The High Stakes of Hillary Clinton’s Email Scandal

Days before Hillary Clinton was sworn in as the 67th Secretary of State on Jan. 21, 2009, her staff took a server Clinton was using as Senator and created an email domain on it. An aide gave Clinton the address HDR22@clintonemail.com and created other accounts for a handful of family members and close aides. Clinton says she used this address exclusively for all her government and personal emails while serving as Secretary, setting the stage for a scandal that has come to dominate her campaign for the presidency.

How did the scandal start?

In August 2014, more than a year after Clinton left office, House Republicans investigating the 2012 terrorist attacks in Benghazi, Libya, raised questions about Clinton’s use of private emails. A Vice reporter, Jason Leopold, requested that her work-related ones be released under the Freedom of Information Act (FOIA) and later sued the State Department for moving too slowly. The department asked Clinton and other former Secretaries of State to hand over private emails that contained government business from their tenure.

Clinton tasked her personal lawyer, David Kendall, and his team with going through 62,320 emails on the personal server and separating work emails from personal ones. On Dec. 5, 2014, Clinton turned over 30,490 work emails to State; she erased the rest, saying they were personal. The server itself remained in the New Jersey office of a small Colorado-based firm, Platte River Networks, that the Clintons hired to manage their email after she left office in February 2013.

The State Department and the intelligence community have been reviewing and releasing Clinton’s work emails over the past eight months. So far they have found potentially classified information in 305 of them. The FBI is now investigating whether Clinton’s unorthodox email arrangement exposed government secrets, and it has taken possession of Clinton’s server and thumb drives Kendall used to store copies of the emails.

Was it legal?

There was nothing illegal in Clinton’s setting up the private server and choosing to do all of her government emailing on it. Senior officials, including former Secretary of State Colin Powell, have used private email for government business. But to keep a good record of the public business, the National Archives discourages federal employees from using personal email for work, and no one has ever had an arrangement as elaborate as Clinton’s.

More important, if the setup was O.K. on paper, in practice Clinton and her aides could have violated multiple laws in how they used it. For starters, it is a crime to willfully destroy government records; if any work emails were improperly erased, Clinton could be in trouble. Already, 15 documents independently handed to the Benghazi committee by Clinton adviser Sid Blumenthal are reportedly absent from the emails she gave to State. Clinton has sworn under penalty of perjury that she has handed over all her work emails, and aides say she complied with record-keeping rules by copying aides on their State-run emails.

Then there’s the matter of government secrets. There are numerous laws criminalizing the mishandling of classified information. The broadest makes it a crime to “knowingly” remove classified materials from secure locations and store them in unauthorized ones. Certain types of secrets are especially closely guarded. Two of the emails flagged by State contain information that some intelligence officials believe should have been classified as top secret because it was derived in part from overhead eavesdropping platforms like satellites or drones. Intelligence officers squirm if you so much as ask them about such technological assets, and it is a crime to mishandle the secrets they produce “in any manner prejudicial to the safety or interest of the United States.”

None of the emails was marked classified at the time, say the inspectors general of the State Department and the Intelligence Community, and Clinton aides say there is no evidence that she knowingly mishandled secrets. Even if her email use wasn’t criminal, Clinton or her aides could have broken federal rules that punish “negligently” mishandling secrets with revocation of officials’ security clearances.

Has Clinton been consistent in her comments about the case?

Yes and no. At first she said she set up the server so she would have to use only one device; then it emerged that she carried not just her signature BlackBerry but also an iPhone, an iPad and an iPad Mini. Clinton claims that State released her emails only because she asked them to; in fact, she made a virtue of necessity in the face of Leopold’s FOIA case. She said none of the emails were classified; now she says they weren’t classified when they were sent and received. Her repeated accusations of partisan Republican motives behind the investigations are undercut by the fact that it is the Obama Administration that is probing her server.

But it is also true that Hill Republicans are broadening their investigations into Benghazi and potential conflicts of interest between Clinton’s work as Secretary of State, Bill Clinton’s charitable foundation and a firm run by his former aide Douglas Band. Those who know Clinton say her handling of the email affair reveals her lawyerly instinct for control. One irony is that her effort to shield her work and private life may result in even greater exposure.

What’s the likely fallout?

The U.S. produces more than 77 million classified communications a year and, awash in secrets, regularly loses really important ones to leaks and hackers. As a national-security matter, Clinton’s potential breaches are comparatively inconsequential. But former CIA chiefs John Deutch and David Petraeus, among others, have paid a price for knowingly mishandling secrets: Deutch intentionally took some home on an unsecure computer and had his security clearance revoked in 1999. Petraeus gave his lover Paula Broadwell secrets for use in a biography of him; he pleaded guilty in April to a misdemeanor and paid a fine of $100,000. Absent evidence she knowingly mishandled secrets, for Clinton the penalty is likely to be political.