Questions and Answers About Hillary Clinton’s Emails

The never-ending saga of Hillary Clinton’s emails continues and it is guaranteed to be continue because of the regularly scheduled document drops the State Department is making under court order. Let’s put the matter into question and answer format.

What did Hillary Clinton do?

From the very beginning (January 2009) of her term as Secretary of State, Hillary Clinton exclusively used a private email server, either hosted on her own premises or those of others, commingling private emails, the emails in which she conducted State Department business, and business related to the Clinton Foundation. This was brought to light as a consequence of a Freedom of Information Act request.

Why did she do that?

She said she did it for convenience. That’s absurd and I assume that she along with everyone else knows it’s absurd. IMO the most likely explanation and the one explanation that does not presume that she’s an idiot is that she maintained a private email server to avoid the scrutiny of her communications that she knew her political enemies would inevitably conduct.

Well, so what?

Not only were her actions in violation of State Department policy (policy she was not at liberty to ignore even as Secretary of State) but the server was not secured. We know that the security of the private email server was breached by at least one hacker—that came out early in the investigations. We do not know whether its security was also breached by foreign governments.

It is also quite likely that she violated the law multiple times.

What laws?

According to Ken Cuccinelli:

Instead of turning his journals — so-called “black books” — over to the Defense Department or CIA when he left either of those organizations, Petraeus kept them at his home — an unsecure location — and provided them to his paramour/biographer, Paula Broadwell, at another private residence. (None of the classified information in the black books was used in his biography.)
On April 23, Petraeus pled guilty to a single misdemeanor charge of unauthorized removal and retention of classified documents or materials under 18 USC §1924. Many in the intelligence community were outraged at the perceived “slap on the wrist” he received, at a time when the Justice Department was seeking very strong penalties against lesser officials for leaks to the media.
According to the law, there are five elements that must be met for a violation of the statute, and they can all be found in section (a) of the statute: “(1) Whoever, being an officer, employee, contractor, or consultant of the United States, and, (2) by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, (3) knowingly removes such documents or materials (4) without authority and (5) with the intent to retain such documents or materials at an unauthorized location [shall be guilty of this offense].”

Mr. Cuccinelli goes on to explain how Sec. Clinton’s actions satisfies each of those conditions. I also think there’s a pretty good case that she engaged in a conspiracy to evade the Freedom of Information Act. That’s a felony.

Isn’t she exonerated by virtue of having been Secretary of State at the time and empowered to determine what was or was not classified?

No. Some of the emails on her private server were what is called “classified at birth”. That means they were inherently and automatically classified. Declassifying them would have left a paper trail. Since no such paper trail has come to light, it’s a reasonable inference that never happened.

Isn’t this all just politically motivated?

No. There are certainly political motivations involved and the investigations may have started out with political motivations but it’s gone far beyond that now. It genuinely appears that Sec. Clinton engaged in illegal activities and has persistently lied about them.

21 comments… add one
  • Guarneri Link

    Their strategy is clear and well worn: drag it out long enough to re-cast it as a purely partisan battle. (See: Prior Clinton scandals)

    As any survey of polls or comments at OTB will show, they will have the core liberal vote no matter if she confessed to being a vampire. Therefore they just need to bore and tire the independents and the star stuck Republicans. (Read First-Woman-President Women). “But he said he loved me……” With a largely compliant press and promising free goodies along the way they might pull it off.

    Sad commentary.

  • Andy Link

    Three comments:

    1 – “She said she did it for convenience. ” I wouldn’t dismiss that too hastily. The email dumps provided so far give a glimpse into the life of a Clinton and similar power players with a lot of staff support. Clinton’s aides perform just about every mundane task you can think of from buying the right kind of milk to looking up when TV shows will be broadcast. I mean, if you’re at the point where you send an email to ask a staffer to tell you when TV shows are on, (instead of spending 20 seconds to google) you might be a bit addicted to convenience.

    2 – “(3) knowingly removes such documents or materials” I think this will be hard to prove for Clinton compared to Petraeus, at least based on what’s known so far, but her aides could definitely be in trouble. In the case of drafting or forwarding and email with classified information that isn’t properly marked, one can always make the case of ignorance which wasn’t possible for Petraeus.

    3. “Some of the emails on her private server were what is called “classified at birth”.” That’s not exactly correct. Each agency controls its own classified information and each agency can set the rules for what is and isn’t classified. The Secretary of State, as the ultimate classification authority for the department, can unilaterally declassify anything produced by the DoS, but cannot declassify or otherwise downgrade any information from other departments. The classified info in the emails came from other agencies and thus is subject to their rules and oversight for dissemination, disclosure, downgrading and declassification. The State Department cannot, for instance, declare that intelligence from the NSA is unclassified without the NSA’s approval. So the issue here is that classified information, produced by agencies other than the State Department, was disseminated on an unsecured, unclassified, non-government system without the approval of the originating agency. That is why the FBI is involved – they have a duty to both investigate if the leakage is criminal, determine the extent of the leakage to limit the spread and prevent further leakage, and determine (to the extent they are able) if any information was made it to a foreign power – in other words, they are also conducting a counter-intelligence investigation.

  • steve Link

    Howard Dean says she did not break the law.

    “Howard Dean, a former chairman of the Democratic National Committee, thinks Hillary Clinton’s email scandal is largely being fueled by a “media feeding frenzy” — and the story itself has “no substance.”

    Dean spoke about the Clinton controversy on “MSNBC Live” Friday morning.

    “Well, I think part of it is the media feeding frenzy. This is pact journalism at its worst,” Dean said when asked why a recent poll showed two-thirds of American voters don’t trust Clinton. “I had to experience this when I was running for president. This is what the media does. They go after the front-runner. There’s really no substance to this story at all.”


  • Howard Dean says she did not break the law.

    because every doctor of medicine is an authority on law. His views on the matter have no more credibility than mine do. Less, actually, because he’s an interested party.

  • Andy:

    Every defense that’s been mounted of Sec. Clinton’s actions hinges on the Secretary of State’s having plenary authority but that’s not true. Only the president can make foreign policy or casually disregard long-established rules and the president does not have the authority to delegate that authority to his subordinates.

  • gray shambler Link

    Wish she and her husband would just go……..away.

  • Drag a thousand dollar bill through Chappaqua…you never know what you’ll find.

  • Andy Link


    “Only the president can make foreign policy or casually disregard long-established rules and the president does not have the authority to delegate that authority to his subordinates.”

    I don’t think that’s a true in many cases. Any President, by necessity, delegates authority, particularly in foreign policy. The President delegates authority in the conduct of war. The President delegates authority in the enforcement of US law. There are few areas where the President doesn’t delegate authority. And really, at the founding of the Republic, before there was modern communication, the delegation of authority was a practical necessity.

    As far as classified information goes, almost all the authority for that is delegated to agencies as spelled out in the relevant executive orders. It’s true that Clinton’s defenders claim that the information “wasn’t classified at the time” which, as I’ve explained, is BS because her agency didn’t classify it. It may not have been marked as classified, but that doesn’t mean it wasn’t or isn’t.

    At the end of the day I think it will be very hard to prove intent based on what we now know but everything could change depending on what the FBI is able to dig up. Although it appears suspicious, how can you prove in court that Clinton set up the server to avoid FOIA? Unless something else comes out, I don’t see it happening. Same with the security violations which I don’t think have been tied to Clinton directly, only her aides. And anyone who has been around political staffers knows that that they don’t know the first thing about security or proper handling of classified information. If push comes to shove they will claim ignorance and I bet they were well and truly ignorant because I’ve seen it so many times. The same cannot be said for Petreaus and Sandy Berger who were caught with their hand in the till, so to speak.

  • In law intent may be inferred from a pattern of action. Repeated evasions lead to a reasonable inference of an intent to evade.

  • PD Shaw Link

    Andy: “Any President, by necessity, delegates authority, particularly in foreign policy.”

    I think you are going too far down this path. The office of the Secretary of State is created by Congress, which delegates to the Secretary of State duties and responsibilities. When Kissinger was charged with removing documents, a distinction was drawn between Kissinger’s legal responsibilities as Secretary of State and as national security advisor, when the documents were removed. The NSA position is entirely based upon executive authority, and it’s arguably this distinction that has resulted in Presidents conducting a lot of foreign policy outside the Secretary of State Department, removed from Congressional laws and oversight.

  • PD Shaw Link

    What about Huma Abedin, why did Clinton set up an e-mail account for her? It was convenient for Clinton? How?

  • I think it’s enormously inconvenient to host your own email. What would have been really convenient would have been just to send all of her email (personal, foundation, and official) through the State Department’s servers. Yes, it would have been against policy but what she has done was against policy.

    The only credible explanation I see is to avoid scrutiny. That itself is explicitly against the law.

  • The real explanation is that she was selling her office, bartering ‘donations’ to the Clinton Foundation and those obscene speaking fees in exchange for favorable decisions on matters of state.

    Needless to say,she wanted those private.

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