Those Emails… again!

Published: June 15, 2016

By Jim Lichtman
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“The American people are sick and tired of hearing about your damn emails!”          Bernie Sanders, the first Democratic debate


I was going to wait before addressing this issue again until the FBI had released a report on its investigation into Hillary Clinton’s use of a private e-mail server, but with the recent release of the Office of Inspector General’s report on the issue, I felt it was time to revisit the issue.

As readers to this site know, I am fussy about the facts. However, if you google, “Hillary Clinton e-mails,” you will find a plethora of spin; from the liberal and conservative to the crazy. So, I go to the sources that have proven to be the most reliable.

Let’s begin with the FBI investigation.

On February 5, National Public Radio examined the story detailing some key issues. In part, it reads:

What is the FBI investigating?

“The Justice Department and the FBI have not publicly confirmed the scope of their investigation. U.S. government sources tell NPR it involves possible mishandling of government secrets that appeared in Clinton’s email messages while she worked as secretary of state.

“The State Department said last month it would not release 22 emails, or 37 pages in total, from Clinton’s private server at the request of the intelligence community because ‘they contain a category of top secret information.’ State Department spokesman John Kirby would not describe the substance of the emails.

“But Sen. Dianne Feinstein, the top Democrat on the Intelligence Committee, and a political ally of Clinton, said that none of the email chains deemed top secret ‘originated with Secretary Clinton’ and ‘it has never made sense to me that Secretary Clinton can be held responsible for email exchanges that originated with someone else.’

What is Hillary Clinton saying about this?

“In an interview with NPR’s Morning Edition, Clinton told host David Greene she was ‘absolutely not’ putting top secret information at risk with her private email setup. ‘I took the handling of classified materials very seriously,’ Clinton said. ‘The emails that I received were not marked classified. Now there are disagreements among agencies on what should have been perhaps classified retroactively, but at the time that doesn’t change the fact that they were not marked classified.’ …

“[The Clinton] campaign team went on the offensive Thursday after NBC News reported that State Department investigators had found some secret material in the email accounts of former Secretary of State Colin Powell and of aides to former Secretary of State Condoleezza Rice. Powell told Politico that he had been interviewed by the FBI about it. But Powell also said he considered the issue an ‘absurdity’ because the material in question involved harmless conversations among diplomats.”

In the Politico interview (Feb. 4), Powell was particularly outspoken about the retroactive classification of many of his e-mails by State, saying:

“[The emails are] fairly innocuous and very benign and neither ambassador classified them at the time. They were merely information memos sent to,” Powell said. “My executive assistants thought they should send them to me on my personal email. I found that personally acceptable.

“Now, 11 or 12 years later,” Powell adds, “as part of a whole process of reviewing things somebody in the department says, ‘Well, they’re classified.’ My response to that is no they were not. You can say your judgment is they should have been classified but at the time they were not classified.”

The difference, as it has been brought out many times by Republicans, is that Powell used a private e-mail account with a .gov address. Clinton used a private server that housed her e-mails. The distinction put forth by many is that Powell’s private e-mail account was inside the security “fence” of the federal government. Hillary Clinton’s server was not, and therefore, exposed to potential attacks by individuals or governments interested in sensitive information.

Care to guess how often U.S. government servers have been attacked?

No one has come up with a definitive number. However, the Heritage Foundation, a conservative think tank in Washington, has written several detailed reports on cyber attacks. The most notable attack was reported in a July 9, 2015 story in The New York Times.

“The Obama administration on Thursday revealed that 21.5 million people were swept up in a colossal breach of government computer systems that was far more damaging than initially thought, resulting in the theft of a vast trove of personal information, including Social Security numbers and some fingerprints. …

“The agency said hackers stole sensitive information,’ including addresses, health and financial history, and other private details, from 19.7 million people who had been subjected to a government background check, as well as 1.8 million others, including their spouses and friends. The theft was separate from, but related to, a breach revealed last month that compromised the personnel data of 4.2 million federal employees, officials said.

“Both attacks are believed to have originated in China… The breaches constitute what is apparently the largest cyberattack into the systems of the United States government, providing a frightening glimpse of the technological vulnerabilities of federal agencies that handle sensitive information.”

My first thought after reading this story: Gee, maybe using a private server is not so bad after all. Nonetheless, it is government policy to retain accurate records of communication within the various departments.

Returning to the NPR report.

Could Clinton be charged with a crime?

“For months, Clinton has defended herself by arguing that none of the material on her server had been marked ‘classified,’ which lawyers say could help her advance the idea that she never intended to break the law. She did, however, sign paperwork at the State Department that said she understood that information could be classified even if it weren’t marked that way. And if she did not originate top secret email chains, as her political allies suggest, that could mean the aides who sent her the material would be in more legal jeopardy than she.

“Former Attorney General Michael Mukasey, who worked in the George W. Bush administration, recently wrote an opinion piece in the Wall Street Journal arguing that some form of a criminal charge, even if based on negligence, rather than intentional wrongdoing, is justified.

“Clinton told a CNN interviewer last month that she had not yet been interviewed by FBI agents. That step typically comes near the end of an investigation. And U.S. sources tell NPR no recommendation from the FBI has been shared with the attorney general, who would make the final call on any such prosecution.”

On May 12, Politifact weighed in with more details. In part, it reads:

“Inspectors General from the State Department and the intelligence community referred the case to the Executive Branch in July 2015. The referral memo made clear that the Inspectors General were not suggesting that anyone involved in Clinton’s email setup committed a crime. Rather, they were following their statutory obligation to inform the intelligence community about any potential security breach — namely, that Clinton possibly held classified information on her email server located outside secure government facilities.

“In August,” Politifact writes, “the FBI entered the case.

“[Politifact] talked to experts in federal criminal investigations, and they told us that the FBI doesn’t look into issues just for the heck of it. They assess cases to find out whether criminal activity occurred.

“ ‘We don’t do these because we’re curious,’ said Ellen Glasser, a retired FBI special agent who worked on cases regarding mishandled classified information. ‘There’s a potential that a criminal violation took place.’

“Clinton is undoubtedly a subject of the investigation, but whether she meets the definition of an official FBI ‘target’ is unknown. That term is reserved for people for whom there is substantial evidence linking them to a crime, according to the prosecutor’s judgment.

“Clinton said in March that investigators have not told her that she or any of her staff members are targets of the investigation.

“If people ask about their status in an investigation, it’s common practice for the Justice Department to tell them whether they’re targets or not, said Lauren Ouziel, a former federal prosecutor and a professor at Temple University Beasley School of Law.

“ ‘If [Clinton] has been informed by the DOJ that she is presently not a target, then her statement that she is not a target would be accurate,’ Ouziel said, noting that she has no non-public knowledge of the case.

“But of course, Clinton’s actions are clearly front-and-center in the FBI investigation. Based on her knowledge of how classified information mishandling cases proceed, and her understanding of public reports about Clinton’s role in the email setup, Glasser said the FBI is very likely looking at Clinton specifically.

“ ‘My experience tells me that Hillary Clinton is a subject of a criminal investigation,’ Glasser said.

“The FBI doesn’t open an investigation definitely knowing it will seek charges against someone. If an investigation does not reveal evidence of a crime, or if there is insufficient evidence of criminal conduct, then the investigation will close without any charges filed.”

When will the FBI investigation end?

NPR reports that “Federal authorities have offered no public timetable for their investigation. Typically, the Justice Department tries to avoid bringing charges too close to an election lest it influence the outcome of a political race.

“FBI Director James Comey has promised lawmakers he will conduct the probe quickly and independently. ‘We don’t give a rip about politics,’ Comey said. He also told Republican senators that the FBI was not briefing the White House about the status of the Clinton email investigation.”

Friday: What does the inspector general’s report say?


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