Hillary Clinton email controversy

During her her tenure as United States Secretary of State, Hillary Clinton drew controversy by using her family’s private email server for official communications rather than using official State Department email accounts maintained on secure federal servers. An FBI examination of Clinton’s server found over 100 emails containing classified information, including 65 emails deemed “Secret” and 22 deemed “Top Secret”, none with classification markings. An additional 2,093 emails not marked classified were retroactively classified by the State Department.

Some experts, officials, and members of Congress contended that Clinton’s use of a private messaging system and a private server violated State Department protocols and procedures, as well as federal laws and regulations governing recordkeeping. Clinton responded that her use complied with federal laws and State Department regulations, and that former secretaries of state had also maintained personal email accounts. News reports indicated that the emails discussed “innocuous” matters already available in the public domain. For example, the CIA drone program has been widely discussed in the public domain since the early 2000s; however, the very existence of the program is technically classified, so even sharing a newspaper article that mentions it would constitute a security breach as far as the CIA is concerned.

The controversy was a major point of discussion during the 2016 presidential election, in which Clinton was the Democratic nominee. In May, the State Department’s Office of the Inspector General released a report about the State Department’s email practices, including Clinton’s. In July, FBI director James Comey announced that the FBI investigation had concluded that Clinton had been “extremely careless” but recommended that no charges be filed. Clinton’s opponent, presidential candidate Donald Trump, used the nickname “Crooked Hillary” to criticize Clinton primarily for the email controversy. Trump supporters adopted the chant “lock her up” to imply Clinton had committed a crime.

On October 28, 2016, days before the election, Comey notified Congress that the FBI had started looking into newly discovered emails. On November 6, Comey notified Congress that the FBI had not changed its original conclusion. Comey’s timing was contentious, with critics saying that he had violated Department of Justice guidelines and precedent and prejudiced the public against Clinton. The controversy received more media coverage than any other topic during the presidential campaign. Clinton and other observers argue that the reopening of the investigation contributed to her loss in the election. In April 2018, Comey said his announcement had been influenced by the fact that he thought it extremely likely that Clinton would become the next President. On June 14, 2018, the Department of Justice’s Office of the Inspector General released its report on the FBI’s and DOJ’s handling of Clinton’s investigation.

 

Server security and hacking attempts

Encryption and security

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 nor expertise in computer security. 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. 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. A Clinton spokesman said her campaign was “pleased” Pagliano was now cooperating with prosecutors. As of May 2016, the State Department remained unable to locate most of Pagliano’s work-related emails from the period when he was employed by that department under Secretary Clinton.

Security experts such as Chris Soghoian believe that emails to and from Clinton may have been at risk of hacking and foreign surveillance. Marc Maiffret, a cybersecurity expert, said that the server had “amateur hour” vulnerabilities. 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 encryption.

Former Director of the Defense Intelligence Agency Michael T. Flynn, former United States Secretary of Defense Robert Gates, and former deputy director of the Central Intelligence Agency Michael Morell 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.”

Hacking attempts

Clinton’s server was configured to allow users to connect openly from the Internet and control it remotely using Microsoft’s Remote Desktop Services. It is known that hackers were aware of Clinton’s non-public email address as early as 2011. Secretary Clinton and her staff were aware of hacking attempts in 2011, and were reportedly worried about them.

In 2012, according to server records, a hacker in Serbia 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. 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.

According to Pagliano, security logs of Clinton’s email server showed no evidence of successful hacking. 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.”

In 2013, Romanian hacker Marcel Lehel Lazăr (aka “Guccifer”) distributed private memos from Sidney Blumenthal to Clinton on events in Libya. In 2016, Lazăr was extradited from Romania to the U.S. to face unrelated federal charges related to his hacking into the accounts of a number of high-profile U.S. figures, pleading guilty to these charges. While detained pending trial, Lazăr claimed to the media that he had successfully hacked Clinton’s server, but provided no proof of this claim. Officials associated with the investigation told the media that they found no evidence supporting Lazăr’s assertion, and Clinton press secretary Brian Fallon said “There is absolutely no basis to believe the claims made by this criminal from his prison cell.” FBI Director James Comey later stated in a congressional hearing that Guccifer admitted his claim was a lie.

According to security researchers at Secureworks the email leak was caused by Threat Group-4127 (TG-4127), a unit that targets governments, military, and international non-governmental organizations. The researchers report moderate confidence that the unit gathers intelligence on behalf of the Russian government.

Classified information in emails

In various interviews, Clinton has said that “I did not send classified material, and I did not receive any material that was marked or designated classified.” However, in June and July 2016, a number of news outlets reported that Clinton’s emails did include messages with some paragraphs marked with a “(c)” for “Confidential.” The FBI investigation found that 110 messages contained information that was classified at the time it was sent. Sixty-five of those emails were found to contain information classified as “Secret;” more than 20 contained “Top-Secret” information. Three emails, out of 30,000, were found to be marked as classified, although they lacked classified headers and were only marked with a small “c” in parentheses, described as “portion markings” by Comey. He added it was possible Clinton was not “technically sophisticated” enough to understand what the three classified markings meant which is consistent with Clinton’s claim that she wasn’t aware of the meaning of such markings.

Clinton personally wrote 104 of the 2,093 emails that were retroactively found to contain information classified as “confidential.” Of the remaining emails that were classified after they were sent, Clinton aide Jake Sullivan wrote the most, at 215.

According to the State Department, there were 2,093 email chains on the server that were retroactively marked as classified by the State Department as “Confidential,” 65 as “Secret,” and 22 as “Top Secret.” TG-4127 accessed Hillary for America Campaign Gmail accounts through spoofed login pages. Victims thought they were standard pages and hackers were able to access their email account.

 

FBI investigation

July 2015 – Security referral

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. 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 New York Times ran a front-page story on July 24, 2015 with the headline “Criminal Inquiry Sought In Clinton’s Use of Email,” with the lead sentence stating, “Two inspectors general have asked the Justice Department to open a criminal investigation into whether Hillary Rodham Clinton mishandled sensitive government information on a private email account she used as secretary of state, senior government officials said Thursday.” Shortly after the publication of the story, the Inspectors General of the Intelligence Community and the Department of State issued a statement clarifying, “An important distinction is that the IC IG did not make a criminal referral – it was a security referral made for counterintelligence purposes.” The Times later made two corrections, first that Clinton was not a specific target of the referral, then later that the referral was not “criminal” in nature.

Clinton’s IT contractors turned over her personal email server to the FBI on August 12, 2015, as well as thumb drives containing copies of her emails.

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. Kendall said the thumb drives had been stored in a safe provided to him in July by the State Department.

August 2015 – Investigation continues; email recovery

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.

Platte River Networks, the Denver-based firm that managed the Clinton server since 2013, said it had no knowledge of the server being wiped. “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.” When asked by the Washington Post, the Clinton campaign declined to comment.

In September 2015, FBI investigators were engaged in sorting messages recovered from the server. 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.

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

May–July 2016 – Public statements

In May 2016, FBI Director James Comey said he was “not familiar with the term ‘security inquiry'” as the Clinton campaign was characterizing the probe, adding that the word investigation is “in our name” and “We’re conducting an investigation … That’s what we do. That’s probably all I can say about it.” Comey noted in his 2018 memoir that he did not publicly contradict Clinton’s characterization of the investigation as a “security inquiry” while it was underway despite being directly prompted by a reporter to do so in May 2016. In April 2017 it became known that the FBI had, in fact, opened a criminal investigation on July 10, 2015, telling The New York Times they had received a “criminal referral,” although the following day they issued a public statement: “The department has received a referral related to the potential compromise of classified information. It is not a criminal referral.”

In late June 2016, it was reported that Bill Clinton met privately with Attorney General Loretta Lynch on her private plane on the tarmac at Phoenix Sky Harbor International Airport. Officials indicated that the 30 minute meeting took place when Clinton became aware that Lynch’s plane was on the same tarmac at the airport. When the meeting became public, Lynch stated that it was “primarily social” and “there was no discussion of any matter pending for the department or any matter pending for any other body.” Lynch was criticized for her involvement in the meeting and was called on by some critics to recuse herself from involvement in the FBI’s investigation of the email case. In response, she stated “The F.B.I. is investigating whether Mrs. Clinton, her aides or anyone else broke the law by setting up a private email server for her to use as secretary of state,” but “the case will be resolved by the same team that has been working on it from the beginning” and “I will be accepting their recommendations.”

On July 1, 2016, the New York Times reported in the name of a “Justice Department official” that Attorney General Loretta Lynch will accept “whatever recommendation career prosecutors and the F.B.I. director make about whether to bring charges related to Hillary Clinton’s personal email server.”

Clinton maintained she did not send or receive any confidential emails from her personal server. In a Democratic debate with Bernie Sanders on February 4, 2016, Clinton said, “I never sent or received any classified material.” In a Meet the Press interview on July 2, 2016, she stated: “Let me repeat what I have repeated for many months now, I never received nor sent any material that was marked classified.”

July 2016 – Investigation concludes

On July 5, 2016, FBI Director Comey announced in a statement he read to press and television reporters at FBI headquarters in Washington, DC, that the FBI had completed its investigation and was referring it to the State Department with the recommendation “that no charges are appropriate in this case.” He added, “Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case.”

With regard to mishandling of classified information, Comey said, “there is evidence that they [Clinton and her team] were extremely careless in their handling of very sensitive, highly classified information.” The investigation found 110 emails that should have been regarded as classified at the time they were sent; another 2,000 emails were retroactively classified which means they were not classified at the time they were sent. Comey said that “any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding … should have known that an unclassified system was no place for that conversation.”

The FBI learned that Clinton used her personal email extensively while outside the United States, both sending and receiving work-related emails in the territory of sophisticated adversaries. The FBI did not find “direct evidence that Secretary Clinton’s personal e-mail domain … was successfully hacked;” they assessed it “possible that hostile actors gained access” to it. Investigators found that State Department employees often used private emails to conduct business. Comey noted, “We also developed evidence that the security culture of the State Department in general, and with respect to use of unclassified e-mail systems in particular, was generally lacking in the kind of care for classified information found elsewhere in the government.”

On July 6, 2016, Lynch confirmed that the investigation into Hillary Clinton’s use of private email servers while secretary of state would be closed without criminal charges.

October 2016 – Additional investigation

In early October 2016, FBI criminal investigators working on a case involving former Congressman Anthony Weiner allegedly sending sexually explicit texts to a fifteen-year-old girl discovered emails from Weiner’s estranged wife, Huma Abedin, vice chair of Hillary Clinton’s 2016 presidential campaign, that they considered potentially relevant to the Clinton server investigation. FBI officials reportedly decided to disclose the development despite its potential effect on the pending presidential election to preempt the possibility that it would be leaked in another way.

On October 28, 2016, Comey informed Congress that “in connection with an unrelated case, the FBI has learned of the existence of emails that appear pertinent to the investigation.” He said the FBI will take “appropriate investigative steps designed to allow investigators to review these emails to determine whether they contain classified information, as well as to assess their importance to our investigation.” He added that the FBI “cannot yet assess whether or not this material may be significant.” The FBI obtained a new search warrant to allow them to review Abedin’s emails.

Comey informed Congress of this additional investigation despite having been advised by Justice Department officials that such an announcement would violate department policies and procedures, including a policy not to comment on investigations close to an election. Comey later explained, in a letter to FBI employees, “We don’t ordinarily tell Congress about ongoing investigations, but here I feel an obligation to do so given that I testified repeatedly in recent months that our investigation was completed.” Law enforcement sources added that he feared he would be accused of concealing relevant information if he did not disclose it.

News of this renewed investigation being revealed shortly before the U.S. presidential election led to the announcement being described as an “October surprise,” and prompted statements from both the Democratic and Republican campaigns. Donald Trump repeated his characterization that Hillary Clinton’s email usage as secretary of state was “worse than Watergate.” Clinton called for the FBI to immediately release all information about the newly discovered emails and said she was confident the FBI would not change its earlier conclusion that there is no basis for criminal prosecution. Senator Dianne Feinstein (D-CA) said she was “shocked” by the letter, saying it “played right into the political campaign of Donald Trump.”

On November 6, in another letter to Congress, Comey stated that, after working “around the clock” to review all of the newly discovered emails, the FBI had not changed the conclusion it reached in July. An unnamed government official added that the newly discovered emails turned out to be either personal or duplicates of emails previously reviewed, and that Comey’s letter represents a conclusion of the investigation. The following day, stock and currency markets around the world surged in response.

On November 12, during a conference call to top donors, Hillary Clinton attributed her presidential election loss to Comey’s announcements, saying they stopped her momentum. In January 2017, the US Justice Department started an investigation of Comey’s announcements.

Senate probes Loretta Lynch interference

According to Comey’s June 8, 2017, testimony to the Senate Intelligence Committee, then-Attorney General Loretta Lynch had asked him to downplay the investigation into Clinton’s emails by calling it a “matter” rather than an investigation. He said the request “confused and concerned” him. He added that Lynch’s tarmac meeting with Bill Clinton also influenced his decision to publicly announce the results of the FBI probe.

On June 23, 2017, several members of the Senate Judiciary Committee opened a bipartisan inquiry into whether former Attorney General Lynch interfered in the FBI’s investigation into Hillary Clinton’s use of a private email server.

Internal State Department investigation

On July 7, 2016, the internal State Department resumed its review of whether classified information had been mishandled. The review had been suspended until the completion of the Justice Department investigation.

Department of Justice Inspector General’s report

The Inspector General of the Department of Justice (IG) launched an investigation into how the DOJ and FBI had handled the investigation into Clinton’s email. On June 14, 2018, the IG issued a report that was highly critical of Comey’s actions. Regarding his July press conference, in which he criticized Clinton even while announcing the investigation was over, the IG said it was “extraordinary and insubordinate for Comey to conceal his intentions (about the press conference) from his superiors,” and that “we found none of his reasons to be a persuasive basis for deviating from well-established Department policies.” Comey’s October decision to send a letter notifying Congress that the investigation had been re-opened one week before the election was described as “ad-hoc” and “a serious error in judgment.” However, the IG concluded that prosecutorial decisions in the Clinton case were consistent with precedent and were not affected by bias.

Opinions of 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.” The newspaper reported that “most specialists believe the occasional appearance of classified information in the Clinton account was probably of marginal consequence”. 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.

Reuters’ August 2015 review of a set of released emails found “at least 30 email threads from 2009, representing scores of individual emails,” which 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.” Although unmarked, Reuters’ examination appeared to suggest that these emails “were classified from the start.” J. William Leonard, a former director of the NARA Information Security Oversight Office, said that such information is “born classified” and that “[I]f 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.” 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.” The State Department “disputed Reuters’ analysis” but declined to elaborate.[104]

The Associated Press reported, “Some officials said they believed the designations were a stretch—a knee-jerk move in a bureaucracy rife with over-classification.” 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. 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.” 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. 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.”

In an analysis of the Clinton email controversy published by the Brookings Institution, Richard Lempert wrote that “security professionals have a reputation for erring in the direction of overclassification.” 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. 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.”

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