Since early 2015, the words “Clinton email scandal” have been a part of the public consciousness, sometimes lurking in veiled accusations, sometimes utilized as a weapon in public political fora. But truly understanding the controversy goes far beyond being able to say “she had a private email server” or making poorly supported claims of intentional misconduct.
The whole thing is highly complicated, and requires some backstory to fully grasp. I’ve tried to piece together as much of this story as possible into a cohesive narrative that shines some light on the situation.
Before reading further, though, it’s important to note that much of this information is derived from leaks to the press, statements made by people who are only tangentially related to the events, and even some outright speculation. Trying to navigate through the miasma of confusion surrounding the subject is rather difficult, and if any new information comes to light, the statements made in this article may need to be updated.
Federal Email Regulations
With that said, we’ll start with some important background information on government email regulations. According to a March 2015 article by Politifact’s Lauren Carroll, during Clinton’s term as Secretary of State between 2009 and 2013, “there was not an explicit, categorical prohibition against federal employees using personal emails.” In plainer language, regulations allowed — at least by implication — federal employees, including cabinet members, to use personal email addresses to conduct official business.
In fact, Carroll also states, “some former secretaries of state occasionally used personal emails for official business.” Just how “occasionally” they were used is difficult to know, but other sources say that Secretaries since Madeleine Albright have used personal email addresses in official capacities.
Colin Powell is said to have primarily used a personal account (the server, however, was a commercial one, which is an important difference from Clinton’s privately maintained, home-based server). Clinton, according to most sources, was the first Secretary of State to rely exclusively on personal email during her term.
The National Archives and Records Administration (NARA), which oversees recordkeeping for the federal government, requires the storage of records on governmental activities so that they can be referred to in the future, such as when a Freedom of Information Act (FOIA) request is made or a Congressional panel decides that it needs to see them.
What’s included in the NARA’s definition of “records”? Here’s what their website says a federal record is:
Records include all books, papers, maps, photographs, machine-readable materials, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business . . . as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the Government or because of the informational value of the data in them.
State-provided email addresses automatically archive their emails in a manner that’s approved by the NARA, ensuring that the owners of those accounts are complying with the regulations. These communications, as well as other records that are kept under NARA regulations, ensure that federal employees’ and departments’ actions are properly documented and available for review.
Interestingly, there’s disagreement over just how clear these regulations are. Clinton’s campaign and aides have at times maintained that the rules are unclear and that they were following the regulations as they (and Secretary Clinton) understood them. Other sources, including the State Department’s Inspector General, say that the Department’s email regulations were clearly defined and that Clinton’s camp had an unambiguous responsibility to discuss her private server with the Department, at least for security purposes.
Mrs. Clinton has also stated that because she regularly emailed with other members of the State Department, many of her emails went into the government system anyway, though few people seem convinced that this was (or should be) a viable justification. Collecting emails from accounts all around the State Department in an effort to establish a record of her conversations, after all, would be rather difficult.
The Problem with a Personal Email Server
Now that you have a good idea of why regulations require that records be kept, and understand that a @state.gov email address would have automatically backed up and stored all email, you can probably already start to see why Clinton’s personal email server (which used the @clintonemail.com domain) is a matter of contention.
The history of Clinton’s email server and its revelation are rather complicated, but I’ll do my best to lay them out here in a coherent manner. The first information security issues came to light as Clinton began her tenure as Secretary of State in 2009, when she insisted on using her personal BlackBerry to keep up with emails. This didn’t sit well with the State Department, which didn’t allow her to take the device into her secured office suites, as it wasn’t deemed sufficiently secure.
That BlackBerry was also connected to the personal email server in Clinton’s home in upstate New York, a fact that wasn’t known by the State Department security officials trying to find a way to let Clinton continue using the mobile device. Because they didn’t know about the personal server, state officials were never involved in securing it against intrusions.
Clinton hired IT professionals on her own to maintain and secure her server, but a number of security experts have expressed doubt over whether the server was sufficiently protected from attacks. During the first two months of her tenure, the server was not encrypted with standard protocols. The Washington Post reported that there were a number of notable vulnerabilities, including the use of remote-access capabilities.
While Clinton’s team maintain that there were no successful attacks on the server, security professionals interviewed by the Post have stated that a system with the protections placed on the Clinton server “could be made reasonably secure but that it would need constant monitoring by people trained to look for irregularities in the server’s logs.”
In addition to security concerns, the use of a personal email server may also run afoul of the NARA recordkeeping mandate, as the emails stored there were not automatically archived, and the integrity of any email record turned over to the NARA, Congress, or other authorities would be suspect.
Congressional hearings on the 2012 Benghazi attacks led the State Department to request in late 2014 that Clinton turn over all of her emails from the time in which she served as Secretary of State; she complied, turning over 55,000 printed pages of over 30,000 emails (the choice to hand over printed copies aroused some suspicion among commentators, especially when a USB drive with those emails on it was transferred later). She also stated that she had deleted over 32,000 emails that were personal in nature, which is allowed by federal law.
Later in 2015, Clinton’s IT contractor, Platte River Systems, turned over the server to the FBI — but it was empty. All of the emails had been deleted. At least some of those deleted emails have been recovered, and rumors indicate that some of them did, in fact, contain work-related information (which would be a rather damning discovery), but little is known at this point, as this part of the investigation is still ongoing.
Currently, the FBI is leading an investigation to determine if classified information was mishandled, to what extent, and who is culpable. Over 2,000 emails recovered contain information that has been retroactively classified as “confidential” or higher, with 22 containing “top secret” information, some of which contained information from “special access programs,” which requires a security clearance even higher than top secret.
None of this information was marked as classified when it was sent, and it’s unclear whether Secretary Clinton would have known that it would be classified. However, government regulations do stipulate that sensitive information should be treated as classified regardless of how it’s labeled. The FBI clearly has a tough case on its hands.
Another ongoing case is being spearheaded by Judicial Watch, a conservative political organization, in a suit against the State Department under the the Freedom of Information Act.
Multiple FOIA requests for information on Clinton’s emails have been returned with no results; because the Secretary’s emails were stored on a private server in her home, they were not subject to FOIA, arousing some suspicion that the use of this server was intended to evade public scrutiny of the email record.
Finally, the Benghazi panel is still continuing its investigation into the events that transpired in 2012, which is an entirely separate issue, though the findings of either investigation may have a bearing on the other.
While Secretary Clinton has been the primary focus of the criticism surrounding this issue, there are a number of others who have played a role in the events and found themselves the targets of inquiry or made statements that paint the entire situation in a rather negative light.
For example, Bryan Pagliano, the IT staffer who maintained Clinton’s email server, is a notable figure in that the State Department, as of May 2016, has found none of his texts or emails from Clinton’s years of service. Some emails from him have been found in others’ accounts, but digital communications from the four years that he served as the Clintons’ IT specialist seem to have disappeared down a black hole.
Further controversy and confusion surround Pagliano and his hiring, as well. He was brought on as a political appointee, which is highly irregular for an IT staffer. Officials at the State Department’s Bureau of Information Resource Management were surprised by this hiring, as political appointees are generally brought on to work in Presidentially appointed officials’ offices.
Because there was no suitable Presidential appointee in the IT department, Pagliano reported to Patrick Kennedy, the State Department’s Undersecretary for Management. Kennedy, however, had little regular contact with Pagliano, and was never told about his role as the Clintons’ email server manager, for which he was paid separately by the Clintons.
Pagliano also used his Fifth Amendment right against self-incrimination in late 2015, prompting the Justice Department to give him immunity from prosecution in exchange for his testimony in the investigation. All of these facts have brought Pagliano and his role in the Clinton camp under suspicion.
Another Clinton staff member, Philippe Reines, has come under fire for “joking” in an email that he wanted to avoid FOIA inquiries. Yet another staffer told Politico that the issue of email security was brought up in the Clinton camp, but that staffer was told that the system had been reviewed and approved by legal staff (which it had not) and not to bring up the issue again.
Other members of the staff are on record expressing concerns that Clinton’s email had been attacked or successfully hacked, and that these concerns were not reported to anyone in the State Department, as required by policy.
As if the story isn’t complicated enough already, some statements made by the Clinton team have seemed to contradict — at least indirectly — previous statements made during the investigation. A New York Times article from October 2015 lists a number of contradictions in subsequent statements.
For example, Secretary Clinton stated that using a personal email account was a matter of convenience, and that she should have set up a second account and carried a second device to separate her personal and work emails. It was later revealed that she already was carrying two devices, contradicting the implication of her first statement.
Early in the investigation, Clinton categorically stated that there was no classified information on her server. She then changed her statement to acknowledge the fact that some information was retroactively classified. It was later discovered that some of the information was indeed classified at the time she received it.
One of Clinton’s public statements from early 2015 said that her team “went through a thorough process to identify all of my work-related emails and delivered them to the State Department. I have absolute confidence that everything that could be in any way connected to work is now in the possession of the State Department.” It was later revealed that some emails between Clinton and her confidant Sidney Blumenthal regarding controversial actions in Libya had not been turned over during the investigation. She later said that she had turned over all emails that “potentially were federal records.”
There are other contradictions as well, though the degree to which any of them — the above included — imply any wrongdoing or malicious intent is highly debatable.
With all of the various plot lines running throughout this narrative, it can be easy to lose the thread of what Clinton and her team are actually accused of doing. The accusations range from the believably unfortunate — accidental mishandling of (at the time) unclassified information — to the outlandish: RedState, an outspoken conservative political blog, has accused Clinton of selling state secrets.
Of course, the range of accusations continues through the middle as well: willfully flouting regulations and — in some cases — federal laws in order to protect emails from Freedom of Information Act requests is, at best, unethical and suspicious, and at worst, highly illegal. Federal charges related to handling of classified information have been discussed, and there have also been unsubstantiated (and highly doubtful) rumors of racketeering charges as well.
Her family history of controversy isn’t helping Mrs. Clinton’s public image in relation to these charges, either. A number of commentators have likened her pattern of responses to the controversial Whitewater scandal, for which the Clintons were investigated in the 1990s. Clinton has also been accused of wrongdoing in multiple other investigations, including one in which a large number of emails were reportedly lost due a computer glitch.
No matter how you feel about Clinton’s politics, there’s no denying that these are weighty charges, and that they should be taken seriously. Despite wide-ranging accusations that the investigations are a smokescreen by Republicans trying to discredit her before the upcoming presidential election, the absolutely labyrinthine story surely deserves a close look from all sides.
An As-Yet-Untangled Web
The sheer number of twists and turns in this convoluted fiasco is fit for a Chuck Palanhiuk novel collection. Deleted servers, Fifth Amendment invocations, contradictory statements, retroactive classifications, entire people missing from the email record, questionable political appointments… the list goes on.
And as this saga continues to unfold, there are sure to be more aberrations. Federal investigations continue, FBI questioning is likely to follow, an indictment could be forthcoming, the State Department will almost certainly continue its own investigations, and FOIA suits will likely go on for years; it looks like we won’t see the end of this discussion for a very long time.
Of course, one of the issues on everybody’s mind is how these questions might affect the 2016 presidential election. Some Republicans are trying to capitalize on questions of legality, ethics, and intentions, while many Democrats contend that the questions are irrelevant and have been politicized to an undue degree.
At the time of this writing, the effects of these investigations on Clinton’s campaign and reputation are far from clear. Suspicion has obviously been cast over her and her staff, but what effect that will have in the long term won’t be known for months, if not years. As of now, the implications of this entire debacle are anyone’s guess. What is certain, however, is that we are far from the end of this story, and that it’s only likely to get more convoluted from here.
What do you think about Hillary Clinton’s email scandal? Does it worry you? Has it changed your feelings on her suitability for office? Or do you think that the entire thing is overblown? We want to hear your thoughts, so leave them in the comments below and we’ll talk about it.
Image credits: Hillary Clinton in Hampton by Marc Nozell via Flickr, Gage Skidmore via Flickr, FactCheck.org, Riley Kaminer via Flickr, US Embassy via Flickr, Washington Post, Judicial Watch, MSNBC via YouTube, National Review, New York Time, Brett Weinstein via Flickr, Marc Nozell via Flickr.