State Department and Intelligence Agencies Ask For An Investigation in the Clinton Email Scandal

225px-Hillary_Clinton_official_Secretary_of_State_portrait_cropIn a major development on the Clinton email scandal, the New York Times is reporting that the inspectors general for the State Department and the intelligence community have asked the Justice Department to open an investigation into whether there was mishandling of classified information by Hillary Clinton using a personal email account while secretary of state. While the newspaper referred to the action as a criminal referral, the Administration quickly moved to counter the story and insist that it is not technically a criminal referral. We have previously discussed this story and the insistence of Clinton that she did nothing wrong in maintaining a private email system and that none of the emails were classified. I disagreed with both premises as well as expressed great skepticism over Clinton’s insistence that she was really not trying to control her emails and insulate them from review but rather simply did not want to carry around two phones. According to the New York Times, investigators believe that Clinton’s email archive contained “hundreds of potentially classified emails.” Nevertheless, the Justice Department appears to be moving to counter any expectation of a criminal investigation against the former Secretary of State under Obama. We have previously discussed the special treatment historically given powerful figures in violating national security rules or practices.

That is if anything a conservative estimate. As I discussed earlier, virtually anything coming out of the office of the Secretary of State would be considered classified as a matter of course. I have had a TS/SCI clearance since Reagan due to my national security work and have lived under the restrictions imposed on email and other systems. The defense is that this material was not technically classified at the time that it was sent. Thus it was not “classified” information. The problem is that it was not reviewed and classified because it was kept out of the State Department system. Moreover, most high-level communications are treated as classified and only individually marked as classified when there is a request for disclosure. You do not generate material as the Secretary of State and assume that it is unclassified. You are supposed to assume and treat it as presumptively classified. Otherwise, there would be massive exposure of classified material and willful blindness as to the implications of the actions of persons disregarding precautions. For example, there is not a person standing next to the President with a classification stamp in the Oval Office. However, those communications are deemed as presumptively classified and are not disclosed absent review. Under the same logic, the President could use a personal email system because his text messages by definition are not marked as classified. This is the whole reason that Clinton and others were told to use the protected email system run by the State Department. We have spent hundreds of millions of dollars to secure such systems.

US-DeptOfJustice-Seal_svgThe Justice Department has confirmed that it has a request for an inquiry and I fail to see any basis upon which it would not open an investigation. This is a major escalation and will make it more difficult for Clinton to maintain the past spin on the scandal as a purely political hatchet job.

It will also make Clinton’s order to destroy thousands of emails even more problematic. Those emails might now be considered to be potential evidence of a crime like destroying classified papers that you improperly brought home and than insisting that you judged them to be unclassified. The investigation could also expose her aides to criminal questioning under the threat of 18 U.S.C. 1001. That could lead to disclosure of what they were told and what they saw in the emails. It also means that the continued refusal of Clinton to turn over the server will be increasingly difficult to maintain.

As impressive as this exclusive statement is for the Times, there is a controversy over changes made at the request of the Clinton campaign that were not disclosed. Politico is reporting that the Clinton campaign insisted on a change of a line that read that the inspector generals asked for an investigation “into whether Hillary Rodham Clinton mishandled sensitive government information on a private email account she used as secretary of state.” That was changed to “into whether sensitive government information was mishandled in connection with the personal email account Hillary Rodham Clinton used as secretary of state.” The headline was also changed from “Criminal Inquiry Sought in Hillary Clinton’s Use of Email” to “Criminal Inquiry Is Sought in Clinton Email Account.” Both changes are obviously designed to give Clinton a little deniability as to her own role and accountability. However, she has never denied being fully aware that she was electing to circumvent the State Department account for her communications. Indeed, she has indicated that it was a conscious decision based on her earlier views of convenience and multiple phones. Her repeatedly claim that she was never subject to a subpoena has been described as false by media like CNN after it was disclosed that she had indeed been given a subpoena for the emails.

If there is an investigation, this means that Clinton will have to continue much of her campaign facing a possible criminal indictment and subject to questioning from investigators. It will also mean that media will be hard pressed to ignore the story or accept the past soundbites on convenience or political motivations. It also means that, while Clinton has described the release of the emails as “kind of fun,” it is about to get a lot less fun.

205 thoughts on “State Department and Intelligence Agencies Ask For An Investigation in the Clinton Email Scandal”

  1. Back on topic.

    Is there anyone here that believes government employees should be allowed to use private email accounts and servers for government business outside of direct management, oversight and accountability?

  2. Paul:

    Similar to government agencies violating the 4th Amendment rights of the Occupy Movement or Black Lives Matters (legal constitutional exercises by citizens) today, those same agencies were blacklisting other legal constitutional exercises dating back at least to the 1980’s.

    Those 1980’s blacklistees were added to post 9/11 blacklists so the net result was innocent Americans exercising LEGAL constitutional right were destroyed and some even likely killed after 9/11 for non-terrorism and non-crimes.

    Condi Rice was hip deep in this entire program and there are U.S. State Deptartment emails regarding these unconstitutional programs. Unconstitutional activities have never been “official duties” which means government officials’ personal assets are not protected under Sovereign Immunity protections.

  3. The duopoly will NEVER allow a truly independent investigative watchdog. NEVER!!

  4. And why the hell are we spending even a minute discussing Rick Perry? Is a discussion about Lincoln Chafee, another candidate w/ ZERO chance next? I do love it when Crazy Joe Biden’s name is thrown out there. I love the smell of desperation in the morning. It smells like..victory.

  5. Olly:

    Yes, if we have a “rule of law” government then we need a non-partisan idependent watchdog so that nobody is above the U.S. Constitution and it’s subordinate federal, state and local laws. If government agencies are allowed to punish conservative groups for legal constitutional exercises, that same tyranny can be used against any other group also.

  6. “Biden, Sanders, Warren and even Clinton are terrific nominees. The Peter Principle personified.”

    Well maybe. But the real question is who, on the scene, is better.

    Would any reasonable person dare entrust the nation to a governor who has run his state into the ground with fantastical ideas that if we just reduce tax enough the economy will take off and generate needed tax revenue? Again and again that has not happened – yet these dolts persist despite clear evidence to the contrary, to the detriment of every citizen except the very top few percent.

  7. SWM, The first words a Clinton operative learns to say is, “Not fair.” I know stupid sycophants will always defend the Clintons. The smart people need to stop doing it.

  8. Ross,
    I agree. It should not matter what political party is in power. We need the DOJ to independently investigate ALL cases where crimes have allegedly taken place. Would you then support the appointment of a special prosecutor to lead an independent investigation into the Benghazi attack and the IRS targeting of conservative groups?

  9. Biden, Sanders, Warren and even Clinton are terrific nominees. The Peter Principle personified.

    1. penelope The court only tossed one of the charges. Of course, most judges in Texas are GOP so there is zero chance Perry will do any prison time or even be convicted. Just as Tom DeLay’s conviction for money laundering was tossed by the Appeals Court’s holding that a check does NOT constitute cash or money! So in Texas as long as you do everything by check, and not cash, it will be legal.

  10. The interesting legal argument in the Condi Rice case was that in 1999 WH executive privilege and sovereign immunity did not protect her from prosecution but the Bush Justice Department refused to investigate and actually allowed material evidence to be destroyed when made aware of it around 2003. The Bush DOJ’s dereliction of duty changed the outcome of a federal court case, a constitutional lawsuit to overturn unconstitutional post 9/11 policies and practices.

    Loretta Lynch should appoint a special prosecutor (independent of the DOJ) to do what the Bush DOJ refused to do – a real independent investigation. Rice was only asked for an official apology for her role in these war crimes against an innocent citizen for legal Freedom of Speech exercises – too late for apologies now!

  11. SWM,
    Does being indicted disqualify Perry from running? Imagine the power the sitting President would have to use the DOJ to indict potential candidates. No, that would never happen.

  12. SWM, you are so right. The distinction is that it is not a criminal investigation on Hillary Clinton. I do think she would serve her nation and party well to step down. Biden or Sanders would make a good nominee, who knows maybe Warren or someone will step forward, if Clinton stepped down.

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