While the New York Times has reported that the “State Department’s inspector general sharply criticized Hillary Clinton’s exclusive use of a private email server” and “undermined some of Mrs. Clinton’s previous statements”, the report did far more than criticize and undermine. It directly contradicted Clinton’s assertions on a number of key points. It further indicated not only clear violations of the State Department rules, but rules that were made clear to Clinton and her staff. (The Washington Post took a more critical view of Clinton’s statements in light of the report). Moreover, while this report deals with State regulations and rules (as well as the Federal Records Act), it does have bearing on the ongoing criminal investigation to the degree that it shows knowledge or reckless disregard of the security protocols and rules. It does show precisely that.
The report clearly establishes a number of damaging facts. First, the State Department made clear that a personal server was not allowed and would present serious security risks for the country. Second, Clinton never asked or received permission for such a server. Third, the State Department would
never have approved such a server. Fourth, Clinton’s objections to using the secure State Department system was not convenience (as she previously stated) but access to her personal emails. Fifth, her actions failed to comply with the Federal Records Act. Sixth, Clinton suspected that she was being hacked but continued to use her personal server exclusively. Finally, the report indicates that Clinton did not fully cooperate with the subsequent inquiries and investigation.
The contradictions with past statements are glaring and will not help Clinton already historic lows for trustworthiness or honesty with voters. For example, in March 2015 Clinton stated at a press conference that:
“Third, after I left office, the State Department asked former Secretaries of State for our assistance in providing copies of work-related emails from our personal accounts. I responded right away and provided all my emails that could possibly be work-related, which totalled roughly 55,000 printed pages, even though I knew that the State Department already had the vast majority of them. We went through a thorough process to identify all of my work- related emails and deliver them to the State Department.”
However the statement department found that
“At a minimum, Secretary Clinton should have surrendered all emails dealing with Department business before leaving government service and, because she did not do so, she did not comply with the Department’s policies that were implemented in accordance with the Federal Records Act.”
She waited two years to turn over emails after deleting tens of thousands deemed “private.”
Likewise, Clinton previously insisted “under the Federal Records Act, records are defined as reported information, regardless of its form or characteristics, and in meeting the record keeping obligations, it was my practice to email government officials on their state or other .gov accounts so that the emails were immediately captured and preserved.” This has led to the dubious claim that over 90 percent of the emails were preserved due to the recipients being in the system. However, no one has supported that still repeated claim and the State Department did not have those emails. The report further states “sending emails from a personal account to other employees at their Department accounts is not an appropriate method of preserving any such emails that would constitute a federal record.” It further noted that these emails were not saved beyond a couple years and thus could not be viewed as complying with the system.
Clinton also repeatedly stated “It was allowed under the rules of the State Department. And, again . . . it was allowed. You know, one of my predecessors did the same thing. Others in our government have done the same thing at very high levels because the rules did change after I left state department. But at the time and in prior years the rules allowed it.”
However, the State Department clearly and unambiguously rejected this claim. It states that she never asked permission to use her own server and that such a request would have been denied. It further said that the security risks for such an act were clearly high and would never have been considered as acceptable.
Clinton has also insisted that she has always been entirely cooperative and transparent with the State Department. However, the State Department said that Clinton declined to be interviewed by the State Department’s inspector general as did top aides.
Does this mean that she will clearly be charged with a crime? No. Does this have bearing on a criminal investigation? Yes. Prosecutors often look at elements like (1) a failure to fully disclose or cooperate with an investigation; (2) knowledge or reckless disregard of security protections; (3) awareness of the danger of hacking; (4) false statements made in the wake of disclosure; and (5) the circumvention of standard procedures or personnel. Notably, Clinton acknowledges that she believed that there may have been a hacking effort, but still retained her personal server. Moreover, while part secretaries of state are referenced for sending unprotected emails, Clinton is clearly identified as being a far more egregious case in the use of her own server and taking these actions after the use of such a server was clearly improper.
I have been writing that the security violations involved in the email system are serious and should not be dismissed by the media or the public. As is often case in Washington, the scandal was made worse by the habitual denials and evasion from the Clinton camp. The odds still favor Clinton in avoiding criminal charges but she and her staff have maximized their exposure through their actions and public statements.
What is fascinating is that the spin from Clinton supporters is now the final line of defense: there is no evidence that she was actually hacked. Many of us have expressed our view that such hacking or compromise of the system seems highly likely since the Secretary of State is one of the priority targets for foreign intelligence. Moreover, a hacker who says that he routinely hacked the account has pleaded guilty and is cooperating with the government. This spin seems an effort to kick the can down the road to get beyond the convention and secure the nomination before this new line of defense could be contradicted. That is a continuation of the approach from the outset of not getting out in front of the scandal but evading the allegations and adding layers of denial. The Clinton team seems absolutely confident that the Administration will not move on any criminal charges but that is a considerable risk, particularly for top aides implicated in these findings.