The Forest and the Trees

Focusing solely on the classified information aspect of the investigation of Hillary Clinton’s private email server, David Ignatius reaches the conclusion that there’s nothing to see here, move along:

Does Hillary Clinton have a serious legal problem because she may have transmitted classified information on her private e-mail server? After talking with a half-dozen knowledgeable lawyers, I think this “scandal” is overstated. Using the server was a self-inflicted wound by Clinton, but it’s not something a prosecutor would take to court.

“It’s common” that people end up using unclassified systems to transmit classified information, said Jeffrey Smith, a former CIA general counsel who’s now a partner at Arnold & Porter, where he often represents defendants suspected of misusing classified information.

which I think is correct. Since very early days in the revelation of the existence of the private server, I have been saying that the routine and systematic violations of the Federal Records Act and possible criminal conspiracy to evade the Act are the problems for Sec. Clinton and IMO there’s already a prima facie case for both. They’re neither trivial nor discretionary.

Defenders of the former First Lady and Secretary of State and present Democratic presidential candidate either engage in special pleading on her behalf, ignore the “rational person” standard that any judge would apply to Sec. Clinton’s claims that public business was not transacted using the server or that she thought that the receiver’s compliance was enough to satisfy her own compliance obligations, or, wrongly, that she had the discretion to do what she did. She was no longer Secretary of State when the private server was revealed.

While I agree that we have far too many laws and regulations in this country, I also think think that the laws and regulations must be enforced without respecting personages. Doing anything else creates a class system. I never assume that I or my family will be on the right side of such a class system.

15 comments… add one
  • PD Shaw Link

    “transmitted classified information on her private e-mail server”

    Ignatius is focussed on the classified angle, which is part of his beat. But his description here seems to deliberately obscure two different issues: (1) data transmission (e-mail) and (2) data storage (server). Sending government information by private e-mail is different from setting up storage of government records in a watercloset for yourself and at least one other government official.

    And it may be that Ignatius (or the lawyers he talked with) don’t understand the technological issues. There was a time when “storage” was theoretical because the cost of storage meant that each new transmission would be deleted from the server once downloaded to the receiving devise. You could conceptualize e-mail transmission as akin to a telephone communication in which real-time interception was the concern, but extremely difficult. But these days the data is simply sitting there like a little black book until someone deletes them.

  • Yes, data in motion and data at rest are distinct security issues. Also omitted are the many subsequent security issues that may have arisen from the Secretary’s actions. There may be copies of these emails on hundreds of private servers all over the world.

  • PD Shaw Link

    I was correct that the context of the last court hearing were continuing arguments about the scope of the State Department’s responsibilities under FOIA for any documents outside of its custody or control. Here is the relevant bit:

    [State Dept. Attorney]: . . . So the question then becomes the legal question of whether the agency is required to search for or process — not even documents now, we’re talking about devices that are not in its possession and control. And I would point to case law directly on point that documents such — personal documents such as those in a personal e-mail account are — an agency is not generally required to undertake that type of extraordinary remedy.

    THE COURT: Right. But assuming, though, in that scenario there wasn’t a violation of government policy either, correct? We’re not talking about a search of anyone’s random e-mail accounts. We’re talking about a search of devices that may have contained official government documents, that’s what we’re talking about. We wouldn’t be here today had the employee followed government policy, right?

    [State Dept. Attorney]: Well, the answer to that is clear. And this is a quote from the Kissinger case, 445 U.S. at 154, “It is clear that Congress never intended, when it enacted FOIA, to displace the statutory scheme embodied in the Federal Records Act and the Federal Records Disposal Act providing for administrative remedies to safeguard against wrongful removal of agency records as well as to retrieve wrongfully removed records.”

    Of course, I point out here, there’s no allegation that these were in the agency’s system of records and then removed. So, it’s not wrongful removal in that. But my point more generally is this FOIA case is not the vehicle for the plaintiff to address that. They have a separate Federal Records Act case pending currently in front of Judge Boasberg on their Federal Records Act claim. And that is the case to explore any of these issues that are appropriate at that time.

    Transcript at page 17

  • PD Shaw Link

    Again the context is that the State Department wants to close this case with an affidavit that it provided all relevant documents in its possession. That is all that FOIA requires.

    The judge is ordering State Department to conduct at least some preliminary investigation pursuant to its duty under the records laws to make inquiries with former employees, talk with the FBI about Clinton’s server, investigate the people involved with setting up the server, etc. While this is a FOIA lawsuit, the Judge states that the State Department has a duty under the Records Act to investigate and take actions to preserve the records under these circumstances to make sure the FOIA response is complete.

    Also, the response given will determine the scope of discovery the judge is going to allow. Discovery (depositions, interrogatories, etc.) is not generally favored in FOIA cases, but the Judge has indicated that the results of the State Department’s investigation will determine what, if any, discovery is allowed.

    The federal records lawsuit seeks a finding that public records have been “removed” and order Secretary of State Kerry to refer the matter to the Attorney General. Apparently there is a private cause of action for this, but it appears that State is prepared to argue that public records were never “removed” because they were never kept in the first place.

  • That’s a nice summary, PD. Thank you.

    Having read some of the remarks of the judge in the case, I’ve gained the impression that he doesn’t think that State’s interpretation is reasonable. If the Secretary of State has the discretion to keep official records on a private server, the Secretary has no obligation to turn the records over at severance, and the State Department is under no obligation to take steps to obtain the official records, it vitiates the Federal Records Act.

  • PD Shaw Link

    I think the judge is exasperated by the government’s unwillingness to take small steps to figure out what happened. They won’t pick up the phone and ask the FBI the status of the server, when its review will be done, and whether it would be made available to the State Dept. They won’t ask Clinton about whether any of the devices were backed-up or who provided service for them. So the Judge has to read the Washington Post and order State to establish a dialogue with the FBI, and write letters to former employees, etc.

    I think the judge is not inclined to open this matter up for discovery so Judicial Watch can depose Clinton and her friends, and force the Judge to respond to a lot of objections, and perhaps even sit in the depositions with Clinton’s legal team to referee events. Nobody is making that easy for him.

  • ... Link

    This hole deal looks so exceptionally hinky to me that I don’t understand how this doesn’t make pretty much everyone not on the Clinton team suspicious. “Oh yeah, _I_ will decide what is and isn’t official government business, and I will unilaterally destroy everything I find inappropriate for your prying eyes.” The bit with the server being physically located in someone’s bathroom just makes it that much ridiculous.

    Not to mention that as a matter of public hygiene Ms. Clinton keeps getting caught lying about the matter. True, none of those lies constitute crimes at this point, as you can lie to the public and press freely, but it keeps reinforcing the negative images of her that go back a long, long way now. I really think this issue has softened her support among Dems, but we’ll see if anyone can take full advantage of that.

  • Returning to the remarks made by State’s attorney quoted by PD above, something else being ignored: the Secretary of State is a policy maker. When she elected to maintain her own private server and conduct official business through it, like it or not she was making State Department policy.

    If she can do that and it absolves the State Department of any responsibilities under the Federal Records Act, it, again, vitiates the Federal Records Act.

  • Andy Link

    I have a bit of experience with FOIA, but I’m really out of my element when it comes to the law there. I’m more focused on the classified spillage. I’ve been involved in spillage incidents over the years and typically they can be corrected without a lot of fuss. The reason is that they usually happen on government systems, so it’s straightforward to find out which systems have unauthorized information and who accessed that information. The affected systems can be wiped and re-imaged and personnel who read/saw information above their clearance level can be made to sign a non-disclosure agreement.

    None of that is possible thanks to Clinton’s private server and the fact that it was wiped. That’s why the FBI is involved – they have to investigate in order to determine the extent of the spillage and, importantly, to see if any of the information made it off of Clinton’s server to, in particular, foreign intelligence agencies. The actions of Clinton and/or her staff may have made that impossible.

    It’s a poorly kept secret that senior officials regularly send classified information via regular email. They think the rules do not apply to them. I once had to tell a General Officer that he could not talk on his cell phone in my SCIF, for example. Clinton and her team are not different in that regard. The level of access combined with poor infosec practices by senior officials mean that they are high-priority targets for foreign intelligence. Any communication they use must be auditable by the government to help ensure security and to assess damage when spillage inevitably occurs. Clinton’s private server made all of that impossible.

  • steve Link

    1) Correct me if I am wrong, but it looks like it has always been left yup to the individual govt employee to decide what is personal email and what is work related. They can delete the personal stuff. Any work related stuff that gets on a personal account, and it is now clear this happens a lot, is (again) turned over at the discretion of the govt worker.

    2) It now seems like there were no emails marked as classified on the Clinton server. They did contain classified information. As Andy, and many others have, noted, this seems fairly common for senior officials. Except in cases like with Petraeus where he knowingly gave classified info to his girlfriend, it looks like this largely goes unpunished. If, as Dave says, we should treat everyone equally under the law, the correct response here in terms of legal action, should probably to do nothing.

    Steve

  • Andy Link

    Steve,

    #1. that is true to some extent. There are generally rules in each organization for what information must be preserved and it is the responsibility of employees to ensure information they product conforms with those rules. However, a confirmed cabinet official may have a different standard given their position – I don’t honestly know.

    #2: Punishment is usually administrative, but a lot depends on the circumstances. For classified information to get onto unclassified email someone had to read the classified information and then type up that info into an email. Whoever did that (and the FBI will probably find out) will need to explain why or profess ignorance. Criminal prosecution is rare – usually it’s enough to revoke someone’s clearance which is worse than getting fired for many people – if your career depends on a clearance, then losing your clearance career-ending administrative action. It’s like getting disbarred as a lawyer or losing your medical license or a doctor.

  • steve Link

    Andy- So in this case, the person(s) who sent the classified email to Clinton would be the ones facing loss of clearance?

    Steve

  • Correct me if I am wrong, but it looks like it has always been left yup to the individual govt employee to decide what is personal email and what is work related.

    Keep in mind that discretion is not total for anyone. There’s a reasonableness standard that needs to be maintained. So, for example, tacking “Love to Muffie and the kids” on the end of an email does not make what would otherwise be official business a personal email. Also, I think that Sec. Clinton needed to hand over the official correspondence that had been maintained on the private server, something that Sec. Clinton has acknowledged doing, on her severance from the State Department.

  • Andy Link

    Steve,

    Yes – whoever it was that originally put classified info into an unclassified system carries the bulk of responsibility. Potentially, people who knew it was classified and failed to report the breach would also be in trouble, but that’s hard to prove, especially if material was not marked as classified. And we’re talking about DoS employees here who don’t have the training like members of the IC do to recognize when something is potentially classified. However, they would still need to sign an NDA and be debriefed.

    Here’s another example – suppose there is a fire in my classified vault. Uncleared firemen may see classified material – that is not a big deal, they would just be debriefed on what they saw and then sign an NDA.

    Point being, much depends on the circumstances and in Clinton’s case, the details of how the information got into her system and where it might have spread matter a great deal. That her system was a separate, private server (since wiped) means that discovering those details is a lot more difficult than it would be otherwise.

  • TastyBits Link

    If this is all politically motivated, who is driving the FBI investigation? The Republicans do not control the FBI, and I cannot see how it can be blamed on President Bush. (I have faith somebody will give it a try.)

    Again, who is driving the FBI investigation? If nobody, is it actually politically motivated? (I am sure there is still a Bush angle in there somewhere.)

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