December 11, 2015: Emails from Clinton’s computer technician are missing.

The State Department has told Senate investigators that it cannot find the emails of Bryan Pagliano, the Clinton aide who managed her private server. Department officials found a “.pst file” which contains back-up copies of Pagliano’s emails from the time period after Clinton was secretary of state, but his .pst file for Clinton’s time as secretary of state is missing. But it is also revealed that the FBI has taken possession of Pagliano’s government computer, and it is hoped that some of all of the emails will be found there. Senate investigators want the email to help determine if Pagliano should be offered immunity in return for testimony. (Politico, 12/11/2015) 

However, it will later emerge that Pagliano was given immunity by the FBI some months earlier. (The New York Times, 3/3/2016)

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)

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)