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Federal Inspectors General Call For Criminal Investigation Of Hillary Clinton’s Emails

Hillary Clinton Blackberry

Two Federal Inspectors General are urging that the Justice Department conduct a criminal investigation into Hillary Clinton’s use of a private email server while she was Secretary of State, specifically to look into whether or not she may have improperly handled classified information:

WASHINGTON — Two inspectors general have asked the Justice Department to open a criminal investigation into whether sensitive government information was mishandled in connection with the personal email account Hillary Rodham Clinton used as secretary of state, senior government officials said Thursday.

The request follows an assessment in a June 29 memo by the inspectors general for the State Department and the intelligence agencies that Mrs. Clinton’s private account contained “hundreds of potentially classified emails.” The memo was written to Patrick F. Kennedy, the under secretary of state for management.

It is not clear if any of the information in the emails was marked as classified by the State Department when Mrs. Clinton sent or received them.

But since her use of a private email account for official State Department business was revealed in March, she has repeatedly said that she had no classified information on the account.

The initial revelation has been an issue in the early stages of her presidential campaign.

he Justice Department has not decided if it will open an investigation, senior officials said. A spokesman for Mrs. Clinton’s campaign released a statement on Twitter on Friday morning. “Any released emails deemed classified by the administration have been done so after the fact, and not at the time they were transmitted,” it read.

At issue are thousands of pages of State Department emails from Mrs. Clinton’s private account. Mrs. Clinton has said she used the account because it was more convenient, but it also shielded her correspondence from congressional and Freedom of Information Act requests.

She faced sharp criticism after her use of the account became public, and subsequently said she would ask the State Department to release her emails.

The department is now reviewing some 55,000 pages of emails. A first batch of 3,000 pages was made public on June 30.

In the course of the email review, State Department officials determined that some information in the messages should be retroactively classified. In the 3,000 pages that were released, for example, portions of two dozen emails were redacted because they were upgraded to “classified status.” But none of those were marked as classified at the time Mrs. Clinton handled them.

In a second memo to Mr. Kennedy, sent on July 17, the inspectors general said that at least one email made public by the State Department contained classified information. The inspectors general did not identify the email or reveal its substance.

The memos were provided to The New York Times by a senior government official.

The inspectors general also criticized the State Department for its handling of sensitive information, particularly its reliance on retired senior Foreign Service officers to decide if information should be classified, and for not consulting with the intelligence agencies about its determinations.

The Wall Street Journal  reports that a review indicates that hundreds of classified messages containing classified information have apparently been found among Clinton’s declassified emails:

WASHINGTON—An internal government review of former Secretary of State Hillary Clinton’s email archive has revealed that hundreds of those messages contain potentially classified information.

Due to concerns about the potential mishandling of classified information on Mrs. Clinton’s personal email server, the inspectors general for the Department of State and intelligence community have asked the Justice Department to consider a criminal investigation, a Justice Department official said.

A memorandum from both inspectors general viewed by The Wall Street Journal found that an investigation discovered “hundreds of potentially classified emails within the collection” of Mrs. Clinton’s emails.

The inspectors general also found that at least one of Mrs. Clinton’s emails already publicly released on the State Department’s website contained apparent classified information.

Mrs. Clinton “followed appropriate practices in dealing with classified materials. As has been reported on multiple occasions, any released emails deemed classified by the administration have been done so after the fact, and not at the time they were transmitted,” a spokesman for Mrs. Clinton said.

News of the request for a potential criminal investigation was first reported by the New York Times.

When she was secretary of state, Mrs. Clinton used her own email account that was run through a personal server for all of her work-related correspondence. Though the arrangement was legal at the time for routine and unclassified correspondence, it has prompted questions from lawmakers and watchdogs about her compliance with federal records laws.

Mrs. Clinton has said that she preferred to use a personal server for convenience. In a March news conference, she insisted that no classified information had been sent or received from her personal email account.

“I did not email any classified material to anyone on my email. There is no classified material,” she told reporters. “I’m certainly aware of the classified requirements and did not send classified material.”

It isn’t clear from the inspectors-general report whether the instances of classified material uncovered were considered classified at the time Mrs. Clinton sent the messages. In several instances, the State Department decided to classify an email rather than release it to the public, but the material was unclassified when she initially sent it.

“It’s not uncommon that something that you’re sending now on an unclassified network could in later years or later months be deemed to be classified either because the passage of time made it so or because events on the ground have borne out,” a State Department spokesman said earlier this month.

At the outset, it should be made clear that the Inspectors General are not saying that it’s certain that Clinton was improperly handling classified material while she was Secretary of State. As both articles above make clear, it’s possible that what were we’re talking about here are situations where information that was not previously classified was designated as such after the State Department reviewed her email and decided that certain correspondence should not be made public at this time. Information that falls into this second category, of course, isn’t necessarily problematic because you really can’t fault someone for improperly handling classified information when the information in question wasn’t classified at that time. That situation though, isn’t what the Inspectors General who wrote this report appear to be talking about. Instead, their concerns are directed at information that was in fact classified which Clinton failed to properly handle, a situation that obviously was made more likely due to the fact that she was corresponding with State Department employees using a private, unsecured, email server that was outside the supervision or control of government IT officials. At the very least, it was sloppy and, while being sloppy may not be criminal, but as Chuck Todd noted this morning, Clinton lost any high ground on this issue when she refused to turn over the server when this story first broke. Frankly, I’d argue that she lost high ground when she decided to use a private email server to conduct business as the Secretary of State to begin with, even though it may have perfectly legal it seems from the outside to be short-sighted in terms of security and a move designed more to allow her to protect her personal reputation than a means to allow her to do her job more easily.

At this point, obviously, it is impossible to say with any certainty whether any laws were broken in this situation. At the very least, though, it would seem clear that this is something that ought to be investigated. From the beginning, the idea of a Secretary of State using an email system outside the State Department’s control or ability to monitor is something that should have been raising concerns regardless of which side the political aisle one falls on. Which it seems clear that such as arrangement did not violate applicable State Department procedures and rules, it seemingly so unusual and potentially risky that one can wonder why the procedures and rules were so out of date as to allow something like this to happen. Perhaps in the beginning of the email era it would have been acceptable for government employees and even officials as high-level as the Secretary of State, to use private email for official correspondence. By the time Clinton took office in 2009, though, the email era was sufficiently mature that there should have been no rational reason why she or anyone else in her position should have permitted to do this.

If does turn out that Clinton mishandled classified documents, it will most likely be the case that she won’t face any serious legal consequences for it. As Conor Friedersdorf notes, the nation’s “state secrets” laws are applied in such a arbitrary manner at times that it is unlikely that someone so highly placed will face serious consequences except in the most egregious of cases. The recent case of David Petreaus is a good example of that. At the same, though, that doesn’t mean the manner should not be investigated and that Clinton should not be required to provide better answers for why she chose to do something like this than the rather unbelievable idea that she only did it because she didn’t want to carry more than two mobile devices.

Update: Friday afternoon, The New York Times has issued a clarification to the original report stating that the request by the Inspectors General was not necessarily directed against Mrs. Clinton personally. Nonetheless, if there was classified information that was improperly handled via her private email account, it’s hard to imagine how she would not have been involved in that.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Dave Schuler says:

    One of the matters at issue is the sheer volume. Each of the individual communications could constitute a distinct infraction.

    Like or Dislike: Thumb up 4 Thumb down 0

  2. al-Ameda says:

    Hmmm … it’s starting to get interesting.

    Maybe Bernie Sanders is, or will be, to Hillary Clinton what Gene McCarthy was to LBJ (with a little help from the Federal IGs’). This could really open things up.

    I have a feeling that the 2015-16 campaign season is going to be historically interesting.

    Like or Dislike: Thumb up 3 Thumb down 0

  3. gVOR08 says:

    @al-Ameda: Which is not a good thing.

    Like or Dislike: Thumb up 6 Thumb down 1

  4. Just Me says:

    If this turns out to be the case it’s going to be next to impossible for the Justice department that prosecuted Petraus to explain why ahillary shouldn’t be charged. I think it’s difficult for justice to defend a choice to not investigate as well.

    This may make some on the democrat side more likely to try running-I figure there are some democrats who figured running against ahillary would be a waste but it’s looking like Hillary is going to sustain some damage here and it may result in the reluctant giving it a go.

    I think Biden may toss his hat in but others may as well.

    Like or Dislike: Thumb up 3 Thumb down 0

  5. al-Ameda says:

    @gVOR08:

    @al-Ameda: Which is not a good thing.

    You’re right of course. It’s potentially very damaging to the Democratic Party.

    The only thing I’ve feared with Hillary is that there could be something like this that could take her down. Benghazi, Emails – it’s starting to seem like yet another permanent investigation of the Clintons, in this case Hillary. However, it’s early, and Republicans already hate her, so the issue will be whether or not Democrats start to jump ship.

    Like or Dislike: Thumb up 3 Thumb down 1

  6. Tillman says:

    Well, I suppose Hillary can always try going back to that “open contempt for the media” persona and see if things pan out for once.

    Like or Dislike: Thumb up 7 Thumb down 0

  7. Hal_10000 says:

    Seems justified to investigate but I doubt anything will come out of it. The precedent has already been set with Petraeus. In fact — and I say this as someone who doesn’t care for the Clintons — it’s likely that what Petraeus did was worse. If Clinton did mishandle classified info, it wasn’t on purpose to feed info to her extramarital lover writing a hagiography.

    Still 15 months until the election. Barring something major, I expect this will have little impact on Clinton’s chances.

    Like or Dislike: Thumb up 6 Thumb down 3

  8. Scott F. says:

    First, warn us when you put in a link to Hot Air. Those brain cells I’ll never get back.

    Secondly, as @Dave Schuler notes, by virtue of the volume of content involved, there is very likely something in there that could be called an “infraction.” It will all come down to whether something significant is found early or if, like Benghazi, investigations continue to be compelled until “something” is found.

    Either way, the potential to severely damage Clinton’s prospects seems small – early discovery gives time for things to blow over and the Benghazi strategy will come to be seen as petty, same-old-same-old.

    Like or Dislike: Thumb up 3 Thumb down 2

  9. HarvardLaw92 says:

    @Hal_10000:

    There is no real basis for holding her criminally liable for releasing material that wasn’t designated as being classified until after she’d released it. If the assertion – that all of the material in question was reclassified post release – is accurate, from a prosecutorial standpoint this goes nowhere.

    It will, of course, attempt to be used to political advantage by the rage-o-sphere regardless.

    Like or Dislike: Thumb up 7 Thumb down 1

  10. Hal_10000 says:

    @HarvardLaw92:

    Agreed. I was only referring to if she handled info that was classified at the time.

    Like or Dislike: Thumb up 2 Thumb down 0

  11. HarvardLaw92 says:

    @Hal_10000:

    Agreed. Even then, the applicable laws in this area criminalize knowingly releasing certain types of classified information to person(s) who are not authorized to receive it. Assuming materials which were classified at the time she conveyed them are involved, it then becomes a question of who the information in question was conveyed to and whether she knew at the time she conveyed it 1) that it was classified and 2) that the recipient(s) weren’t authorized to see it.

    It’s honestly a non-starter from the standpoint of prosecution, but I feel pretty certain that was never the intent to begin with.

    Like or Dislike: Thumb up 3 Thumb down 0

  12. Tyrell says:

    These “scandals” are not always what they seem. It could very well be that she bucked someone higher up or didn’t toe the line. We saw that over the years with the Watergate scandal, Wilbur Mills, and Wayne Hayes
    and other scandals. Hollywood type productions with fake, rigged evidence that no one can argue with (doctored, edited tapes). They crossed the wrong people and paid.
    They will come up with phony emails in this case that seem convincing, but may turn out to be just a warning.

    Like or Dislike: Thumb up 0 Thumb down 8

  13. motopilot says:

    Highly-rated. Helpful or Unhelpful: Thumb up 16 Thumb down 0

  14. HarvardLaw92 says:

    @Tyrell:

    Oh dear g-d, are you for real?

    Wilbur Mills (who was three sheets to the wind at the time) admitted to being present / in the car when the married Argentinian stripper who was driving his car had an accident and subsequently tried to evade the police on scene by attempting to wade across the Tidal Basin in front of much of the DC news corps (who by that point had smelled scandal and arrived on scene). He later showed up on stage with her husband at the strip joint where she was performing, trashed, and then proceeded to hold a press conference in her dressing room.

    Shortly thereafter, he acknowledged that he was an alcoholic, wisely chose not to run for reelection and checked himself into rehab.

    Wayne Hayes got caught when the bimbo he hired to act as his secretary mistress allowed a reporter to listen in on their phone conversations in which Hayes directly confirmed her status as his secretary mistress. The guy put his mistress on the government payroll and was dumb enough to get caught doing it.

    He later admitted the whole thing on the floor of the House of Representatives, and resigned.

    They’re truly sad stories of self-destruction, but they’re just that – self-inflicted damage.

    Like or Dislike: Thumb up 6 Thumb down 0

  15. Franklin says:

    @al-Ameda: There’s always Jim Webb!

    /crickets

    Like or Dislike: Thumb up 1 Thumb down 0

  16. JohnMcC says:

    @HarvardLaw92: The conspiracy theory versions are more fun, however.

    Like or Dislike: Thumb up 1 Thumb down 0

  17. Mark says:

    Hey Doug, are you going to correct your headline to address the updates that undermine this accusation?

    Highly-rated. Helpful or Unhelpful: Thumb up 22 Thumb down 1

  18. C. Clavin says:

    Doh…the Clinton Derangement Syndrome is strong with this one.

    Like or Dislike: Thumb up 5 Thumb down 2

  19. stonetools says:

    @Mark:

    I guess not. I have to agree with CClavin here. Clinton has made several meaty policy speeches, of the type that pundits are always begging candidates to make. Doug ignored them all, yet the moment some Clinton “scandal” came up, Doug posted it immediately-and when it turned out not to be a scandal at all, Doug leaves up the erroneous clickbait headline. That’s low, Doug.
    Is that the way you would have treated Rand Paul?

    As to the New York Times, Josh Marshall nails it:

    I would really hate to think The New York Times is dusting off the old 90s-era, Whitewater-style reporting for its coverage of Hillary this year. But, damn, it’s starting to seem that way.

    Like or Dislike: Thumb up 13 Thumb down 2

  20. Lit3Bolt says:

    Conservatives yawn when the gov’t lies them into wars, engage in torture, assassination programs, disappearing people into black sites, extrajudicial killings, spy on everyone without warrants, or arm and support terrorist organizations to fight other terrorist organizations.

    Mishandled e-mails?! HAIR ON FIRE OMG LET THE PEARL CLUTCHING NEVER END!!

    Quick! Squirrel-dive onto the Bat-fainting couch! WHAT HAS THE CLINTON FAMILY MOB-OMERTA-GANGSTERS DONE THIS TIME?!

    Conservative principles are a farce. A tragic one.

    Like or Dislike: Thumb up 9 Thumb down 1

  21. OzarkHillbilly says:

    Nonetheless, if there was classified information that was improperly handled via her private email account, it’s hard to imagine how she would not have been involved in that.

    Reading is fundamental Doug. How is it that you are the only one*** who came up with that interpretation of their correction?

    *** well, you and every RWNJ in the universe

    Like or Dislike: Thumb up 5 Thumb down 0

  22. DrDaveT says:

    Tangential question — how do emails generated by the Secretary of State get classified (and marked) anyway? I can’t imagine that she marks them herself — she’s too busy for that. (She may not even be an Original Classification Authority, in the grand scheme of such things.) She might not even know in advance which emails she’s sent are going to end up classified.

    So how does that work?

    (Handling of incoming emails, which presumably should already be marked by the sender, are a separate issue. I’m not worried about that one just at this instant.)

    Like or Dislike: Thumb up 1 Thumb down 0

  23. JohnMcC says:

    @DrDaveT: And a related but somewhat off-topic question would involve the over-classification of huge amounts of paper, data and such as SECRET when it is frequently only embarrassing. If Ms Clinton’s e-mails are investigated the criterion should not be whether the pages ultimately were stamped as SECRET but whether their accidental release would have actually done harm to national interests.

    Like or Dislike: Thumb up 4 Thumb down 0

  24. stonetools says:

    Frankly, I’d argue that she lost high ground when she decided to use a private email server to conduct business as the Secretary of State to begin with, even though it may have perfectly legal it seems from the outside to be short-sighted in terms of security and a move designed more to allow her to protect her personal reputation than a means to allow her to do her job more easily.

    So that’s the nub. Doug is mad because , although what Clinton did was legal, he would like her to publicly admit the REAL reason she had a private email account so the pundits can rake her over the coals and generate all sorts of fake outrage about her putting her convenience over NATIONAL! SECURITY!
    In reality, elected representatives of Congress to this very day use private emails to conduct government business.Meanwhile, since Doug won’t do it , let me post this:

    Jeb Bush used his private e-mail account as Florida governor to discuss security and military issues such as troop deployments to the Middle East and the protection of nuclear plants, according to a review of publicly released records.

    The e-mails include two series of exchanges involving details of Florida National Guard troop deployments after the Sept. 11, 2001, attacks, the review by The Washington Post found.

    You all are gonna make me love the Clintons before this is over

    Like or Dislike: Thumb up 10 Thumb down 1

  25. James Joyner says:

    @HarvardLaw92: I don’t think she intended to illegally distribute classified information but, then, I don’t know what it is she intended by running her office via a private email server vice the official USG account. But the fact that she ran thousands of emails that way in contravention of policy certainly adds to her culpability here. Will it matter? Probably not. She’s a Clinton and they don’t have to follow the rules.

    @JohnMcC: I agree that actual potential to cause harm vice merely “was it classified?” should be the standard in levying punishment. But I said that WRT Petraeus, too, and most commenters here disagreed.

    Like or Dislike: Thumb up 1 Thumb down 10

  26. humanoid.panda says:

    @DrDaveT: In general,the SecState is not generating any emails that are classified via her email = that’s what telegrams are for. At issue here are documents generated by others she forwarded- and whether they were classified at the time or not.

    Like or Dislike: Thumb up 0 Thumb down 0

  27. humanoid.panda says:

    In general, it seems to me that anything sent via e-mails connected to the internet and not via hermetically sealed encrypted systems should never be considered or classified as “Secret”- it is 99% certain it was hoovered by,. at the very least, the Chinese and Russians.

    Like or Dislike: Thumb up 2 Thumb down 0

  28. stonetools says:

    @James Joyner:

    But the fact that she ran thousands of emails that way in contravention of policy certainly adds to her culpability here

    Please identify the then existing law, regulation, or State Department guidance she contravened by using a private email server.I’ll save you time: you can’t.

    She’s a Clinton and they don’t have to follow the rules.

    Ever considered that the reason she is being hounded like this (although she actually followed the rules) is BECAUSE she is a Clinton? Why isn’t there a committee investigating use of private email by Colin Powell, Jeb Bush, Jason Chaffetz, or Trey Gowdy?

    Like or Dislike: Thumb up 5 Thumb down 0

  29. stonetools says:

    Heh:

    Yet it’s important to note that Gowdy maintains his own domain treygowdy.com. For example, one campaign contact email he used was info@treygowdy.com. While it’s not unusual to maintain such a thing particularly for campaign work, it’s not clear that Gowdy utilizes this email solely for political campaign work and not congressional tasks. AlterNet asked Gowdy’s office through both a telephone inquiry followed up by an email communication to his press secretary about how he segregates work he conducts through his personal domain vs congressional work. We also inquired about where his personal email server is stored and how it is secured. We also attempted to contact Gowdy campaign manager George Ramsey, but he did not return our phone calls. In 48 hours, the deadline we set, we received no response.

    Why isn’t the New York Times asking Gowdy these questions?

    Like or Dislike: Thumb up 4 Thumb down 0

  30. dmichaelwells says:

    @James Joyner: I always read the posts by Doug Mataconis that have in their headline: “Hillary Clinton” for the simple reason that his anti-Clinton bias will make for fun reading, especially when lacerated by the commentators. Your attempt to defend him is like coming to a gun fight with a knife. As already noted, your accusations are completely unsupported by any evidence and the NY Times article that Mataconis salivated over had been thoroughly and conclusively debunked: http://www.newsweek.com/hillary-clinton-new-york-times-emails-357246.

    Like or Dislike: Thumb up 4 Thumb down 0

  31. Lit3Bolt says:

    @James Joyner:

    Dr. Joyner, what about the rules President Bush should have followed leading us to an unnecessary war, conducting that war, and finishing that war? What about their own CONSERVATIVE PRINCIPLES, which they tossed aside for tax breaks for stock owners? So much for balanced budgets.

    I get it, it’s IOKIYAR. The Clintons are a SPECIAL kind of malevolent politician, while the Bushes are saintly naifs who simply couldn’t know the future consequences of their actions.

    Individual responsibility for thee, and not for me (or my allies).

    Like or Dislike: Thumb up 1 Thumb down 0

  32. HarvardLaw92 says:

    @James Joyner:

    But the fact that she ran thousands of emails that way in contravention of policy certainly adds to her culpability here.

    Policy at the time didn’t mandate the use of government email servers. That didn’t come into play until after she’d already left Foggy Bottom. There is no culpability without knowing distribution to unauthorized persons. She might have violated some arcane IT guideline, but the punishment for that is a personnel action, not a prosecution (and they can’t exactly subject her to personnel action at this late date …). From the perspective of the law, one can store classified records just about anywhere one chooses. It’s not about where they are kept, but instead who sees them and who does not. The private server thing didn’t (and doesn’t, from the perspective of storing classified materials) violate federal law.

    The bottom line is that there is almost certainly no illegality to be found here, and from a criminal perspective it will go absolutely nowhere.

    But, like I said, this was never about criminality. It’s about (creating) the perception of “scandal” in an election cycle.

    Like or Dislike: Thumb up 2 Thumb down 0