was a poor decision that she handled poorly once it was found out. But there is a lot of misinformation being bandied about by partisans that needs to be cleared up.