Even as Hillary Clinton sails toward the securing the Democratic nomination with few obstacles in sight, there are still signs out there that she could face some choppy seas, specifically in the form of continued questions about her use of a private email server while Secretary of State:
WASHINGTON — As Hillary Clinton moves toward the Democratic presidential nomination, she faces legal hurdles from her use of a private computer server as secretary of state that could jar her campaign’s momentum in the months ahead.
Foremost among a half-dozen inquiries and legal proceedings into whether classified information was sent through Mrs. Clinton’s server is an investigation by the F.B.I., whose agents, according to one law enforcement official, could seek to question Mrs. Clinton’s closest aides and possibly the candidate herself within weeks.
It is commonplace for the F.B.I. to try to interview key figures before closing an investigation, and doing so is not an indication the bureau thinks a person broke the law. Although defense lawyers often discourage their clients from giving such interviews, Democrats fear the refusal of Mrs. Clinton or her top aides to cooperate would be ready ammunition for Donald J. Trump, the Republican front-runner.
A federal law enforcement official said that barring any unforeseen changes, the F.B.I. investigation could conclude by early May. Then the Justice Department will decide whether to file criminal charges and, if so, against whom.
“As we have said since last summer, Secretary Clinton has been cooperating with the Justice Department’s security inquiry, including offering in August to meet with them to assist their efforts if needed,” said Brian Fallon, a campaign spokesman.
Federal law makes it a crime to mishandle classified information outside secure government channels when someone does so “knowingly” or — more seriously — permits it through “gross negligence.” Mrs. Clinton has correctly pointed out that none of the emails on her server were marked as classified at the time.
The bureau’s investigators have already interviewed Bryan Pagliano, a former aide who installed the server Mrs. Clinton had in her home in New York and used exclusively for her private and official email while secretary of state from 2009 to 2013.
Mr. Pagliano, who last year invoked his Fifth Amendment right not to testify before Congress, has cooperated with the investigation, according to the law enforcement official, who spoke on the condition of anonymity because he was not authorized to discuss the matter publicly. Mr. Pagliano’s lawyer declined to comment.
Mr. Fallon said the campaign was “pleased” that Mr. Pagliano was cooperating, noting that it had previously urged him to cooperate with the Capitol Hill inquiry.
In addition to the F.B.I. investigation, there are continuing inquiries into Mrs. Clinton’s emails by the inspector general of the State Department, the inspector general of the intelligence agencies, the State Department’s Bureau of Diplomatic Security and the House Select Committee on Benghazi.
Aides to Mrs. Clinton and officials from the State Department also face the prospect of questioning under oath in a separate legal proceeding brought by Judicial Watch, the conservative government watchdog group, under the Freedom of Information Act. In that case, the group has sought emails related to the special employment status given to Mrs. Clinton’s close aide Huma Abedin so she could receive additional salaries beyond the one she received from State.
Last week Judge Emmet G. Sullivan of United States District Court in Washington allowed the questioning after a hearing in which he criticized the State Department’s “constant drip” of revelations about emails from the server and said there were many unanswered questions about who authorized its use.
“It just boggles the mind that the State Department allowed this circumstance to arise in the first place,” said Judge Sullivan, who was appointed to the District Court in 1994 by President Bill Clinton and to lower courts by Presidents Ronald Reagan and George Bush. “It’s just very, very, very troubling.”
He ordered lawyers for Judicial Watch to submit a “narrowly tailored” plan for questioning that could begin in April as primaries continue to be held in states like New York, Connecticut, Pennsylvania and Maryland. The organization, according to its court filings so far, is expected to seek depositions from Ms. Abedin and Mr. Pagliano; Mrs. Clinton’s former chief of staff, Cheryl D. Mills; and department officials like Patrick F. Kennedy, the undersecretary of state for management.
Judge Sullivan’s ruling left open the possibility of additional testimony, including testimony from Mrs. Clinton. “I think there are some legitimate issues that arise because of this very atypical system that was created,” he said.
The flurry of questions around Mrs. Clinton’s server stem from the Benghazi committee’s inquiry into the attack on the American government outposts in Libya on Sept. 11, 2012, that killed four Americans, including the ambassador to Libya, J. Christopher Stevens.
It was through the committee’s request for records that the use of the server became known. Mrs. Clinton testified before the committee last October in what was widely viewed as a highly partisan confrontation.
This report from the New York Times comes on the same day that The Washington Post reporter that Bryan Pagliano, the former State Department staffer who helped setup the email server at Clinton’s New York home, has been granted immunity by the Justice Department:
The Justice Department has granted immunity to a former State Department staffer, who worked on Hillary Clinton’s private email server, as part of a criminal investigation into the possible mishandling of classified information, according to a senior law enforcement official.
The official said the FBI had secured the cooperation of Bryan Pagliano, who worked on Clinton’s 2008 presidential campaign before setting up the server in her New York home in 2009.
As the FBI looks to wrap up its investigation in the coming months, agents are likely to want to interview Clinton and her senior aides about the decision to use a private server, how it was set up, and whether any of the participants knew they were sending classified information in emails, current and former officials said.
The inquiry comes against a political backdrop in which Clinton is the favorite to secure the Democratic nomination for the presidency.
So far, there is no indication that prosecutors have convened a grand jury in the email investigation to subpoena testimony or documents, which would require the participation of a U.S. attorney’s office.
Spokesmen at the FBI and Justice Department would not discuss the investigation. Pagliano’s attorney, Mark J. MacDougall, also declined to comment.
In a statement, Brian Fallon, a spokesman for the Clinton campaign, said: “As we have said since last summer, Secretary Clinton has been cooperating with the Department of Justice’s security inquiry, including offering in August to meet with them to assist their efforts if needed.”
He also said the campaign is “pleased” that Pagliano, who invoked his Fifth Amendment rights before a congressional panel in September, is now cooperating with prosecutors. The campaign had encouraged Pagliano to testify before Congress.
As part of the inquiry, law enforcement officials will look at the potential damage had the classified information in the emails been exposed. The Clinton campaign has described the probe as a security review. But current and former officials in the FBI and at the Justice Department have said investigators are trying to determine whether a crime was committed.
The fact that someone so close to Clinton, and so close to the setup of the server itself, is receiving immunity is likely to raise eyebrows in many corners, After all, if this is just a routine security review that is close to being wrapped up, then its unclear why the Justice Department would be granting immunity to anyone to begin with. Pagliano likely has technical information regarding how the server was set up, of course, but this is information that the F.B.I.’s own experts likely would have been easily able to figure out by a forensic examination of the machine itself. Typically, the only reason immunity is granted in cases such as this is because the immunized witness has information that investigators and/or prosecutors need for the investigation to proceed further. In this case, that information could consist of what Pagliano knew about what precautions were being taken to keep classified information off the Clinton server and/or any conversations that Pagliano may have had with Clinton or, more likely, any of her top aides regard setting the server up or maintaining it, which he apparently also did on a regular basis. If the Justice Department didn’t believe that Pagliano possessed such information then there would be no need to grant anyone immunity. Finally, while the Justice Department has never said that Clinton or anyone else is the target of an investigation at this point that doesn’t necessarily mean that their investigation hasn’t led them to be interested in someone as a potential target. The fact that they’re giving a low-level aide such as Pagliano immunity suggests that such a person, if they exist, is higher up the chain of command than Pagliano himself.
To listen to Republicans, of course, this is just the first step toward the indictment of Hillary Clinton herself for improperly handling classified information, an event that would be unprecedented in the middle of a Presidential election and which would obviously have real political consequences for the race as a whole. Indeed, if Clinton, or even just one of her closest aides, were indicted in connection with this matter it’s hard to see how it wouldn’t have a seriously negative impact on her campaign that would set off another round of stories about top Democrats seeking to find a way to replace her with a candidate such a Joe Biden rather than face the prospect of heading into the General Election with a seemingly unelectable candidate like Bernie Sanders. Before we get to that point, though, it’s important to keep a few things in mind. First of all, notwithstanding the grant of immunity to Pagliano, there has been no confirmation that Hillary Clinton or anyone else is the target of an investigation. Second, there’s no evidence that a Grand Jury has been convened, or that evidence regarding this matter has been submitted to a sitting Grand Jury, although to be fair that’s not necessarily something that would be made public. Finally, a discussed below, there’s not really much evidence from the information that’s been made publicly available that Clinton herself did anything wrong, never mind the kind of evidence that a U.S. Attorney is likely to demand to even consider indicting anyone in a case that would obviously have a serious impact on a Presidential election.
In arguing that Clinton should face indictment for alleged mishandling of classified information, many on the right have cited the case of General David Petraeus, who was indicted and ultimately plead guilty to mishandling classified information when it became known that he had allowed the woman he was having an affair with to have access to classified information for the purpose of writing a biography about him. As the Times article makes clear, though, there are several significant differences between what happened in the Petraeus case and what we know about the ongoing Clinton investigation:
The F.B.I.’s case did begin as a security referral from the inspectors general of the State Department and the nation’s intelligence agencies, who were concerned that classified information might have been stored outside a secure government network. But multiple law enforcement officials said the matter quickly became an investigation into whether anyone had committed a crime in handling classified information.
The bureau’s inquiry is being overseen by career national security prosecutors at the Justice Department, including a member of the prosecution team that won a guilty plea last year from David H. Petraeus, the former general and director of the Central Intelligence Agency. The case against Mr. Petraeus looms large over this investigation, according to officials and lawyers involved, and its outcome will inevitably be a measure of the one this time.
Mr. Petraeus not only wrote down highly classified information in eight black notebooks he kept in his home — including such details as the names of covert officers and programs — but he also shared the notebooks with his lover and biographer, Paula Broadwell. Those secrets were far more sensitive than the information on Ms. Clinton’s server, a federal law enforcement official said, and Mr. Petraeus told his biographer so in a recording she made of one of their interviews.
“Umm, well, they’re really — I mean they are highly classified, some of them,” he told her, according to a transcript that was included in the plea agreement filed in United States District Court in Charlotte, N.C., in March 2015. Mr. Petraeus went on to refer to the code names that are used for the nation’s most guarded information, programs and operations.
Mr. Petraeus also lied when initially questioned by the bureau’s agents. After a lengthy back-and-forth, the Justice Department — over the objection of the F.B.I. — negotiated the agreement for Mr. Petraeus to plead guilty to a misdemeanor charge of mishandling classified information.
While Mr. Petraeus was recorded saying he knew the information was classified, no similar evidence has surfaced regarding Mrs. Clinton or her aides.
On the contrary, in some of the emails that have been made public, Mrs. Clinton and her senior aides make reference to the restrictions on discussing classified information on the “low side,” as the department’s unclassified system is known, versus the “high side,” the department’s classified computer system.
On Monday night, the State Department released the last of 30,068 emails from Mrs. Clinton’s private server that Mrs. Clinton and her lawyers have said were work-related. Of those, 22 have now been classified by the State Department as “top secret,” 65 as “secret” and 2,028 at the lower level of “confidential.”
Since none were marked classified at the time, the question is whether classified information — details of secret programs or sources — nevertheless slipped into the emails. Many of the “secret” and “top secret” emails were written or forwarded by Mrs. Clinton’s senior aides.
In their investigation, F.B.I. agents have sought to compare electronic timestamps on classified sources to figure out whether the aides reviewed the sources and then retyped the information into emails that were sent or forwarded to Mrs. Clinton’s private server. That has proved challenging, and one official said investigators have not concluded that such retyping occurred.
The fact that classified information was not marked as such when it went out on Clinton’s private server is not necessarily the end of the inquiry since the relevant laws also provide for potential administrative or criminal sanctions for someone who mishandles information they knew or should have known was classified even if it wasn’t properly marked. This would include, for example, information about military deployment, discussions involving information that obviously could have only been obtained via classified sources such as agents on the ground or signals intelligence, or technical information of a classified nature. Persons with security clearances are, generally speaking, supposed to be sufficiently informed to recognize such information and responsible for taking appropriate action when it comes to handling that information. Proving knowing mishandling of information in this situation is much harder than it is in the case of material that is marked classified and a U.S. Attorney would obviously want to make sure they had an airtight case before even considering moving forward in such a case.
This email issue has obviously not been an issue for Clinton in her pursuit of the Democratic nomination, and it’s unlikely to become one. For the most part, Democratic voters seem to agree with Bernie Sanders’ comment during the first Democratic debate that he was sick of hearing about Clinton’s emails, although it’s worth noting that more recently Sander has called the email issue a “very serious” one and that the investigation should be allowed to continue. Outside the Democratic Party, though, there are signs that the American people as a whole may be looking at the issue as a more serious matter. A poll from November, for example, found that 70% of Americans believed that Clinton acted unethically in the way she handled her emails as Secretary of State. Another poll taken just last month found that 54% of Americans believed that a Special Prosecutor should be appointed to oversee the ongoing investigation. And, of course, Republicans continue to hammer Clinton on this issue.
Regardless of whether or not anything comes of this investigation, the fact that it is still on going is a potential headache that the Clinton campaign may find it will have to deal with at the most inconvenient times possible. Imagine, for example, the prospect of Clinton being interviewed by the F.B.I. just as the conventions are starting, or a Grand Jury being convened just as the General Election campaign is starting. At the very least, it’s likely to be a distraction, and perhaps worse if there are indeed indictments of even low-level State Department employees. Outside of the potential criminal law issues, of course, the entire story raises serious questions about Clinton’s judgment and her motivations in setting the server up. The innocent explanation that she did it because she didn’t want to carry two mobile devices simply defies credulity, and the obvious explanation that she did it so that she would have control over her communications records brings back memories of the investigations of the 90s that Clinton would probably prefer people didn’t bring up. Whether all of that ultimately hurts her in the election remains to be seen, but the fact that she could have avoided all of this by simply using the State Department’s internal email system makes it clear that whatever headaches she experiences will be entirely her own fault.
