The US government posts an internal guide on how to deal with “spillage”—the common term for classified information accidentally getting onto an unclassified system. The guide, “National Instruction on Classified Information Spillage,” explains how such errors should be assessed and reported. One step mentioned for more severe cases is: “Determine whether the incident should be referred to the Department of Justice for investigation and/or criminal prosecution.” (The New York Times, 8/8/2015)
The foundation is not legally obliged to do so, but there is political pressure, with this being the first day of Hillary Clinton’s Senate confirmation hearing for her to become the next secretary of state.
The list shows that over 200,000 donors gave at least $492 million dollars since the foundation was founded in 1997. Exact contribution amounts are unknown because the list only gives ranges. At least $46 million comes directly from foreign governments such as Saudi Arabia. The foundation promises to reveal all future donors on a yearly basis, and new foreign government donations will be scrutinized by “government ethics officers.” Some donations come from sources that could lead to controversy or conflicts of interest.
For instance, the Blackwater security firm donated between $10,001 to $25,000. The Associated Press notes the company is “at risk of losing its lucrative government contract to protect US diplomats in Iraq.”
The Internet company Yahoo, as well as its top executives Jerry Yang, Frank Biondi, and Terry Semel donated as well. The Associated Press comments that the company has been “involved in disputes over surrendering Internet information to Chinese authorities that led to the imprisonment of dissidents there.”
Also, Victor Dahdaleh gave between $1 million to $5 million. He is a Canadian investor involved in aluminum production. He has been sued for fraud and bribery by a Bahrain aluminum company, and the Justice Department opened a criminal investigation about it. (The Associated Press, 1/18/2009) Dahdaleh will be acquitted in the legal case in 2013. But he will be implicated in a different financial scandal in 2016. (Yahoo Finance, 5/25/2016)
The New York Times reports that “two inspectors general have asked the Justice Department to open a criminal investigation” into whether sensitive government information was mishandled in Clinton’s emails. (The FBI works for the Justice Department.)
The next day, a Justice Department confirms the report. But later in the day, the Justice Department backs away from its characterization of the referral as “criminal.” (The New York Times, 7/24/2015) (The Washington Post, 7/24/2015) Indeed, such a request was made on July 6, 2015. But technically, the referral is called a “security referral” and not a criminal one.
However, it will later emerge that the FBI investigation into Clinton’s emails actually began in late May 2015, thus making the dispute over the type of referral largely a moot point. (CNN, 8/20/2015)
In a mass email sent to Clinton supporters, Clinton’s communications director Jennifer Palmieri says that investigations by the FBI and other government agencies into Clinton’s use of a private email account and private server are partisan attacks “designed to do political damage to Hillary in the run-up to the election.”
Palmieri claims that that Clinton is not facing a criminal investigation. “The bottom line: This kind of nonsense comes with the territory of running for president. We know it, Hillary knows it, and we expect it to continue from now until Election Day.” (The Chicago Tribune, 8/12/2015)
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)
When asked if the FBI could be facing political pressure from Clinton, Earnest says that President Obama “has reiterated his commitment to this principle that any criminal investigation should be conducted independent of any sort of political interference.”
Republican National Committee spokesperson Michael Short soon comments, “The White House’s admission that the FBI is investigating Hillary Clinton’s email server as a ‘criminal’ matter shreds her dishonest claim that it is a routine ‘security inquiry.’” Earnest later comments that he has no inside knowledge of the exact nature of the investigation. (Politico, 6/9/2016)
US District Court Judge Emmet Sullivan is presiding over a case in which former Clinton aide Bryan Pagliano is fighting giving a deposition. Sullivan comments, “The privacy interests at stake are high because the government’s criminal investigation through which Mr. Pagliano received limited immunity is ongoing and confidential.” As part of the case, Sullivan is privy to information from the FBI that has not been made public.
Politico points out that this is the first “explicit confirmation that the investigation—which Clinton has repeatedly referred to as a ‘security review’—is actually a criminal probe.” (Politico, 6/14/2016)
FBI Director James Comey gives a public speech in front of a group of reporters. The timing is surprising, since this brings an end to the FBI’s investigation of Clinton’s email practices, and just a Sunday and the Fourth of July holiday separate this from the FBI’s interview of Clinton on July 2, 2016. Comey spends most of his speech criticizing Clinton, but ends it by saying he will not recommend that the Justice Department pursue any indictment of Clinton or her aides.
Comey’s fifteen-minute speech includes the following information, in order, with key phrases bolded to assist in understanding.
Comey begins by describing the FBI investigation:
- The investigation started with a referral from Intelligence Community Inspector General Charles McCullough, and “focused on whether classified information was transmitted” on Clinton’s personal email server during her time as secretary of state. It specifically “looked at whether there is evidence classified information was improperly stored or transmitted on that personal system, in violation of a federal statute making it a felony to mishandle classified information either intentionally or in a grossly negligent way, or a second statute making it a misdemeanor to knowingly remove classified information from appropriate systems or storage facilities.” The FBI “also investigated to determine whether there is evidence of computer intrusion in connection with the personal email server by any foreign power, or other hostile actors.”
- The FBI found that Clinton “used several different servers and administrators of those servers during her four years at the State Department, and used numerous mobile devices to view and send email on that personal domain. As new servers and equipment were employed, older servers were taken out of service, stored, and decommissioned in various ways…”
- The FBI analyzed the over 30,000 work emails that Clinton did turn over to the State Department in December 2014, working with other US government departments to determine which emails contained truly classified information at the time they were sent, and which ones were justifiably classified later.
From the group of 30,068 emails Clinton returned to the State Department, “110 emails in 52 email chains have been determined by the owning agency to contain classified information at the time they were sent or received. Eight of those chains contained information that was ‘top secret’ at the time they were sent; 36 chains contained ‘secret’ information at the time; and eight contained ‘confidential’ information, which is the lowest level of classification. Separate from those, about 2,000 additional emails were ‘up-classified’ to make them ‘confidential’; the information in those had not been classified at the time the emails were sent.”
- It had previously been reported that the FBI had recovered most or all of the 31,830 emails that Clinton had deleted, allegedly because they contained personal information only. However, Comey reveals that was not the case, and thousands of emails were not recovered. He gives an example of how when one of Clinton’s servers was decommissioned in 2013, the email was removed and broken up into millions of fragments.
- The FBI “discovered several thousand work-related emails” that were not included in the 30,068 emails Clinton returned to the State Department, even though Clinton claimed under oath that she had returned all her work-related emails. The FBI found these after they “had been deleted over the years and we found traces of them on devices that supported or were connected to the private email domain.” Others were found in the archived government email accounts of other government employees whom Clinton frequently communicated with. Still others were found “from the laborious review of the millions of email fragments” of the server decommissioned in 2013.
- Out of these additional work emails, three were classified at the time they were sent or received – none at the ‘top secret’ level, one at the ‘secret’ level, and two at the ‘confidential’ level. None were found to have been deemed classified later.
- Furthermore, Comey claims “we found no evidence that any of the additional work-related emails were intentionally deleted in an effort to conceal them. Our assessment is that, like many email users, Secretary Clinton periodically deleted emails or emails were purged from the system when devices were changed. Because she was not using a government account—or even a commercial account like Gmail—there was no archiving at all of her emails, so it is not surprising that we discovered emails that were not on Secretary Clinton’s system in 2014, when she produced the 30,000 emails to the State Department.”
However, he also admits that “It could also be that some of the additional work-related emails we recovered were among those deleted as ‘personal’ by Secretary Clinton’s lawyers when they reviewed and sorted her emails for production in 2014.” He claims that the three lawyers who sorted the emails for Clinton in late 2014 (David Kendall, Cheryl Mills, and Heather Samuelson) “did not individually read the content of all of her emails…” Instead, they used keyword searches to determine which emails were work related, and it is “highly likely their search terms missed some work-related emails” that were later found by the FBI elsewhere.
- Comey states it is “likely” that some emails may have disappeared forever. because Clinton’s three lawyers “deleted all emails they did not return to State, and the lawyers cleaned their devices in such a way as to preclude complete forensic recovery.” But he says that after interviews and technical examination, “we believe our investigation has been sufficient to give us reasonable confidence there was no intentional misconduct in connection with that sorting effort.”
Comey then begins stating his findings:
- “Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.”
- As an example, he points out that “seven email chains concern matters that were classified at the ‘Top Secret/Special Access Program’ [TP/SAP] level when they were sent and received. These chains involved Secretary Clinton both sending emails about those matters and receiving emails from others about the same matters. There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation.”
- He adds that it was a similar situation with emails classified at the “secret” level when they were sent, although he doesn’t specify how many.
- He comments, “None of these emails should have been on any kind of unclassified system, but their presence is especially concerning because all of these emails were housed on unclassified personal servers not even supported by full-time security staff, like those found at departments and agencies of the US government—or even with a commercial service like Gmail.”
- He notes that “only a very small number of the emails containing classified information bore markings indicating the presence of classified information. But even if information is not marked ‘classified’ in an email, participants who know or should know that the subject matter is classified are still obligated to protect it.”
- He then criticizes the State Department as a whole. The FBI found evidence that “the security culture” of the State Department “was generally lacking in the kind of care for classified information found elsewhere in the government.” This was especially true regarding the use of unclassified email systems.
- Then he addresses whether “hostile actors” were able to gain access to Clinton’s emails. Although no direct evidence of any successful hacking was found, he points out that “given the nature of the system and of the actors potentially involved, we assess that we would be unlikely to see such direct evidence. We do assess that hostile actors gained access to the private commercial email accounts of people with whom Secretary Clinton was in regular contact from her personal account. We also assess that Secretary Clinton’s use of a personal email domain was both known by a large number of people and readily apparent. She also used her personal email extensively while outside the United States, including sending and receiving work-related emails in the territory of sophisticated adversaries. Given that combination of factors, we assess it is possible that hostile actors gained access to Secretary Clinton’s personal email account.”
After laying out the evidence of what the FBI found, Comey moves to the FBI’s recommendation to the Justice Department. He admits that it is highly unusual to publicly reveal the FBI’s recommendation, but “in this case, given the importance of the matter, I think unusual transparency is in order.”
Then he comes to these conclusions:
- “Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past.”
- To justify this decision, he claims he examined other cases involving the mishandling or removal of classified information, and “we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.”
- He then says, “To be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences. To the contrary, those individuals are often subject to security or administrative sanctions. But that is not what we are deciding now. As a result, although the Department of Justice makes final decisions on matters like this, we are expressing to Justice our view that no charges are appropriate in this case.”
- He concludes by saying the FBI’s investigation was done competently, honestly, and independently, and without any kind of outside influence.
He doesn’t address the possibility of recommending the indictment of any of Clinton’s aides or other figures like Sid Blumenthal or Justin Cooper. He also doesn’t make any mention of the Clinton Foundation, though there have been media reports the FBI has been investigating it as well. After finishing his speech, he leaves without taking any questions from the media. (Federal Bureau of Investigation, 7/5/2016)