It is hard to imagine that the president and others never noticed that Clinton was using a nongovernment, nonsecure private account. Indeed, emails prove that many of them did know.10 But the secretary of state was surrounded by long-time Clinton cronies. They shielded her. They were not about to challenge the person they were certain would become the next president of the United States.
Clinton’s disdain for regulations and statutory law was also evident in her use of BlackBerrys linked to her home server, despite warnings from State Department security personnel.11 According to an FBI report, she insisted on keeping her mobile device in an area where they were not allowed because hackers can infiltrate them to record classified discussions.12 While on foreign visits, Clinton incessantly used her unprotected BlackBerry to send or receive dozens of confidential emails that were susceptible to interception by foreign governments.13 She ignored security protocols and the law with impunity.
Clinton’s Server Discovered
Before Clinton left office in early 2013, FOIA requests seeking information about her emails resulted in terse statements from the State Department that no such records could be located.14 No wonder. Clinton had stealthily kept all her emails on her private server and never preserved them on a government account as regulations required. These vacuous responses to FOIA demands should have immediately raised red flags of alarm.
It was not until 2014 when the House Benghazi Committee began investigating the September 11, 2012, terrorist attack in Libya during Clinton’s tenure that the true nature and extent of her secret server began to slowly unfold. During the summer of 2014, the Committee demanded access to her emails which prompted the State Department to contact Clinton who was now out of office. Negotiations among lawyers ensued and, several months later on December 5, 2014, Clinton reluctantly handed over 30,490 emails from her private account. Simultaneously, she withheld some 31,839 emails, insisting they were private and personal.15
At least one of Clinton’s lawyers, Heather Samuelson, who helped sort the emails that included classified documents, appeared to have no security clearance in violation of the law.16 Although Clinton later stated under oath that she had provided all work-related emails, this was not true. According to then-FBI director James B. Comey, thousands of work-related emails were improperly held back by Clinton.17
Upon examining the large cache of documents provided by Clinton’s attorneys, the Benghazi Committee realized something was amiss: as secretary of state, Clinton had never used her secure government account for any of her communications. Instead, she had conducted all of her business on an unsecured account on a private server located in the basement of her residence. It was, in essence, a hacker’s paradise. Confidential information was exposed to theft. Foreign governments with their sophisticated computer expertise could readily access America’s classified secrets. Clinton’s egregious breach of rules, regulations, and laws jeopardized national security.
New York Times broke the story wide open on March 2, 2015, creating a firestorm of controversy with immense political consequences for Clinton, just as she prepared to launch another bid for president of the United States in the next month.18 Her actions, decried by many as irresponsible and reckless, called into question both her judgment and competency to hold the highest public office in the land. More important, Clinton’s unmitigated disregard for the law quickly metastasized into allegations of criminal wrongdoing.
Clinton’s Attempts to Cover Up
Initially, Clinton employed a phalanx strategy of “no comment.” It did not quell the gathering storm. On March 10, 2015, she decided to address the matter with reporters by holding a news conference.19 It was an unqualified disaster. Under questioning, she appeared unsteady in front of cameras, unsure of her answers and seeming to prevaricate at every turn. Her statements stretched credulity.
Clinton insisted, “I did not email any classified material to anyone on my email. There is no classified material.”20 That remark was brazenly untrue. Clinton had sent numerous classified emails on her unauthorized and unsecured server.
Later, when faced with evidence that contradicted her claim, Clinton changed her story significantly by stating, “I am confident that I never sent or received any information that was classified at the time it was sent or received.”21 In other words, she claimed the classifications were made retroactively. But this amended statement was also false. In truth, the FBI confirmed that 110 of her emails contained classified information at the time they were sent or received.22
As the emerging facts continued to belie Clinton’s statements, she altered her story for a third time by claiming, “I never sent or received any email that was marked classified.”23 Translation: the classified documents on her email server were unmarked and, as such, she could not be expected to know that they were classified. But this was another untrue statement. It earned her four Pinocchios, the worst rating, from the Washington Post “Fact Checker,” Glenn Kessler.24
Many of Clinton’s emails were, indeed, marked classified, as the FBI later revealed. While testifying before the House Committee on Oversight and Government Reform, Director Comey called Clinton’s statement “not true.”25 Moreover, the markings were irrelevant under the law, since the content—not the marking—made them classified.
It is important to note that knowledge of a document’s classification status is of no legal consequence. Thus, it was no defense for Clinton to claim she did not know that matters were classified. As secretary of state, she was privy to many of the nation’s most guarded secrets. Did they have to be specifically marked “Top-secret” or “classified” for her to recognize them for what they were? Over the course of four years, she was America’s top diplomat with direct access to the most sensitive information and data. Assuming a modicum of competency, classified information should have been recognized by her instantaneously.
Still, Clinton seemed to be arguing her own incompetence. That is, she should not be held legally liable because she was too uninformed or inept to recognize classified materials without their markings. But ignorance and maladroitness are not defenses under the law. This rendered Clinton’s explanations of her actions all the more unconvincing.
One of the more outlandish, if not comical, explanations offered by Clinton during her FBI interview was that she did not realize that the parenthetical “C” meant classified material at the confidential level when it appeared on documents.26 She claimed that she thought it simply a way of organizing messages in alphabetical order, although there were no other letters used in this way on the same records.
Several former FBI officials interviewed for this book accused Clinton of deliberately deceiving the FBI during her interview. Bill Gavin, who first joined the bureau in 1967 and became assistant director, did not believe her rationale for one moment:
“C” stands for cunning. She knew exactly. You cannot have access to classified information without going through the briefings, fully understand what the briefings are telling you and then signing off on documents admitting that you understood what the briefings have said. To say she didn’t understand what “C” meant is just a bald-faced lie. She understood what was going on. She didn’t care because she knew she was allowed to do anything she wanted to do.27
Oliver “Buck” Revell, who spent thirty years with the FBI and rose to become the associate deputy director, called Clinton’s alibi absurd:
She didn’t know what the “C” on top of the documents meant? No one believed her. She didn’t even believe it herself. That’s so nonsensical. It’s just ridiculous. I think it reflected a total disregard of the system and the rules that have been established to protect the system. She exposed the nation’s secrets through her emails. She took the privileged approach to virtually everything she’s ever done in her life, disregarding the rules and regulations that apply to everyone else.28
All the excuses offered by Clinton were subsequently contradicted by both the FBI and the inspector general at the S
tate Department. Undaunted by her series of demonstrably false statements, she then resorted to a blanket assertion that her actions were legally permissible. In a July 7, 2015, interview, Clinton insisted:
Everything I did was permitted. There was no law. There was no regulation. There was nothing that did not give me the full authority to decide how I was going to communicate. Everything I did was permitted by law and regulation.29
This was another audaciously untrue assertion by Clinton that earned her three Pinocchios from the Washington Post “Fact Checker.”30 Her claim was also disproven by the State Department’s own inspector general who took office after Clinton left her post but investigated her conduct while she was in office. First, the IG found that Clinton “did not comply with the Department’s policies that were implemented in accordance with the Federal Records Act.”31 Second, the IG determined that Clinton never sought approval for her server and, had she done so, it would have been rejected as a risk to national security.32 Third, the IG learned that employees who voiced concerns about the private server were instructed “to never speak of the Secretary’s personal email system again.”33 Fourth, the IG concluded that any classified material “never should have been transmitted via an unclassified personal system.”34
A federal judge also voiced his disbelief in Clinton’s rationalizations and alibis. During a FOIA lawsuit by a nonprofit group called Judicial Watch to recover emails, U.S. District Judge Emmet G. Sullivan scolded Clinton over her disdain for the law when he said, “We wouldn’t be here today if this employee had followed government policy.”35
Clinton Knew She Broke the Law
Clinton certainly knew that she was breaking the law when she made the conscious decision to use a personal server for all her work that would, as secretary of state, necessarily involve classified information, including “top-secret” records.
On January 22, 2009, the day after she was sworn into office, she signed a document titled “Classified Information Nondisclosure Agreement,” which stated the following:
I have been advised that the unauthorized disclosure, unauthorized retention, or negligent handling of classified information by me could cause damage or irreparable injury to the United States or could be used to advantage by a foreign nation. I have been advised that any unauthorized disclosure of classified information by me may constitute a violation or violations, of U.S. criminal laws.36
Importantly, the document instructed Clinton that classified material may not always be marked as classified on the face of the documents, but that it would still be considered classified information. Thus, she was bound by law to protect it in a secure place, not in her home.
A second document entitled “Sensitive Compartmented Information Nondisclosure Agreement” executed by Clinton that same day acknowledged that she had received a comprehensive security briefing that instructed her on all the applicable laws involving sensitive information and classified materials and how those documents must be kept secure.37
Clinton could hardly claim amnesia as a defense, since she sent an order to every State Department employee two years later, on June 28, 2011, cautioning them not to do what she was doing covertly in violating the law. Clinton’s order warned: Avoid conducting official Department business from your personal email accounts.38
There is little doubt that Hillary Clinton flagrantly and shamelessly ignored not only State Department regulations, but federal laws making it a crime to mishandle classified documents. She may also have had a direct hand in the destruction of evidence.
On March 4, 2015, Congress sent a letter to Clinton instructing her to preserve all her emails.39 Subpoenas were sent immediately thereafter. The request included both work-related emails and any of those she had previously withheld as “personal.”
Three weeks later, on March 25, more than thirty thousand of Clinton’s emails were deleted. It is unclear how many of those emails might have been relevant to the subpoenas since they have vanished. Her server was wiped clean by using a file-deleting software program called BleachBit.40
The act of defying a congressional subpoena is impudent at best, criminal at worst. Destruction of records in any federal investigation constitutes obstruction of justice and a violation of the Federal Records Act.41
While the FBI did manage to recover several thousand deleted emails that were, in fact, work-related, no charges were ever brought against Clinton or anyone else involved in their deletion and destruction.
Former assistant director of the FBI Steve Pomerantz is convinced Clinton knew she was breaking the law, but didn’t care:
It is consistent with everything I know about the Clintons. They make their own rules, and it’s wrong. Hillary Clinton engaged in conduct that was dangerous to the national security of the United States. And, of course, lying about it only compounds the problem. The Clintons have a history of lying. That’s what they do. First they commit the offense, then they lie about it. That’s what they do.42
It is revealing that Clinton spent five months refusing to turn over her email server to either the Benghazi Committee or the FBI, despite repeated demands to do so. In the end, she relented when faced with the likelihood that Bureau agents would begin serving search warrants to seize it on their own. Fearing a knock on the door of her private residence, Clinton finally capitulated.
Although Clinton is a trained lawyer who graduated from Yale Law School, she seemed oblivious to the law. Or, more likely, she felt that the law did not apply to her. Yet there is no station in life or standing in government that absolves someone from criminal conduct. In this way, we are all creatures of the law and are bound to obey it. An orderly society cannot function if it permits individuals to disregard the law with impunity.
This fundamental principle, enunciated by the U.S. Supreme Court more than a century ago, is what gives sustenance to our democracy. Without it, lawlessness, chaos, and tyranny at the hands of the few would surely ensue. It follows, then, that Clinton is no higher or lower than any American. She must abide by the rule of law regardless of her condition or circumstance.
Former independent counsel Joseph diGenova is convinced Clinton did not care about complying with the law:
Mrs. Clinton knew precisely what she was doing. She chose to ignore the law. There is simply no explanation other than that. The requirements of the law were too oppressive for her. She was different. She viewed herself differently. These restraints and constraints were something that were for other people—not for her—because she was a special, special person.
I think what is true about Mrs. Clinton is that she had enablers around her all the time. No one was strong enough or willing to tell her she shouldn’t do certain things because they all wanted to be part of the big game which ended with her being President of the United States.43
The Law
Whenever a government official creates or obtains a record during the course and scope of his or her employment, the Federal Records Act and the Foreign Affairs Manual require that it be captured and preserved by the agency.44 Clinton did not do so at any time during her service as secretary of state, thereby violating the law on a daily basis for four years. Every single one of her work-related emails constituted federal records, not her personal property.
It is no excuse under the law that others with whom Clinton communicated via email within the State Department may have kept their own records in the agency system or elsewhere. The records on Clinton’s system were never concurrently archived at the Department of State. She communicated with many other people who were not employees of the agency or government and these emails were never captured or archived. At no time was Clinton ever authorized to create her own private server for record-keeping.
Clinton should have been charged with stealing government documents. Converting government records for personal use is a felony under the law. It is, in a word, theft. Consider 18 U.S.C. 641:
Whoever embezzles, steals, purloins, or knowingly converts to his use o
r the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof . . . or whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted . . . shall be fined under this title or imprisoned not more than ten years, or both.45
Isn’t this precisely what Clinton did? She converted government documents for her use on a private server in her home. Only after she was out of office and under legal pressure from the Benghazi Committee did she give some of the documents to the State Department nearly two years later. That’s like stealing a car, but only giving it back after being caught by authorities red-handed. The return of the car does not vitiate the crime.
But Clinton also concealed, removed, and destroyed government documents and wiped her private record-keeping server clean by using a file-deleting software even though she had been instructed by Congress to preserve all documents. The FBI later discovered that thousands of work-related documents had never been turned over by her to the federal government, thus depriving the government of its property. On this basis, Clinton violated 18 U.S.C. 2071(b):
Whoever, having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both.46
Clinton created a private server for all her official communications as secretary of state. In so doing, she purposefully deprived the government of the documents that belonged not to her, but to the government.47 Case law supports a criminal prosecution under these facts.48
But there is more. By her own admission, Clinton directed that all her emails be deleted. Although Clinton had promised to cooperate fully with the Benghazi Committee and its demand to preserve and produce documents, her lawyer, David Kendall, subsequently sent a letter to the House Benghazi Committee on March 27, 2015, confirming that both personal and business emails had been removed from his client’s server and backup systems.49
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