There have always been two legal questions regarding Hillary Clinton’s use of a personal server for all of her work e-mails during her tenure as Secretary of State from 2009 to 2013. The first is whether she violated any of the laws regarding the handling of classified material. The second is whether she violated the Federal Records Act.
New documents released by the FBI Friday afternoon seem to be in Clinton’s favor on the first question, but raise new questions about the second.
On Friday, the FBI released 58 pages of documents from its investigation into Clinton’s email use. Eleven pages were notes taken by FBI agents during their three-and-a-half hour interview of Clinton on July 2, 2016 at FBI Headquarters as they neared the end of their investigation into whether classified material was improperly handled or stored on her server. The other forty-seven pages were a detailed, but redacted, account of the investigation from start to finish.
The documents contain material that will be put to use by Clinton’s political opponents. During her interview with the FBI agents and Justice Department officials, Clinton said that she didn’t know what the “(C)” designation of classified material on an e-mail meant. She said several dozen times that she couldn’t recall details of her email arrangement or specific emails that were found to have contained classified information. The FBI investigation notes indicate Clinton had multiple mobile devices, rather than the one she initially said she used and suggest those working for her took extra measures to permanently delete emails, which sources familiar with the case previously said she didn’t.
Unsurprisingly, however, there is nothing in the documents to contradict the unanimous conclusion of the FBI Director Jim Comey, his team of investigators and the Justice Department prosecutors who worked with them, that Clinton didn’t break any secrecy laws. While those laws are written very broadly, to bring charges under them prosecutors have generally required proof that the person mishandling the secrets was intentionally trying to harm the interests of the United States.
Even Clinton’s harshest critics have not alleged that. When he announced his team’s decision not to bring charges against Clinton after her interview in July, Comey said, “In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts,” Comey said.
The documents do raise new questions about Clinton’s compliance with the Federal Records Act, which requires federal officials to preserve their work records and to hand them over to the National Archives when they leave government. Days after President Barack Obama’s inauguration in January 2009, Clinton contacted former Secretary of State Colin Powell “to inquire about his use of a BlackBerry while he was Secretary of State,” the FBI interview notes say.
“Powell warned Clinton that if it became ‘public’ that Clinton had a BlackBerry, and she used it to ‘do business,’ her e-mails could become ‘official record[s] and subject to the law.” The FBI interview also says Powell told Clinton, “Be very careful. I got around it all by not saying much and not using systems that captured the data.”
When the FBI asked Clinton about the exchange, she told them that she took Powell to mean work-related communications would be government records and said in any event Powell’s comments “did not factor into her decision to use a personal e-mail account,” according to the FBI records. In a later email exchange, a State official warned a top Clinton aide, Huma Abedin, that if Clinton had an official State Department email account, all the emails on it would be subject to public requests under the Freedom of Information Act. Abedin said such an arrangement wouldn’t make sense for Clinton.
Clinton has repeatedly said that she thought she was preserving her work records by emailing her colleagues on their work emails, which she assumed would be captured by government retention procedures. The State Department’s Inspector General later said this was not an appropriate way to preserve government records and that Clinton should have printed and filed work emails from her private server.
Asked by the FBI about her failure to hand over her work emails when she left office, Clinton said she “received no instructions or direction regarding the preservation or production of records from State during the transition out of her role as Secretary of State.” She said that in December of 2012, she suffered a concussion, and around New Years had a blood clot. She said that her doctor instructed her not to go to work more than a few days a week and that she could not recall all of the briefings she received during that period.
Taken together, the documents paint the picture of a thorough FBI and Justice Department investigation. The newly released documents appear to support their decision with regard to violations of the secrecy laws.
But they raise further questions about Clinton’s compliance with the Federal Records Act. That may be a moot point, though as violations of that law are at their worst criminal misdemeanors, not felonies, and in a case involving Henry Kissinger, the Supreme Court set a high bar for prosecuting them.