May 2016: The State Department won’t say if Clinton’s former top aides have kept their security clearances or not.

 05-2016ChuckGrassley

Senator Charles Grassley (Credit: Brendan Smialowski / Agence France Presse / Getty Images)

Senator Charles Grassley (R), head of the Senate Judiciary Committee, writes a letter to the State Department. He asks if some of Clinton’s former top aides, including Huma Abedin, Jake Sullivan, and Philippe Reines have kept their security clearances “in light of the fact that classified information has been discovered” on Clinton’s private server.

However, the State Department declines to tell him, saying it won’t discuss the status of any individuals’ security clearance. (The New York Times, 7/6/2016)

It has previously been reported that Clinton and her former chief of staff Cheryl Mills have kept their security clearances.

May 2, 2016: The State Department changes its policy on when foreign intelligence should be considered classified.

State Department legislative liaison Julia Frifield sends a letter to the Senate indicating an apparent change in what information the State Department considers properly classified. The vast majority of redactions in Clinton’s emails are for foreign government information, to which Frifield refers as “FGI.”

Frifield writes, “Although the unauthorized release of FGI is presumed to cause harm to the national security—thereby qualifying as Confidential [level] classified information, department officials of necessity routinely receive such information through unclassified channels. For example, diplomats engage in meetings with counterparts in open settings, have phone calls with foreign contacts over unsecure lines, and email with and about foreign counterparts via unclassified systems. Diplomats could not conduct diplomacy if doing so violated the law.” As a result, not all such information should automatically be considered classified.

However, regulations in effect when Clinton was secretary of state called for FGI to be marked “confidential” unless it was designated “C/MOD” (for “confidential/modified handling”). But none of Clinton’s emails appear to have been given that designation. (Politico, 5/12/2016)

Late April 2016—Early May, 2016: Hacking attacks on a DNC consultant researching pro-Russian politicians in Ukraine lead DNC leaders to conclude the Russian government is behind such attacks.

160530AlexandraChalupaLinkedIn

Alexandra Chalupa (Credit: Linked In)

Alexandra Chalupa, a consultant for the Democratic National Committee (DNC), has been working for several weeks on an opposition research file about Paul Manafort, the campaign manager of Republican presidential nominee Donald Trump. Manafort has a long history of advising politicians around the world, including controversial dictators. Logging into her Yahoo email account, she gets a warning entitled “Important action required” from a Yahoo cybersecurity team. The warning adds, “We strongly suspect that your account has been the target of state-sponsored actors.”

Paul Manafort (Credit: Linked In)

Paul Manafort (Credit: Linked In)

Paul Manafort was a key adviser to Ukrainian President Viktor Yanukovych from 2004 until 2010. Yanukovych is a controversial figure frequently accused of widespread corruption and was overthrown after a massive series of protests in February 2014, and has since been living in Russia, protected by the Russian government. Chalupa had been drafting memos and writing emails about Manafort’s link to pro-Russian Ukrainian leaders such as Yanukovych when she got the warning. She had been in contact with investigative journalists in Ukraine who had been giving her information about Manafort’s ties there.

Chalupa immediately alerts top DNC officials. But more warnings from Yahoo’s security team follows. On May 3, 2016, she writes in an email to DNC communications director Luis Miranda, “Since I started digging into Manafort, these messages have been a daily occurrence on my Yahoo account despite changing my password often.”

160725ScreenshotCapturedYahooNews(1)

A photo capture of the Yahoo security warning appearing on DNC consultant Alexandra Chalupa’s computer screen. (Credit: Yahoo News)

In July 2016, she will tell Yahoo News, “I was freaked out,” and “This is really scary.” Her email message to Miranda will later be one of 20,000 emails released by WikiLeaks on July 22, 2016, showing that there was good reason to be concerned about hacking attempts.

Chalupa’s email to Miranda, results in concern amongst top level DNC officials. One unnamed insider will later say. “That’s when we knew it was the Russians,” since Russia would be very interested in Chalupa’s research and other countries like China would not. This source also says that as a precaution, “we told her to stop her research.”

Yahoo will later confirm that it did send numerous warnings to Chalupa, and one Yahoo security official will say, “Rest assured we only send these notifications of suspected attacks by state-sponsored actors when we have a high degree of confidence.” (Yahoo News, 7/25/2016)

May 3, 2016: Clinton maintains she and her “representatives” still have not been contacted by the FBI.

Brian Fallon (Credit: MSNBC)

Brian Fallon (Credit: MSNBC)

In an interview conducted on this day by MSNBC, Clinton is asked, “Have you been contacted or have your representatives been contacted” by the FBI to be interviewed as part of their investigation into her email scandal.

Clinton simply replies by saying “No” several times. (MSNBC, 5/3/2016

Two days later, it is reported that Clinton’s former aides were interviewed already, with Huma Abedin having been interviewed one month ago, on April 5, 2016. Furthermore, the FBI is planning to interview Clinton soon. (The Los Angeles Times, 5/5/2016) (Reuters, 5/5/2016)

Reuters will later notice the contradiction and ask Clinton spokesperson Brian Fallon about it. Fallon will cryptically reply, “What does ‘representatives’ mean to you, sir?” (Reuters, 5/5/2016) 

Fallon also calls the FBI investigation an “independent review.” (The Associated Press, 5/4/2016)

May 3, 2016: Clinton’s email scandal is likened to the charges that led to David Petraeus’ conviction.

Nathan Sales (Credit: Syracuse University)

Nathan Sales (Credit: Syracuse University)

Law professor Nathan Sales compares a possible indictment of Clinton with the conviction of former CIA Director David Petraeus in 2013.

He notes that Petraeus did not ultimately plead guilty to sharing classified information with his mistress and biographer, but to charges related to keeping the information in a desk drawer inside his house. “The conduct that is being investigated [in Clinton’s case]—keeping the documents on an unclassified server—that’s kind of the digital equivalent of locking it in your desk drawer, which is ultimately what did in General Petraeus. […] Based on what we do know so far, I think there is a not insignificant chance that a grand jury could look at the facts and say, ‘Actually, she may have violated various laws protecting classified information.’” (Rolling Stone, 5/3/2016)

May 4, 2016: Guccifer tells Fox News he accessed Clinton’s private server in 2013.

Guccifer (left) talks to Fox News reporter Catherine Herridge (right). (Credit: Fox News)

Guccifer (left) talks to Fox News reporter Catherine Herridge (right). (Credit: Fox News)

The Romanian hacker nicknamed Guccifer, whose real name is Marcel-Lehel Lazar, has been recently interviewed by Fox News. He claims for the first time that after breaking into the email account of Clinton confidant Sid Blumenthal in March 2013, he traced Clinton’s emails back to her private email server.

He tells Fox News, “For me, it was easy […] easy for me, for everybody.” He says he accessed her server “like twice.” He adds, “For example, when Sidney Blumenthal got an email, I checked the email pattern from Hillary Clinton, from Colin Powell, from anyone else to find out the originating IP [Internet Protocol address]. […] When they send a letter, the email header is the originating IP usually…then I scanned with an IP scanner.”

He said he then used some Internet programs to determine if the server was active and which ports were open. However, the server’s contents did “not interest” him at the time. “I was not paying attention. For me, it was not like the Hillary Clinton server, it was like an email server she and others were using with political voting stuff.”

If he breached the server, it appears he didn’t fully understand what he was seeing, and he has not claimed to have uncovered more of Clinton’s emails. He is interviewed from a US prison and has no documents to back up his claim. However, Fox News reports, “While [his] claims cannot be independently verified, three computer security specialists, including two former senior intelligence officials, said the process described is plausible and the Clinton server, now in FBI custody, may have an electronic record that would confirm or disprove Guccifer’s claims.”

Cybersecurity expert Morgan Wright comments, “The Blumenthal account gave him a road map to get to the Clinton server. […] You get a foothold in one system. You get intelligence from that system, and then you start to move.”

Guccifer claims he wants to cooperate with the US government, adding that he has hidden two gigabytes of data that is “too hot” and is “a matter of national security.”

The Clinton campaign responds, “There is absolutely no basis to believe the claims made by this criminal from his prison cell. In addition to the fact he offers no proof to support his claims, his descriptions of Secretary Clinton’s server are inaccurate.” (Fox News, 5/4/2016) 

Politico reports, “An internal FBI review of Clinton’s email records did not indicate traces of hacking” according to “a source familiar with the situation.” (Politico, 5/4/2016)

An FBI report in September 2016 will assert that Guccifer admitted in his FBI interview that he lied about his claim to have accessed Clinton’s server.

May 4, 2016: Guccifer also tells NBC News he accessed Clinton’s private server in 2013.

Guccifer (left) being interviewed by Cynthia McFadden (right) inside a Romanian prison complex. (Credit: NBC News)

Guccifer (left) being interviewed by Cynthia McFadden (right) inside a Romanian prison complex. (Credit: NBC News)

Hours after Fox News reports on recently interviewing Romanian hacker Guccifer, NBC News reports on their recent interview with Guccifer. Like the Fox News interview, the main story is that Guccifer claims to have gained access to Clinton’s private email server. He tells NBC News, “It was like an open orchid on the Internet. […] There were hundreds of folders.” He also calls her server “completely unsecured.”

An unnamed source with knowledge of the FBI’s Clinton investigation claims “that with Guccifer in US custody, investigators fully intend to question him about her server.”

While Fox News recently interviewed him in a US prison, NBC News interviewed him from a prison in Bucharest, Romania, where he was until he was extradited to the US in late March 2016. (NBC News, 5/4/2016)

LawNewz notes the timing, and asks, “Why would a major news network sit on such an explosive allegation—especially when the claim directly relates to a presidential candidate and the biggest story the 2016 presidential election cycle?” NBC News has not commented. (LawNewz, 5/4/2016)

An FBI report in September 2016 will assert that Guccifer admitted in his FBI interview that he lied about his claim to have accessed Clinton’s server.

May 4, 2016: A judge says Clinton may have to testify under oath in a court case.

US District Court Judge Emmet Sullivan has ordered some of Clinton’s former top aides to testify under oath about Clinton’s private email server and how the State Department handled Freedom of Information Act (FOIA) requests regarding Clinton’s emails. Based on what is revealed in those interviews, due to take place in the next two months, Sullivan says that a sworn deposition from Clinton herself “may be necessary.” Judicial Watch, who made the original FOIA requests, would have to file a separate request “at the appropriate time.”

The Associated Press notes, “That raises the possibility that Clinton could be ordered to testify in the midst of the presidential race.” (The Associated Press, 5/4/2016) (LawNewz, 5/4/2016)

May 4, 2016: Six former State Department officials are to be deposed under oath in the next two months.

Lewis Lukens (Credit: public domain)

Lewis Lukens (Credit: public domain)

US District Court Judge Emmet Sullivan says the depositions are necessary in order to determine if the department conducted an adequate search regarding Judicial Watch’s 2013 Freedom of Information Act (FOIA) request regarding the employment of Clinton aide Huma Abedin, since she had three outside jobs at one point.

Deposition questions are to be limited to the set-up and management of Clinton’s private server, since the department failed to reveal Clinton’s emails on the server in response to the FOIA request. The former aides due to be deposed in the next two months are:

  • Huma Abedin
  • Cheryl Mills
  • Bryan Pagliano
  • Patrick Kennedy
  • Stephen Mull
  • Lewis Lukens
  • plus, someone to be decided by the State Department.

Judicial Watch could make a video of their interviews public. (LawNewz, 5/4/2016) (The Associated Press, 5/4/2016)

May 5, 2016: Some of Clinton’s emails may remain private because of a legal precedent involving former Secretary of State Henry Kissinger.

US Secretary of State Hillary Clinton (R) and former US Secretary of State Henry Kissinger participate in "Conversations on Diplomacy, Moderated by Charlie Rose,” at the Department of State in Washington, DC, on April 20, 2011. AFP Photo/Jewel Samad (Photo credit should read JEWEL SAMAD/AFP/Getty Images)

Clinton and Henry Kissinger in Washington, DC, on April 20, 2011. (Credit: Jewel  Samad/AFP/Getty Images)

Kissinger made transcripts of some of his work-related phone calls. After he left office in January 1977, he took the only copies with him and eventually had them transferred to the Library of Congress, with tight restrictions on who could access them. A watchdog group sued for access, but the US Supreme Court ruled in a five-to-two decision that the State Department had no obligation to search for documents that had been removed, even if they had been improperly taken.

However, there is a footnote written by Justice William Rehnquist that the ruling might not apply when someone is actively trying to thwart the Freedom of Information Act (FOIA).

In two ongoing civil suits, judges have granted discovery to Judicial Watch in part to determine if Clinton or her aides had actively tried to thwart FOIA. That opens the possibility of a judge eventually ordering Clinton to hand over even the emails she deemed personal, if she still has them. (Time, 5/5/2016)

May 5, 2016: The FBI is planning to interview Clinton soon.

Former US Attorney Matthew Whitaker (Credit: public domain)

Former US Attorney Matthew Whitaker (Credit: public domain)

It is reported that the FBI is likely to interview Clinton in “the next few weeks.” Clinton’s top aides have been interviewed in recent weeks and it appears Clinton will be interviewed last, at the very end of the FBI’s investigation. (Reuters, 5/5/2016) 

Former federal prosecutor Steven Levin says, “This certainly sends the signal that they are nearing an end to their investigation.” And while the FBI has not said that Clinton is the main target of their investigation, Levin notes that, “Typically, the way we structured investigations when I was a federal prosecutor is that we would seek to interview the target last.”

Former US attorney Matthew Whitaker says the FBI will only “ask her questions that they know the answers to already.” Their aim is to get her to confess to a crime, or to lie, which also would be a crime. (The Hill, 5/8/2016)

May 5, 2016: The State Department may postpone releasing documents about Clinton’s email security procedures until after the November 2016 presidential election.

Jason Koebler (Credit: Vice News)

Jason Koebler (Credit: Vice News)

In March 2015, shortly after Clinton’s exclusive use of a private email and server was first publicly revealed, Vice News filed a Freedom of Information Act (FOIA) request with the State Department for all “communications, presentations, and procedures created by the State Department to secure Hillary Clinton’s email from electronic threats.” In 2015, the Department began releasing some relevant emails, but no other relevant documents have been released.

After two delays, on this day, Vice News is told by the Department that the “estimated completion date” for the FOIA request has been “extended to December 2016.”

Vice News reporter Jason Koebler comments, “The FOIA process is a notorious mess, but it is patently ridiculous that records pertaining to the security practices of someone who stands a very good chance of running the country—and thus being in possession of highly sensitive documents at all times—won’t be made available to the public a year and a half after they were requested.” (Vice News, 5/5/2016)

May 5, 2016: It is reported that some of Clinton’s aides have recently been interviewed by the FBI as part of their Clinton email investigation.

CNN reports that “In recent weeks, multiple aides have been interviewed—some more than once,” according to unnamed US officials. Only Clinton’s former deputy chief of staff Huma Abedin is mentioned by name, who was interviewed at least once, on April 5, 2016. The FBI “has been quietly bringing witnesses into an FBI office without drawing attention.” They are likely to try to do the same when Clinton herself gets interviewed in the coming weeks. (CNN, 5/5/2016) (The Los Angeles Times, 5/5/2016)

May 5, 2016: CNN alleges the FBI has not proven that Clinton “willfully” broke the law; the investigation could conclude within weeks.

CNN reports, “The investigation is still ongoing, but so far investigators haven’t found evidence to prove that Clinton willfully violated the law the US officials say.” However, nothing has been said about crimes that did not involve willful violation of the law, such as gross negligence, or unsecure possession of classified material.

Unnamed officials also claim that “The probe remains focused on the security of the server and the handling of classified information and hasn’t expanded to other matters.”

Furthermore, “FBI officials overseeing the probe now expect to complete their work in the next few weeks and then turn over the findings to the Justice Department, which will make a final decision on whether to bring charges against anyone.” (CNN, 5/5/2016)

May 5, 2016: Accounts differ on the results of the FBI’s Clinton investigation so far.

The Washington Post reports, “Prosecutors and FBI agents investigating Hillary Clinton’s use of a personal email server have so far found scant evidence that the leading Democratic presidential candidate intended to break classification rules, though they are still probing the case aggressively with an eye on interviewing Clinton herself, according to US officials familiar with the matter.” Additionally, “One official said prosecutors are wrestling with the question of whether Clinton intended to violate the rules, and so far, the evidence seemed to indicate she did not.” (The Washington Post, 5/5/2016)

However, a few hours later, NBC News cites unnamed US officials who have a different point of view. “As for where the investigation stands, these officials say it is a long way from over. […] No conclusions have been reached about whether any laws were violated in setting up or using the system, the officials say.” (NBC News, 5/5/2016)

May 5, 2016: “Rocket docket” prosecutors are working with the FBI on the Clinton investigation.

Federal Prosecutor Dana Boente (Credit: public domain

Federal Prosecutor Dana Boente (Credit: public domain

It is reported that FBI investigators looking into Clinton’s email scandal have been joined by prosecutors from the US Attorney’s Office in the Eastern District of Virginia. The district is commonly nicknamed the “rocket docket” for the speed with which cases move through it. It is home to the CIA and the Pentagon, so it often deals with national security and terrorism cases. The office is led by veteran federal prosecutor Dana Boente. Prosecutors from the office have been working with the FBI to interview Clinton’s top aides. (The Washington Post, 5/5/2016)

May 5, 2016: 36 more Clinton emails are publicly released, suggesting many more still to come.

In January 2016, a federal judge ordered the State Department to release all the known emails of Huma Abedin from her time as Clinton’s deputy chief of staff. This is in response to a Freedom of Information Act (FOIA) lawsuit by Judicial Watch.

Over 29,000 pages of emails are due to be released in batches, and this is the first batch of 241 pages. Some of the emails are between Abedin and Clinton, and most if not all of them appear to be work-related, showing yet again that Clinton did not turn over all her work-related emails when she gave the State Department over 30,000 emails in December 2014.

21 of the emails between Abedin and Clinton date from January 28, 2009 to March 17, 2009; Clinton had said she didn’t use her new email account until March 18, 2009.

Another 15 emails between them date between March 18, 2009 to October 20, 2012, and do not match any of emails in the State Department’s database of the 30,000 publicly released Clinton emails. Whereas 16 emails dating from March 20, 2009 to May 28, 2009 do appear in that database. (Judicial Watch, 5/5/2016) (US Department of State, 5/1/2016) (US Department of State, 5/1/2016) 

Judicial Watch President Tom Fitton comments, “These emails further undermine Hillary Clinton’s statement, under penalty of perjury, suggesting she turned over all of her government emails to the State Department. How many more Hillary Clinton emails is the Obama State Department hiding?” (Judicial Watch, 5/5/2016) Since these emails appear to be:

  • a more or less random selection from all four years of Clinton’s time as secretary of state
  • about half of the emails from March 18, 2009 and afterwards are not included in the 30,000 previously released emails
  • this batch makes up less than one percent of all the Huma Abedin emails due to be released
  • Abedin’s emails make up only about 15 percent of the 30,000 emails

One can reasonably estimate that thousands of the over 31,000 emails Clinton deleted actually are work-related and are likely to be publicly released in later batch releases of Abedin’s emails as well as FOIA lawsuits forcing the release of emails from other top Clinton aides. In fact, if this sample is a truly random sample representative of the rest of the emails from Abedin and other top Clinton aides, well over 10,000 of Clinton’s deleted emails could be work-related.

May 8, 2016: Clinton says she’s “more than ready to talk to anybody, anytime” about her email scandal.

Clinton appears on Face the Nation, May 8, 2016. (Credit: CBS)

Clinton appears on Face the Nation, May 8, 2016. (Credit: CBS)

Clinton says in an interview that when it comes to her email scandal, “I’m more than ready to talk to anybody, anytime. And I’ve encouraged all of…my assistants to be very forthcoming. And I hope that this is close to being wrapped up.” She also adds that the FBI still has yet to contact or interview her regarding their investigation. “No one has reached out to me yet.” (CNN, 5/8/2016)

May 9, 2016: Blumenthal refuses to say if the FBI has interviewed him.

Clinton confidant Sid Blumenthal is asked if the FBI has interviewed him as part of their Clinton email investigation. He replies, “You know, I don’t really want to talk about an ongoing inquiry right now.” He says he will wait to speak until after the investigation is over. (The Hill, 5/9/2016)

In September 2016, it will be revealed Blumethal was interviewed by the FBI in January 2016.

May 9, 2016: Clinton’s text messages can’t be found.

In March 2016, the Republican National Committee (RNC) filed a Freedom of Information Act (FOIA) request for more of Clinton’s communications. For the first time, that included a request for all of her text and Blackberry Messenger communications.

However, on this day, the RNC states in a court filing that the State Department has recently informed them that it has not found any documents responsive to that request. (ABC News, 5/9/2016) It is possible some texts could still be on Clinton’s BlackBerry, but it is unclear what happened to it, as there have been no media reports that it was given to the FBI.

May 10, 2016: A key record keeping official says the disappearance of Pagliano’s emails “stink to high heavens.”

Daniel Metcalfe (Credit: Diego M. Radzinschi / Legal Times)

Daniel Metcalfe (Credit: Diego M. Radzinschi / Legal Times)

Dan Metcalfe, director of the Justice Department’s Office of Information and Privacy for 25 years, comments on news that the State Department can’t find the emails of Clinton’s computer technician Bryan Pagliano: “If it is true that federal records directly documenting his work no longer exist, then that is awfully coincidental, to put it most charitably—especially given the nature of his work and the role he has played in the Clinton email controversy.”

He adds, “And it certainly now raises reasonable suspicion, as it did with the Senate a few months ago, that something was very much amiss here—either with record creation or record preservation, or both. For someone who has taken the Fifth regarding his government activity, it is more than suspicious that his agency suddenly determine that the records that you would ordinarily expect it to have maintained about his work are just not there. […] In short, the whole thing stinks to high heavens.” (LawNewz, 5/10/2016)

May 10, 2016: The New York Times reports that 18 of Clinton’s publicly released emails have been deemed classified on the grounds that they identified CIA officials.

The Times claims that, “In 18 emails, for example, information has been classified on the grounds that it identifies CIA officials, including two instances that are now considered “secret.” (The New York Times, 5/10/2016) 

However, this is not entirely accurate. A search of the State Department’s database of Clinton’s released emails indicates that 49 emails used the code “B3 CIA PERS/ORG,” which indicates a redacted mention of secret CIA personnel or organizational details. Many of these are emails from the same email chain. But there are in fact five separate chains mentioning the name of a CIA official classified at the “secret” level, not two. (US Department of State, 1/29/2016) (US Department of State, 2/29/2016) (US Department of State, 1/29/2016) (US Department of State, 1/29/2016) (US Department of State, 1/29/2016

There are 17 more separate email chains that have the redacted names of secret CIA officials, for a total of 22, not 18. Additionally, it has previously been reported that a “handful” of additional emails make veiled references to the fact that certain government officials actually work for the CIA. (NBC News, 2/4/2016)

May 10, 2016: A recent interview shows differences between FBI investigators and Justice Department prosecutors in the Clinton email investigation.

Cheryl Mills (right) and her attorney Beth Wilkinson (left) (Credit: Getty Images)

Cheryl Mills (right) and her attorney Beth Wilkinson (left) (Credit: Getty Images)

The Washington Post reports that Clinton’s former aide Cheryl Mills was recently interviewed by the FBI as part of their Clinton investigation. (It will later be revealed the interview took place on April 9, 2016.) Not long after it started, an FBI investigator asked Mills about how Mills chose which of Clinton’s emails to turn over to the State Department and which ones to delete.

It has been reported that process was done by Mills along with Clinton associates David Kendall and Heather Samuelson. However, Mills’ lawyer Beth Wilkinson and the Justice Department had agreed the topic would be off-limits. Mills and Wilkinson left the room, but they returned a short time later. Ultimately, Mills was not asked about that topic.

The Washington Post reports that Justice Department “prosecutors were somewhat taken aback that their FBI colleague had ventured beyond what was anticipated…” The topic was considered off-limits because “it was considered confidential as an example of attorney-client privilege.” Mills is a lawyer, but she served as Clinton’s chief of staff and it has never been reported that she has legally represented Clinton.

The Post also reports, “It is not completely unknown for FBI agents and prosecutors to diverge on interview tactics and approach, and the people familiar with the matter said Mills answered investigators’ questions.” (The Washington Post, 5/10/2016)

May 11, 2016: FBI Director James Comey says the FBI is conducting an “investigation” into Clinton’s emails and server, not a “security inquiry.”

Speaking to reporters, he adds, “We’re conducting an investigation […] That’s what we do. […] It’s in our name [the Federal Bureau of Investigation]. I’m not familiar with the term ‘security inquiry.’” Clinton and her spokespeople have repeatedly referred to it as a “security inquiry” or a “security referral.”

Comey also says that he feels “pressure” to complete the Clinton investigation soon, but “I don’t tether to any external deadline,” such as the Democratic convention in July 2016. He otherwise deflects questions about the investigation, saying it is on-going. (Politico, 5/11/2016) (The New York Times, 5/11/2016) (The Hill, 5/11/2016) (FBI, 5/14/2016)

May 11, 2016: Vanity Fair publishes an article with the title, “Is Hillary’s Email Nightmare About to Explode?”

The article comments, “While Hillary Clinton is busy trying to put the Democratic primary race behind her and pivot to the general election against presumptive GOP nominee Donald Trump, the past several days have served as a stark reminder that Clinton is not yet clear of a potential scandal that still threatens to derail her campaign: the FBI is nearing the completion of its investigation into her use of a private server to send classified emails, with the results expected be released before November. Negative headlines about Clinton’s e-mails have seemed to be reaching critical mass in recent days.” (Vanity Fair, 5/11/2016)

May 12, 2016: Clinton could be the subject or even the target of an FBI criminal investigation.

Ellen Glasser (Credit: Paul Squire)

Ellen Glasser (Credit: Paul Squire)

Politifact gets opinions on the FBI’s Clinton investigation from several experienced former officials who have no specific inside knowledge of the case.

Ellen Glasser, a retired FBI official who worked on mishandled classified information cases, says, “We don’t do these [investigations] because we’re curious. There’s a potential that a criminal violation took place. […] My experience tells me that Hillary Clinton is a subject of a criminal investigation.”

Mark Pollitt, former head of the FBI’s computer forensics program, says, “You don’t know if it’s criminal until you get to the end of it.” Noting that the investigation has lasted for at least nine months, he adds, “If this thing was dead on arrival, nobody would be willing to keep this thing going.”

However, it is still unknown if Clinton is a subject or target of the investigation. A “target” is someone who prosecutors believe is linked to a crime by substantial evidence. It is common practice for prosecutors to tell people if they are targets if they ask. However, it doesn’t appear that Clinton has asked. She has claimed that she has had no contact with the FBI about the investigation so far. (Politifact, 5/12/2016)

May 12, 2016: Over 120 additional Clinton emails are publicly released.

More of Clinton’s emails from her time as secretary of state are released by the State Department, due to Freedom of Information Act (FOIA) lawsuits by Judicial Watch. In 2015, Clinton claimed that she didn’t start using her new private email address until March 18, 2009. But all these emails date from before then.

There are 15 emails using her old email address from January 22, 2009 (one day after she became secretary of state) to February 26, 2009. There are another 108 emails using her new email address (hosted on her private server) from January 30, 2009 to March 8, 2009. (Judicial Watch, 5/12/2016) (US Department of State, 4/29/2016) (US Department of State, 4/29/2016) (US Department of State, 4/29/2016) 

LawNewz notes that this email release “contradicts claims made by Clinton and her campaign that she did not begin using the private e-mail server until March 2009. […] The dates of the newly released e-mails also appear to contradict a declaration signed by Clinton, under penalty of perjury, saying she surrendered all her work-related e-mails to the State Department on December 5, 2014.” (LawNewz, 5/13/2016)

May 13, 2016: Clinton clearly violated the Federal Records Act (FRA), but the act is “effectively toothless” when it comes to punishing her.

Dan Metcalfe, director of the Justice Department’s Office of Information and Privacy for 25 years, writes an editorial noting that penalties for violating the FRA are limited to monetary or administrative sanctions, and those can only be applied to people who are still federal employees when violations are discovered.

He says that Clinton’s conduct with her emails “violated the Federal Records Act from beginning to end, including through what appears to be her utter failure to meet any of the requirements placed on a departing employee. This amounts to what can be viewed as the biggest, most consequential violation of the FRA in its history, as well as a blatant circumvention of the FOIA [Freedom of Information Act] the likes of which have never before been seen.” However, she will face no penalty for violating this law because she is no longer a federal employee.

Metcalfe calls for Congress to “update the Federal Records Act to provide meaningful sanctions” to prevent others from doing what Clinton did. Nevertheless, Metcalfe says he is a Democrat and will support Clinton if she is not indicted. (LawNewz, 5/13/2015)