While serving as Barack Obama’s Secretary of State from 2009 to 2013, Hillary Clinton conducted State Department business through a private email server routed through her home and using custom domain names. While this much is not disputed by the Clinton campaign, the potential that classified information may have comprised the contents of some emails has generated significant controversy, and Clinton could potentially face FBI indictment over it. While current and former Republican lawmakers have cited unnamed Bureau sources promising imminent indictment, Clinton’s allies in Congress, including even Democratic primary opponent Bernie Sanders, have mostly backed her on the issue. A final decision on the matter, according to FBI sources talking to The Hill, could come at any time.
Here’s what you need to know:
1. Her Emails Contained Classified Material, but She May Not Have Broken the Law
Clinton did not use a government email address during her State Department tenure, electing instead to conduct all official business on a personal email account run through a private server in her home. The State Department’s Inspector General (an internal watchdog and law enforcement agency) and the FBI later requested this server after receiving a tip that classified information may have been transmitted through this account; after some resistance, Clinton handed over the server.
The State Department is slowly releasing emails to the public after both a legal review and guarantees that any classified information has been redacted. So far, at least 1,818 emails are known to have contained classified information. NPR broke down the laws at issue:
- The Federal Records Act requires agencies hold onto official communications, including all work-related emails, and government employees cannot destroy or remove relevant records.
- FOIA is designed to “improve public access to agency records and information.”
- The NARA regulations dictate how records should be created and maintained. They stress that materials must be maintained “by the agency,” that they should be “readily found” and that the records must “make possible a proper scrutiny by the Congress.”
- Section 1924 of Title 18 has to do with deletion and retention of classified documents. “Knowingly” removing or housing classified information at an “unauthorized location” is subject to a fine or a year in prison.
Clinton’s private email server may have been an “unauthorized location,” and her server complicates the process of Freedom of Information Act requests. Also, whether Clinton simply deleted her emails, a common and easily remedied procedure that would not permanently damage the emails, or wiped her server and permanently deleted them, makes a big difference in the case.
However, analysis by attorney and national security expert Bradley Moss revealed that most of the classified information in her emails was received, not sent, making a case against Clinton much harder to build. On top of that, at least some of the emails she sent and received were retroactively classified during the investigation, making it difficult to determine what “born classified” information she knowingly transmitted versus the information she could not have known would be classified.
Clinton, for her part, acknowledges “it would have been better” to use a government email address, but maintains she never set one up out of “convenience.”
The Inspector General of the State Department released a report May 25 that criticized her handling of the email issue on multiple fronts, but did not make a recommendation for or against criminal charges.
2. FBI Director James Comey Is “Thoroughly a Republican,” but Has Pledged an Apolitical Investigation
FBI Director James Comey, appointed by Obama in 2013, was noted as “thoroughly a Republican” by campaign finance watchdog OpenSecrets upon his nomination. A former Department of Justice official during the Bush administration, Comey had donated nearly $10,000 of his own money to Republican candidates, including both nominees opposing Obama, and had headed organizations whose PACs donated almost $500,000 more.
This history with the Republican Party has led to speculation about his leanings on the affair. The Hill called him a “wild card” for Clinton, noting that he stood against Bush on domestic surveillance but has publicly disagreed with the current President he works for as well. The National Review, meanwhile, suggested that Comey would resign in protest if not given the chance to pursue charges against Hillary. Comey, meanwhile, has insisted the Bureau and his agents “don’t give a rip about politics.”
3. Top Hillary Aides May Also Be in Trouble
Multiple Clinton staffers have since become embroiled in the ongoing investigation. At the top of the list is Bryan Pagliano, a former State Department employee who earned an outside salary directly from the Clintons for IT services, now known to include setting up the family email server at issue. The State Department believes that he did not disclose this outside salary, a failure said by internal documents to be punishable by civil action of up to $10,000, as well as up to five years’ imprisonment. When subpoenaed by Congress regarding Benghazi, Pagliano pled the Fifth. Pagliano has since been granted immunity by the FBI and is cooperating with the investigation.
Other aides are affected more directly by the email investigation. Attorney and national security expert Bradley Moss told The Hill that most classified information was in received messages, making Clinton safer but her top aides more at risk during the investigation. Moss singled out Clinton aide Huma Abedin, who has worked with the former First Lady since a White House internship in 1996 and vice-chairs her campaign for President, as a potential target, along with Cheryl Mills and Jake Sullivan.
4. Colin Powell Also Used a Personal Email Account While Secretary of State
Former Bush Secretary of State Colin Powell admitted to using a personal email account while in office. Powell went so far as to use two entirely different computers, a secure State Department computer for secure business and a personal laptop for friends-and-family communication. He admitted, however, to using the personal email account to conduct State Department business regarding non-classified “housekeeping stuff,” though information sent to that account was later classified. Powell has distanced his personal email use from Clinton’s, but says of her issues, “I don’t know and I don’t want to know.”
The Clinton campaign has used Powell’s description of his own activity in their defense, running afoul of the non-partisan FactCheck.org. The fact-checking site notes that Powell did not use a personal server and never conducted official business on the account.
5. Congress is divided on Clinton’s Likely Fate
Congressmembers who have spoken on the issue are divided along party lines on whether Clinton will be indicted. Former House Majority Leader Tom DeLay (R-Texas) claimed “friends in the FBI” told him they were “ready to indict” Clinton and that they would “go public” if the Attorney General refused to act. Representative Darrell Issa (R-California) claimed no inside knowledge but told the Washington Examiner that he believed Comey “would like to indict” Clinton and Abedin but was having to “triple-time” a case that would normally be a “slam dunk.”
Representative Elijah Cummings (D-Maryland) used the Powell events, as well as those occurring under Bush’s second Secretary of State Condoleezza Rice, to downplay the Clinton issue. Her rival for the Democratic nomination, Vermont Senator Bernie Sanders, had a memorable response to the issue during a debate:
Former Clinton strategist Dick Morris, who has consulted for both parties, sided with the Republicans, predicting either an indictment or leaked documents recommending indictment.