Hillary Clinton email controversy

Former Secretary of State Hillary Clinton testifying before the House Select Committee on Benghazi

The Hillary Clinton email controversy began in March 2015, when it became publicly known that Hillary Clinton, during her tenure as United States Secretary of State, had exclusively used her family's private email server for official communications, rather than official State Department email accounts maintained on federal servers. Those official communications included thousands of emails that would later be marked classified by the State Department.

Debate continues as to the propriety and legality of various aspects of Secretary Clinton's arrangement. Some experts, officials, and members of Congress have contended that her use of private messaging system software, a private server, and her deletion of nearly 32,000 emails that she and her lawyer regarded as private, violated State Department protocols and procedures, as well as federal laws and regulations governing recordkeeping. In response, Clinton has said that her use of personal email was in compliance with federal laws and State Department regulations, and that former secretaries of state had also maintained personal email accounts.

Nearly 2,100 emails on the server have been retroactively marked as classified by the State Department. They were not marked as classified at the time they were sent. This includes 65 emails deemed "Secret" and 22 deemed "Top Secret". Government policy, reiterated in the non-disclosure agreement signed by Clinton as part of gaining her security clearance, is that sensitive information should be considered and handled as classified even if not marked as such. After allegations were raised that some of the emails in question fell into this category, a probe was initiated by the Federal Bureau of Investigation (FBI) regarding how classified information was handled on the Clinton server. The controversy continues against the backdrop of Clinton's 2016 presidential election campaign and hearings held by the United States House Select Committee on Benghazi.

Background

BlackBerry phones

Prior to her appointment as Secretary of State, Clinton and her circle of friends and colleagues communicated via BlackBerry phones. State Department security personnel suggested this would pose a security risk during her tenure, so she was not allowed to take her BlackBerry into her private office. The email account used on Clinton's BlackBerry was then hosted on a private server in the basement of her home in Chappaqua, New York, but that information was not disclosed to State Department security personnel or senior State Department personnel. It proved impractical to find a solution, even after consulting the National Security Agency, which would have allowed Clinton to use her BlackBerry, or a similarly secure device, in her office. Setting up a secure desktop computer in her office was suggested, but Clinton was unfamiliar with their use. Efforts to find a secure solution were abandoned, and Clinton was warned by State Department security personnel about the vulnerability of an unsecured BlackBerry to hacking. She affirmed her knowledge of the danger, and was reportedly told that the Bureau of Diplomatic Security had obtained intelligence about Clinton's vulnerability while she was on a trip to Asia, but continued to use her BlackBerry outside her office.[1]

Domain names and email server

At the time of Senate confirmation hearings on Hillary Clinton's nomination as Secretary of State, the domain names clintonemail.com, wjcoffice.com, and presidentclinton.com were registered to Eric Hoteham,[2] with the home of Clinton and her husband in Chappaqua, New York, as the contact address.[3][4] The domains were pointed to a private email server that Clinton (who never had a state.gov email account) used to send and receive email, and which was purchased and installed in the Clintons' home for her 2008 presidential campaign.[5][6]

The email server was located in the Clintons' home in Chappaqua, New York until 2013, when it was sent to a data center in New Jersey before being handed over to Platte River Networks, a Denver-based information technology firm that Clinton hired to manage her email system.[7][8][9][10][11] Datto, Inc., which provided data backup service for Clinton's email, agreed to give the FBI the hardware that stored the backups.[12] As of April 2016, no answer had been provided to the public as to whether 31,000 emails deleted by Hillary Clinton as personal have been or could be recovered.[13]

Initial awareness

As early as 2009, officials with the National Archives and Records Administration (NARA) expressed concerns over possible violations of normal federal government record-keeping procedures at the Department of State under Secretary Clinton.[14]

Emails sent to Clinton's private clintonemail.com address were first discovered in March 2013, when a hacker named "Guccifer" widely distributed emails sent to Clinton from Sidney Blumenthal, which Guccifer obtained by illegally accessing Blumenthal's email account.[15][16][17] The emails dealt with the 2012 Benghazi attack and other issues in Libya and revealed the existence of her clintonemail.com address.[15][16][17] Blumenthal did not have a security clearance when he received material from Clinton that has since been characterized as classified by the State Department.[18][19]

In the summer of 2014, lawyers from the State Department noticed a number of emails from Clinton's personal account, while reviewing documents requested by the House Select Committee on Benghazi. A request by the State Department for additional emails led to negotiations with her lawyers and advisors. In October, the State Department sent letters to Clinton and all previous Secretaries of State back to Madeleine Albright requesting emails and documents related to their work while in office. In December, more than 50,000 printed pages of emails from Clinton's personal email account were delivered to the State Department, and the State Department subsequently transferred the Benghazi-related emails to the committee.[20]

A March 2, 2015 New York Times article broke the story that the Benghazi panel had discovered that Clinton exclusively used her own private email server rather than a government-issued one throughout her time as Secretary of State, and that her aides took no action to preserve emails sent or received from her personal accounts as required by law.[21][22][23] At that point, Clinton announced that she had asked the State Department to release her emails.[20] Some in the media labeled the controversy "emailgate".[24][25][26]

Use of private server for government business

According to Clinton's spokesperson Nick Merill, a number of government officials have used private email accounts for official business, including secretaries of state before Clinton.[27] State Department spokesperson Marie Harf said that: "For some historical context, Secretary Kerry is the first secretary of state to rely primarily on a state.gov email account."[21] John Wonderlich, a transparency advocate with the Sunlight Foundation, observed while many government officials used private email accounts, their use of private email servers was much rarer.[28] Dan Metcalfe, a former head of the Justice Department's Office of Information and Privacy, said this gave her even tighter control over her emails by not involving a third party such as Google and helped prevent their disclosure by Congressional subpoena. He added: "She managed successfully to insulate her official emails, categorically, from the FOIA, both during her tenure at State and long after her departure from it — perhaps forever", making it "a blatant circumvention of the FOIA by someone who unquestionably knows better".[21][29]

According to Department spokesperson Harf, use by government officials of personal email for government business is permissible under the Federal Records Act, so long as relevant official communications, including all work-related emails, are preserved by the agency.[21] The Act (which was amended in late 2014 after Clinton left office to require that personal emails be transferred to government servers within 20 days) requires agencies to retain all official communications, including all work-related emails, and stipulates that government employees cannot destroy or remove relevant records.[21] NARA regulations dictate how records should be created and maintained, require that they must be maintained "by the agency", that they should be "readily found", and that the records must "make possible a proper scrutiny by the Congress".[21] Section 1924 of Title 18 of the United States Code addresses the deletion and retention of classified documents, under which "knowingly" removing or housing classified information at an "unauthorized location" is subject to a fine, or up to a year in prison.[21]

Experts such as Metcalfe agree that these practices are allowed by federal law assuming that the material is not supposed to be classified,[27][30] or at least these practices are allowed in case of emergencies,[22] but they discourage these practices, believing that official email accounts should be used.[21] Jason R. Baron, the former head of litigation at NARA, described the practice as "highly unusual" but not a violation of the law. In a separate interview, he said, "It is very difficult to conceive of a scenario—short of nuclear winter—where an agency would be justified in allowing its cabinet-level head officer to solely use a private email communications channel for the conduct of government business."[22][31][32] Baron told the Senate Judiciary Committee in May 2015 that "any employee's decision to conduct all email correspondence through a private email network, using a non-.gov address, is inconsistent with long-established policies and practices under the Federal Records Act and NARA regulations governing all federal agencies".[33]

Server security and hacking attempts

In 2008, before Hillary Clinton became Secretary of State, Justin Cooper, a longtime aide to Clinton's husband, former President Bill Clinton, managed the system. Cooper had no security clearance or expertise in computer security.[34] Later, Bryan Pagliano, the former IT director for Clinton's 2008 presidential campaign, was hired to maintain their private email server while Clinton was Secretary of State.[35][36] Pagliano had invoked the Fifth Amendment during congressional questioning about Clinton's server. In early 2016, he was granted immunity by the Department of Justice in exchange for cooperation with prosecutors.[37][38] A Clinton spokesman said her campaign was "pleased" Pagliano was now cooperating with prosecutors.[39]

Security experts such as Chris Soghoian believe that emails could be at risk of hacking and foreign surveillance.[40] Marc Maiffret, a cybersecurity expert, said that the server had "amateur hour" vulnerabilities.[41] For the first two months after Clinton was appointed Secretary of State and began accessing mail on the server through her Blackberry, transmissions to and from the server were apparently not encrypted. On March 29, 2009 a “digital certificate" was obtained which would have permitted HTTPS encryption.[1]

Former Director of the Defense Intelligence Agency Michael T. Flynn,[42] former United States Secretary of Defense Robert Gates,[43][44] and former deputy director of the Central Intelligence Agency Michael Morell[45][46] have said that it is likely that foreign governments were able to access the information on Clinton's server. Michael Hayden, former Director of the National Security Agency, Principal Deputy Director of National Intelligence, and Director of the Central Intelligence Agency said "I would lose all respect for a whole bunch of foreign intelligence agencies if they weren't sitting back, paging through the emails."[47]

Clinton's server was configured to allow users to connect openly from the Internet and control it remotely using Microsoft's Remote Desktop Services.[41][48] It is known that hackers in Russia were aware of Clinton's non-public email address as early as 2011.[49] Server records also show that, using a computer in Serbia, a hacker had scanned Clinton's Chappaqua server at least twice, in August and in December 2012. It was unclear whether the hacker knew the server belonged to Clinton, although it did identify itself as providing email services for clintonemail.com.[41] During 2014, Clinton's server was the target of repeated intrusions originating in Germany, China, and South Korea. Threat monitoring software on the server blocked at least five such attempts. The software was installed in October 2013, and for three months prior to that, no such software had been installed.[50][51]

According to Pagliano, security logs of Clinton's email server showed no evidence of successful hacking.[52] The New York Times reported that "forensic experts can sometimes spot sophisticated hacking that is not apparent in the logs, but computer security experts view logs as key documents when detecting hackers," adding the logs "bolster Mrs. Clinton's assertion that her use of a personal email account [...] did not put American secrets into the hands of hackers or foreign governments.[40][52][53]

Romanian hacker Guccifer claimed he successfully hacked Clinton's server, but provided no proof of his claim.[54] U.S. investigators found no evidence to support the assertion,[55] and Clinton press secretary Brian Fallon said "There is absolutely no basis to believe the claims made by this criminal from his prison cell."[56][57]

Classified information in emails

Nearly 2,100 emails contained in Clinton's server were retroactively marked classified by the State Department, though they were not marked at the time they were sent. 65 emails were found to contain information classified as "Secret", more than 20 contained "Top-Secret" information, and the rest contained "Confidential" information.[58][59][60] Clinton personally wrote 104 emails, and her aides authored hundreds of emails that contained information later determined to be classified.[61]

A main point of contention in the controversy is if Clinton passed information through her mail server that was classified at the time, which would be improper because it was a private, non-secured channel.[62]

Official statements

A June 29, 2015 memorandum from the inspector general of the State Department, Steve A. Linick, said that a review of the 55,000-page email release found "hundreds of potentially classified emails".[63] A July 17, 2015 follow-up memo, sent jointly by Linick and the Intelligence Community (IC) inspector general, I. Charles McCullough III, to Under Secretary of State for Management Patrick F. Kennedy, stated that they had confirmed that several of the emails contained classified information that was not marked as classified, at least one of which was publicly released.[63] On July 24, 2015, Linick and McCullough said they had discovered classified information on Clinton's email account,[64] but did not say whether Clinton sent or received the emails.[64] Investigators from their office, searching a randomly chosen sample of 40 emails, found four that contained classified information that originated from U.S. intelligence agencies, including the Central Intelligence Agency (CIA) and the National Security Agency (NSA).[64] Their statement said that the information they found was classified when sent, remained so as of their inspection, and "never should have been transmitted via an unclassified personal system".[64]

In a separate statement in the form of a letter to Congress, McCullough said that he had made a request to the State Department for access to the entire set of emails turned over by Clinton, but that the Department rejected his request.[64][65] The letter stated that none of the emails were marked as classified, but because they included classified information they should have been marked and handled as such, and transmitted securely.[65]

On August 10, 2015, the IC inspector general said that two of the 40 emails in the sample were "Top Secret/Sensitive Compartmented Information" and subsequently given classified labels of "TK" (for "Talent Keyhole", indicating material obtained by spy satellites) and NOFORN.[66] One is a discussion of a news article about a U.S. drone strike operation.[66] The second, he said, either referred to classified material or else was "parallel reporting" of open-source intelligence, which would also be classified.[66][67] Clinton's presidential campaign and the State Department disputed the letter, and questioned whether the emails had been over-classified by an arbitrary process. According to an unnamed source, a secondary review by the CIA and the National Geospatial-Intelligence Agency endorsed the earlier inspectors general findings concluding that the emails (one of which concerned North Korea's nuclear weapons program) were "Top Secret" when received by Clinton through her private server in 2009 and 2011, a conclusion also disputed by the Clinton campaign.[68]

The IC inspector general issued another letter to Congress on January 14, 2016. In this letter he stated that an unnamed intelligence agency had made a sworn declaration that "several dozen emails [had been] determined by the IC element to be at the CONFIDENTIAL, SECRET, and TOP SECRET/SAP levels." Other intelligence officials added that the several dozen were not the two emails from the previous sample and that the clearance of the IC inspector general himself had to be upgraded before he could learn about the programs referenced by the emails.[69][70][71]

On January 29, 2016, the State Department announced that 22 documents from Clinton's email server would not be released because they contained highly classified information that was too sensitive for public consumption. At the same time, the State Department announced that it was initiating its own investigation into whether the server contained information that was classified at the time it was sent or received.[72]

In February 2016, Linick addressed another report to Kennedy, stating his office had also found classified material in 10 emails in the personal email accounts of members of former Secretary Condoleezza Rice's staff and in two emails in the personal email account of former Secretary Colin Powell.[73][74] None of the emails were classified for intelligence reasons.[75] PolitiFact found a year earlier that Powell was the only former secretary of state to use a personal email account.[76] In February 2016, Clinton's campaign chairman issued a statement claiming that her emails, like her predecessors', were "being inappropriately subjected to over-classification."[73][77]

FBI probe

The State Department and Intelligence Community (IC) inspector generals' discovery of four emails containing classified information, out of a random sample of 40, prompted them to make a security referral to the FBI's counterintelligence office, to alert authorities that classified information was being kept on Clinton's server and by her lawyer on a thumb drive.[64][65] As part of an FBI probe at the request of the IC inspector general, Clinton agreed to turn over her email server to the U.S. Department of Justice, as well as thumb drives containing copies of her work-related emails. Other emails were obtained by the United States House Select Committee on Benghazi from other sources, in connection with the committee's inquiry. Clinton's own emails are being made public in stages by the State Department on a gradual schedule. The FBI has not called its probe a formal investigation, but has suggested that the bureau's interest focuses on the broader question of how classified materials were handled — and not necessarily on launching a criminal inquiry.[78]

Clinton's IT contractors turned over her personal email server to the FBI on August 12, 2015,[11] as well as thumb drives containing copies of her emails.[79][80] In a letter describing the matter to Senator Ron Johnson, Chairman of the Senate Homeland Security Committee, Clinton's lawyer David E. Kendall said that emails, and all other data stored on the server, had earlier been erased prior to the device being turned over to the authorities, and that both he and another lawyer had been given security clearances by the State Department to handle thumb drives containing about 30,000 emails that Clinton subsequently also turned over to authorities.[81] Kendall said the thumb drives had been stored in a safe provided to him in July by the State Department.[81][81]

On August 20, 2015, U.S. District Judge Emmet G. Sullivan stated that Hillary Clinton's actions of maintaining a private email server were in direct conflict with U.S. government policy. "We wouldn't be here today if this employee had followed government policy," he said, and ordered the State Department to work with the FBI to determine if any emails on the server during her tenure as Secretary of State could be recovered.[82][83][84] Platte River Networks, the Denver-based firm that managed the Clinton server since 2013, said it had no knowledge of the server being wiped, and indicated that the emails that Clinton has said were deleted could likely be recovered. "Platte River has no knowledge of the server being wiped," company spokesman Andy Boian told the Washington Post. "All the information we have is that the server wasn't wiped."[85] When asked by the Washington Post, the Clinton campaign declined to comment.[85]

In September 2015, FBI investigators were engaged in sorting messages recovered from the server.[86] In November 2015, the FBI expanded its inquiry to examine whether Clinton or her aides jeopardized national security secrets, and if so, who should be held responsible.[87][88]

Conflicting media sources sized the FBI investigation from 12[89] to 30 agents[90] as of March 2016.

Journalists and experts

According to the New York Times, if Clinton was a recipient of classified emails, "it is not clear that she would have known that they contained government secrets, since they were not marked classified."[64][91] The newspaper also reported that "most specialists believe the occasional appearance of classified information in the Clinton account was probably of marginal consequence."[5] Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists, said that inadvertent "spillage" of classified information into an unclassified realm is a common occurrence.[5]

An August 2015 review by Reuters of a set of released emails found "at least 30 email threads from 2009, representing scores of individual emails," that include what the State Department identifies as "foreign government information," defined by the U.S. government as "any information, written or spoken, provided in confidence to U.S. officials by their foreign counterparts."[91] Although unmarked, Reuters' examination appeared to suggest that these emails "were classified from the start."[91] J. William Leonard, a former director of the NARA Information Security Oversight Office, said that such information is "born classified" and that "If a foreign minister just told the secretary of state something in confidence, by U.S. rules that is classified at the moment it's in U.S. channels and U.S. possession."[91] According to Reuters, the standard U.S. government nondisclosure agreement "warns people authorized to handle classified information that it may not be marked that way and that it may come in oral form."[91] The State Department "disputed Reuters' analysis" but declined to elaborate.[91]

The Associated Press reported that "Some officials said they believed the designations were a stretch — a knee-jerk move in a bureaucracy rife with over-classification."[66] Jeffrey Toobin, in an August 2015 New Yorker article, wrote that the Clinton email affair is an illustration of overclassification, a problem written about by Senator Daniel Patrick Moynihan in his book Secrecy: The American Experience.[62] Toobin writes that "government bureaucracies use classification rules to protect turf, to avoid embarrassment, to embarrass rivals—in short, for a variety of motives that have little to do with national security."[62] Toobin wrote that "It's not only the public who cannot know the extent or content of government secrecy. Realistically, government officials can’t know either—and this is Hillary Clinton's problem.[62] Toobin noted that "one of Clinton's potentially classified email exchanges is nothing more than a discussion of a newspaper story about drones" and wrote: "That such a discussion could be classified underlines the absurdity of the current system. But that is the system that exists, and if and when the agencies determine that she sent or received classified information through her private server, Clinton will be accused of mishandling national-security secrets."[62]

Richard Lempert, in an analysis of the Clinton email controversy published by the Brookings Institution, wrote that "security professionals have a reputation for erring in the direction of overclassification."[92] Elizabeth Goitein, co-director of the liberty and national security program at the Brennan Center for Justice at New York University School of Law, says that "The odds are good that any classified information in the Clinton emails should not have been classified," since an estimated 50 percent to 90 percent of classified documents could be made public without risking national security.[92] Nate Jones, an expert with the National Security Archive at George Washington University, said: "Clinton's mistreatment of federal records and the intelligence community's desire to retroactively overclassify are two distinct troubling problems. No politician is giving the right message: Blame Clinton for poor records practices, but don't embrace overclassification while you do it."[92]

Responses and analysis

Clinton's response

Clinton spokesman Nick Merrill defended Clinton's use of the personal server and email accounts as being in compliance with the "letter and spirit of the rules." Clinton herself stated that she had done so only as a matter of "convenience."[93]

VOA News video on Clinton email controversy

On March 10, 2015, while attending a conference at the United Nations Headquarters in Manhattan, Clinton spoke with reporters for about 20 minutes.[94] Clinton said that she had used a private email for convenience, "because I thought it would be easier to carry just one device for my work and for my personal emails instead of two."[95][96] It was later determined that Clinton had used both an iPad and a BlackBerry while Secretary of State.[95][97][98][99]

She said that her staff would be turning over copies of 30,000 emails from her private server dated during her time at the State Department, that belonged in the public domain; she later explained that her lawyer included any emails that might be work-related. Her aides subsequently deleted another 32,000 emails from the server dated during the same time period, that she regarded as personal and private.[100][101]

In September 2015, Hillary was asked in an interview with Jimmy Fallon on The Tonight Show about the content of the emails. She laughed it off, saying there was nothing interesting and joking that she was offended people found her emails 'boring'.[102] She has used humor to shrug off the scandal before- on August 18, 2015, during a campaign event when asked if she tried to wipe the server, she replied with "what, like with a cloth or something?" [103][104]

Democratic response

In August 2015, the New York Times reported on "interviews with more than 75 Democratic governors, lawmakers, candidates and party members" on the email issue.[105] The Times reported that "None of the Democrats interviewed went so far as to suggest that the email issue raised concerns about Mrs. Clinton's ability to serve as president, and many expressed a belief that it had been manufactured by Republicans in Congress and other adversaries."[105] At the same time, many Democratic leaders showed increasing frustration among party leaders of Clinton's handling of the email issue.[105] For example, Edward G. Rendell, former governor of Pennsylvania, a Clinton supporter, said that a failure of the Clinton campaign to get ahead of the issue early on meant that the campaign was "left just playing defense."[105] Other prominent Democrats, such as Governor Dannel P. Malloy of Connecticut, were less concerned, noting that the campaign was at an early stage and that attacks on Clinton were to be expected.[105]

At the October 2015 primary debate, Clinton's chief rival for the Democratic presidential nomination, Senator Bernie Sanders of Vermont, defended Clinton, saying: "Let me say this. Let me say something that may not be great politics. But I think the secretary is right. And that is that the American people are sick and tired of hearing about your damn emails!" Clinton responded: "Thank you. Me too. Me too." Clinton and Sanders shook hands on stage.[106][107] According to the Los Angeles Times: "The crowd went wild. So did the Internet."[106][107] Sanders later said that "real issues" such as paid family and medical leave, college affordability, and campaign finance reform "are more important than Hillary Clinton's emails."[107]

Republican response

Republican National Committee chairman Reince Priebus said, in a statement regarding the June 30 email releases, "These emails … are just the tip of the iceberg, and we will never get full disclosure until Hillary Clinton releases her secret server for an independent investigation."[108] Gowdy, a Republican, said on June 29, 2015 that he would press the State Department for a fuller accounting of Clinton’s emails, after the Benghazi panel obtained 15 additional emails to Sidney Blumenthal that the department had not provided to the Committee.[109]

On September 12, 2015, Republican Senators Charles Grassley and Ron Johnson, chairmen of the Senate Judiciary and Homeland Security committees, respectively, said they will seek an independent review of the deleted emails, if they are recovered from Clinton's server, to determine if there are any government related items among those deleted.[85] The Justice Department (DOJ), on behalf of the State Department has argued that personal emails are not federal records, that courts lack the jurisdiction to demand their preservation, and defended Clinton's email practices in a court filing on September 9, 2015. DOJ lawyers argued that federal employees, including Clinton, are allowed to discard personal emails provided they preserve those pertaining to public business. "There is no question that former Secretary Clinton had authority to delete personal emails without agency supervision — she appropriately could have done so even if she were working on a government server," the DOJ lawyers wrote in their filing.[85]

Later responses by Clinton

Clinton's responses to the question, made during her presidential campaign, have evolved over time.[62][110] Clinton initially said that there was no classified material on her server.[62] Later, after a government review discovered some of her emails contained classified information, she said she never sent or received information that was marked classified.[62] Her campaign also said that other emails contained information that is now classified, but was retroactively classified by U.S. intelligence agencies after Clinton had received the material.[111]

Campaign spokesman Brian Fallon said: "She was at worst a passive recipient of unwitting information that subsequently became deemed as classified."[111] Clinton campaign spokeswoman Jennifer Palmieri has "stressed that Clinton was permitted to use her own email account as a government employee and that the same process concerning classification reviews would still be taking place had she used the standard 'state.gov' email account used by most department employees."[66][112] Palmieri later stated: "Look, 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."[7]

In her first national interview of the 2016 presidential race, on July 7, 2015, Clinton was asked by CNN's Brianna Keilar about her use of private email accounts while serving as Secretary of State. She said:

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. Previous secretaries of state have said they did the same thing…. Everything I did was permitted by law and regulation. I had one device. When I mailed anybody in the government, it would go into the government system.[113]

On September 9, 2015, Clinton apologized during an ABC News interview for using the private server, saying she was "sorry for that."[114]

Appearing on NBC's Meet the Press on September 27, 2015, Clinton defended her use of the private email server while she was secretary of state, comparing the investigations to Republican-led probes of her husband's presidential administration more than two decades ago, saying, "It is like a drip, drip, drip. And that's why I said, there's only so much that I can control".[115]

Clinton and the State Department said the emails were not marked classified when sent, but Clinton signed a non-disclosure agreement which stated that classified material may be "marked or unmarked".[116][117][118][119] Additionally, the author of an email is legally required to properly mark it as classified if it contains classified material, and to avoid sending classified material on a personal device, such as the ones used exclusively by Clinton.[120]

Comparisons and media coverage

Media commentators have drawn comparisons of Clinton's email usage to past political controversies.[121] Pacific Standard Magazine published an article in May 2015, comparing email controversy and her response to it with the Whitewater investigation 20 years earlier.[122]

In August 2015, Washington Post associate editor and investigative journalist Bob Woodward, when asked about Clinton's handling of her emails, said "they remind him of the Nixon tapes" from the Watergate scandal.[123] On March 9, 2015, Dana Milbank of the Chicago Tribune wrote that the "email fiasco shows that she's her own worst enemy", pointing out that Clinton herself had justifiably criticized the George W. Bush administration in 2007 for its "secret" White House email accounts.[124]

On Fox News Sunday, political analyst Juan Williams contrasted the media coverage of Clinton's emails to the coverage of the 2007 Bush White House email controversy.[125]

The Milwaukee Journal Sentinel published an editorial saying that "the only believable reason for the private server in her basement was to keep her emails out of the public eye by willfully avoiding freedom of information laws. No president, no secretary of state, no public official at any level is above the law. She chose to ignore it, and must face the consequences."[126][127] Pascal-Emmanuel Gobry wrote in The Week that "Clinton set up a personal email server, in defiance or at least circumvention of rules, with the probable motive of evading federal records and transparency requirements, and did it with subpar security. "[128]

House Select Committee on Benghazi

On March 27, 2015, Republican Congressman Trey Gowdy, Chairman of the Select Committee on Benghazi , asserted that some time after October 2014, Clinton "unilaterally decided to wipe her server clean" and "summarily decided to delete all emails."[129][130] Clinton's attorney, David E. Kendall, said that day that an examination showed that no copies of any of Clinton's emails remained on the server. Kendall said the server was reconfigured to only retain emails for 60 days after Clinton lawyers had decided which emails needed to be turned over.[131]

Subpoenas for State Department testimony

On June 22, 2015, the Benghazi panel released emails between Clinton and Sidney Blumenthal, who had been recently deposed by the committee. Committee chairman Gowdy issued a press release criticizing Clinton for not providing the emails to the State Department.[132] Clinton had said she provided all work-related emails to the State Department, and that only emails of a personal nature on her private server were destroyed. The State Department confirmed that 10 emails and parts of five others from Sidney Blumenthal regarding Benghazi, which the Committee had made public on June 22, could not be located in the Department's records, but that the 46 other, previously unreleased Libya-related Blumenthal emails published by the Committee, were in the Department's records. In response, Clinton campaign spokesman Nick Merrill, when asked about the discrepancy said: "She has turned over 55,000 pages of materials to the State Department, including all emails in her possession from Mr. Blumenthal."[133]

Republican Committee members were encouraged about their probe, having found emails that Clinton did not produce.[133][134] Clinton campaign staff accused Gowdy and Republicans of "clinging to their invented scandal."[134]

Allegations of politicization

In response to comments made on September 29, 2015 by House Republican Majority Leader Kevin McCarthy about damaging Clinton's poll numbers,[135] Minority Leader Nancy Pelosi threatened to end the Democrats' participation in the committee.[136][137][138] Representative Louise Slaughter introduced an amendment to disband the committee, which was defeated in a party-line vote.[139] On October 7, the editorial board of The New York Times called for the end of the committee.[140] Representative Alan Grayson took step towards filing an ethics complaint, calling the committee "the new McCarthyism" and alleging that it violates both House rules and federal law by using official funds for political purposes.[141] Richard L. Hanna, a Republican representative from New York,[142] and conservative pundit Bill O'Reilly acknowledged the partisan nature of the committee.[143]

Clinton's testimony at public hearing

House Select Committee on Benghazi – Hillary Clinton public hearing

On October 22, 2015, Clinton testified before the Committee and answered members' questions for eleven hours before the Committee in a public hearing.[144][144][145][146]

The New York Times reported that "the long day of often-testy exchanges between committee members and their prominent witness revealed little new information about an episode that has been the subject of seven previous investigations...Perhaps stung by recent admissions that the pursuit of Mrs. Clinton's emails was politically motivated, Republican lawmakers on the panel for the most part avoided any mention of her use of a private email server."[144] The email issue did arise shortly before lunch, in a "a shouting match" between Republican committee chair Trey Gowdy and two Democrats, Adam Schiff and Elijah Cummings.[144] Late in the hearing, Representative Jim Jordan, Republican of Ohio, accused Clinton of changing her accounts of the email service, leading to a "heated exchange" in which Clinton "repeated that she had made a mistake in using a private email account, but maintained that she had never sent or received anything marked classified and had sought to be transparent by publicly releasing her emails."[144]

Freedom of Information lawsuits

Judicial Watch v. U.S. Department of State

Judicial Watch, a nonprofit advocacy organization, filed a complaint against the Department of State in the U.S. District Court for the District of Columbia on September 10, 2013, seeking records under the federal Freedom of Information Act relating to Clinton aide Huma Abedin (a former deputy chief of staff and former senior advisor at the State Department).[147][148] Judicial Watch was particularly interested in Abedin's role as a "special government employee" (SGE), a consulting position which allowed her to represent outside clients while also serving at the State Department.[147] After corresponding with the State Department, Judicial Watch agreed to dismiss its lawsuit on March 14, 2014.[147] On March 12, 2015, in response to the uncovering of Clinton's private email account, it filed a motion to reopen the suit, alleging that the State Department had misrepresented its search and had not properly preserved and maintained records under the act.[147] U.S. District Judge Emmet G. Sullivan granted the motion to reopen the case on June 19, 2015.[149][150]

On July 21, 2015, Judge Sullivan issued supplemental discovery orders, including one that Clinton, Abedin, and former Deputy Secretary of State Cheryl Mills disclose any required information they had not disclosed already, and promise under oath that they had done so, including a description of the extent Abedin and Mills had used Clinton's email server for official government business.[151][152] On August 10, 2015, Clinton filed her declaration, stating "I have directed that all my emails on clintonemail.com in my custody that were or potentially were federal records be provided to the Department of State", and that as a result of this directive, 55,000 pages of emails were produced to the Department on December 5, 2014.[153][154][155] Clinton also said in her statement that Abedin did have an email account through clintonemail.com that "was used at times for government business", but that Mills did not.[153][154][155] The statement was filed as Clinton faced questions over fifteen emails in exchanges with Blumenthal that were not among the emails she gave to the department the previous year.[154] She did not address the matter of those emails in the statement.[154] On September 25, 2015, several additional emails from her private server[156] surfaced that she had not provided to the State Department.[156][157][158] These emails between Clinton and General David Petraeus, discussing personnel matters, were part of an email chain that started on a different email account before her tenure as Secretary of State,[156][157][158] but continued onto her private server[156] in late January 2009 after she had taken office.[156][157][158] The existence of these emails also called into question Clinton's previous statement that she did not use the server before March 18, 2009.[159]

In February 2016, Judge Sullivan issued a discovery order in the case, ruling that depositions of State Department officials and top Clinton aides were to proceed.[160]

Jason Leopold v. U.S. Department of State

In November 2014, Jason Leopold of Vice News made a Freedom of Information Act request for Clinton's State Department records,[161][162] and, on January 25, 2015, filed a lawsuit in the U.S. District Court for the District of Columbia seeking to compel production of resposive documents.[161][162][163] After some dispute between Leopold and the State Department over the request, U.S. District Judge Rudolph Contreras ordered rolling production and release of the emails on a schedule set by the State Department.[164][165][166]

Over the next several months, the State Department completed production of 30,068 emails, which were released in 14 batches, with the final batch released on February 29, 2016.[167] The Wall Street Journal has set up a search engine for anyone who would like to search through emails released by the State Department.[168]

The emails showed that Blumenthal communicated with Clinton while Secretary on a variety of issues including Benghazi.[108][169][170][171]

Associated Press v. U.S. Department of State

On March 11, 2015, the day after Clinton acknowledged her private email account, the Associated Press (AP) filed suit against the State Department regarding multiple FOIA requests over the past five years. The requests were for various emails and other documents from Clinton's time as secretary of state and were still unfulfilled at the time.[172][173][174] The State Department said that a high volume of FOIA requests and a large backlog had caused the delay.[172][175]

On July 20, 2015, U.S. District Judge Richard J. Leon reacted angrily to what he said was "the State Department for four years dragging their feet".[175] Leon said that "even the least ambitious bureaucrat" could process the request faster than the State Department was doing.[176] On August 7, 2015, Leon issued an order setting a stringent schedule for the State Department to provide the AP with the requested documents over the next eight months.[174] The order issued by Leon did not include the 55,000 pages of Clinton emails the State Department scheduled to be released in the Leopold case, or take into account 20 boxes given to the State Department by Philippe Reines, a former Clinton senior adviser.[174]

Other suits and coordination of email cases

In September 2015, the State Department filed a motion in court seeking to consolidate and coordinate the large number of Freedom of Information Act lawsuits relating to Clinton and Clinton-related emails. There were at the time at least three dozen lawsuits are pending, before 17 different judges.[177][178]

In an U.S. District Court for the District of Columbia order issued on October 8, 2015, Chief U.S. District Judge Richard W. Roberts wrote that the cases did not meet the usual criteria for consolidation but: "The judges who have been randomly assigned to these cases have been and continue to be committed to informal coordination so as to avoid unnecessary inefficiencies and confusion, and the parties are also urged to meet and confer to assist in coordination."[178]

In 2015, Judicial Watch and the Cause of Action Institute filed two lawsuits seeking a court order to compel the Department of State and the National Archives and Records Administration to recover emails from Clinton's server. In January 2016, these two suits (which were consolidated because they involved the same issues) were dismissed as moot by U.S. District Judge James Boasberg, because the government was already working to recover and preserve these emails.[179]

In March 2016, the Republican National Committee filed four new complaints in the U.S. District Court for the District of Columbia stemming from Freedom of Information Act requests it had filed the previous year. These new filings brought the total number of civil suits over access to Clinton's records pending in federal court to at least 38.[180]

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  147. 1 2 3 4 Judicial Watch, Citing Misconduct and Misrepresentation by Hillary Clinton and State Department, Judicial Watch Asks Federal Court to Reopen Lawsuit Seeking Information on Top Clinton Aide Huma Abedin (March 12, 2015).
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  149. ↑ Court order reopening case (June 19, 2015).
  150. ↑ Judicial Watch Statement in Response to Federal Court Reopening Lawsuit Seeking Information on Top Clinton Aide Huma Abedin, Judicial Watch (June 19, 2015).
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  154. 1 2 3 4 Michael S. Schmidt (August 10, 2015). "All Emails Were Provided, Hillary Clinton Says in Statement". The New York Times. Retrieved August 11, 2015. I have directed that all my emails on clintonemail.com in my custody that were or potentially were federal records be provided to the Department of State, and on information and belief, this has been done
  155. 1 2 Rosalind S. Helderman, Hillary Clinton swears: I turned over all my required e-mails, Washington Post (August 10, 2015).
  156. 1 2 3 4 5 Labott, Elise; Levitt, Ross (September 25, 2015). "New Hillary Clinton email chain discovered". CNN. Retrieved September 28, 2015.
  157. 1 2 3 Klapper, Bradley (September 25, 2015). "Officials: More work emails from Clinton's private account". Associated Press. Retrieved September 28, 2015.
  158. 1 2 3 Woolf, Nicky (September 25, 2015). "Officials uncover two chains of emails Hillary Clinton didn't turn over". The Guardian. Retrieved September 28, 2015.
  159. ↑ Schmidt, Michael (September 25, 2015). "String of Emails Raises Questions About When Hillary Clinton Began Using Personal Account". New York Times. Retrieved September 28, 2015.
  160. ↑ Spenser S. Hsu, U.S. judge orders discovery to go forward over Clinton’s private email system, Washington Post (February 23, 2016).
  161. 1 2 Margaret Brennan & Paula Reid, State Dept. to comply with court order on Hillary Clinton's emails, CBS News (May 19, 2015).
  162. 1 2 Josh Gerstein, Feds fight Hillary Clinton-focused email lawsuit, Politico (March 28, 2015).
  163. ↑ Joint Status Report Regarding Schedule (filed March 27, 2015) ("Plaintiff Jason Leopold initiated this Freedom of Information Act ('FOIA') lawsuit against Defendant U.S. Department of State on January 25, 2015. (ECF No. 1). The Department of State answered the complaint on March 2, 2015. (ECF No. 7).").
  164. ↑ Margaret Brennan & Paula Reid, State Dept. to comply with court order on Hillary Clinton's emails, CBS News (May 19, 2015).
  165. ↑ Andrew Zajac & Billy House, Judge orders rolling release of Clinton's State Department e-mail, Bloomberg News (May 20, 2015).
  166. ↑ Jason Leopold, Judge Orders State Department to Release Clinton Emails on Rolling Basis, Vice News (May 19, 2015).
  167. ↑ Steven Lee Myers & Julie Hirschfeld Davis, Last Batch of Hillary Clinton’s Emails Is Released, New York times (February 29, 2016).
  168. ↑ "Search Hillary Clinton’s Emails", Wall Street Journal, accessed April 17, 2016.
  169. ↑ Baker, Peter & Steve Ederjune, New Trove of Hillary Clinton's Emails Highlights Workaday Tasks at the State Department, New York Times (June 30, 2015).
  170. ↑ Emily Schultheis & Lauren Fox, State Department Releases More Hillary Clinton Emails, National Journal (July 31, 2015).
  171. ↑ Anita Kumar, Greg Gordon & Marisa Taylor, Investigators now examining 305 Clinton emails for classified information, McClatchy Washington Bureau (August 17, 2015).
  172. 1 2 Associated Press, Associated Press sues State Department for Hillary Clinton emails (March 11, 2015).
  173. ↑ Complaint, Associated Press v. U.S. Department of State (filed March 11, 2015).
  174. 1 2 3 Eric Tucker, Clinton records: Judge sets schedule for release to AP, Associated Press (August 7, 2015).
  175. 1 2 Josh Gerstein, Judge slams State Department over Hillary Clinton-related records, Politico (July 20, 2015).
  176. ↑ David Francis, Judge: The 'Least Ambitious' Bureaucrat Could Process Clinton's Personal Emails Faster, Foreign Policy (July 30, 2015).
  177. ↑ Josh Gerstein, Feds move to consolidate lawsuits over Hillary Clinton emails, Politico (September 1, 2015).
  178. 1 2 Byron Tau, Court Declines to Consolidate Clinton Emails Lawsuits, Wall Street Journal (October 8, 2015).
  179. ↑ Judge dismisses pair of lawsuits arising from Clinton emails, Associated Press (January 11, 2016).
  180. ↑ Michael Biesecker, GOP Files More Lawsuits Seeking Hillary Clinton Records, Associated Press (March 15, 2016).

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