The debate over the revelation of the referral to the Justice Department of Hillary Clinton’s email activities as Secretary of State missed several important points, particularly the preferential treatment she has been given so far.
Any other federal employee found to have discussed high-level, sensitive government business in her personal emails, including possibly classified materials, would not have been treated with such kid gloves.
After this referral hit the news on Friday, a dispute erupted over whether the request by the inspector general of the intelligence community to open an investigation of Clinton’s handling of information classified as “secret” was a “criminal” referral or not. At first, a Department of Justice official said the “investigation was criminal in nature,” according to the Wall Street Journal, but the department “reversed course hours later without explanation.”
As the former head of the National Security Division of the Justice Department, Lisa O. Monaco, who is now an assistant to the president for counterterrorism, explained in testimony before the Senate Select Committee on Intelligence in 2012 (before the public knew about Clinton’s personal server) that the intelligence community must report the unauthorized disclosure of classified materials to DOJ.
Those referrals “come in the form of a letter identifying the classified information” and providing other relevant information such as “the level of classification.”
That is obviously exactly what the inspector general has done in the referral letter sent to DOJ.
Before anyone can definitively assert that there has been no disclosure of classified material, he or she should be reminded that that is the precise issue here: we don’t know—at this point—if there has been any such disclosure.
What we do know is that the inspector general for the intelligence community has alleged that information classified as “secret” at the time it was sent went out on a non-secure, personal email system in contravention of all of the rules and regulations (and common sense) governing the handling of secret and sensitive material.
According to Monaco, agency referrals like this one by the inspector general go to the National Security Division and “typically represent the first step to initiating a criminal investigation.”
After “receipt of a crime report, the Department must determine whether it should initiate a criminal investigation, to be conducted by the [FBI].” Affected agencies do not seek “criminal investigations of every leak; they tend to request investigations of only the most damaging unauthorized disclosures.”
The Office of the Director of National Intelligence instituted a new policy in May 2011, according to Monaco, that requires referrals to be assessed as Tier 1, Tier 2 or Tier 3.
Tier 1 disclosures are those where the preliminary review by the reporting agency—here the intelligence community IG—”reveals that further investigation is not warranted.” Since DOJ has admitted that the referral asked for an investigation to be opened, the IG obviously did not classify this as a Tier 1 problem.
Tier 2 disclosures are those where the reporting agency believes that “an internal, or administrative investigation, rather than a criminal investigation, is appropriate.” Monaco testified that DOJ “does not conduct these administrative inquiries.”
There is no indication in any of the news reports on the inspector general letter that was also sent to Congress that the inspector general asked the State Department to do an internal or administrative investigation of the circumstances surrounding these classified emails instead of DOJ opening an investigation.
Thus, it would appear this was not classified as a Tier 2 problem.
Finally, Tier 3 disclosures “are those in which the agency requests a criminal investigation.” Since the inspector general’s referral went to the National Security Division, it would appear to be possibly a Tier 3 investigation—despite DOJ’s subsequent denial.
Unless they are giving former Secretary of State Clinton some form of special treatment.
The inspector general reviewed copies of emails given to the State Department by Hillary Clinton’s legal team. Of course, the only emails the inspector general reviewed were those emails selectively chosen by Clinton and her legal team which, in their sole determination and judgment, they considered “relevant” to her job as secretary of state.
Neither the State Department nor the inspector general has sought or obtained direct access to the personal server installed in Clinton’s mansion in New York and the thousands of emails stored on that server, many of which Clinton says have already been deleted.
Although I never worked in the National Security Division, I spent four years at the Justice Department coordinating the investigation and prosecution of numerous cases.
I can virtually guarantee that if a federal agency discovered that any other federal employee with access to sensitive or classified materials had installed a personal server in her house through which he or she ran work-related emails, that agency would not have relied on that former employee to select and present copies of “relevant” emails for the agency to review in order to ensure that no unauthorized disclosure had occurred.
Instead, the Justice Department and the FBI would have been in court the day they found out about it, seeking a search warrant from a federal judge to seize the server as soon as possible to conduct a thorough investigation of the matter—including a forensic analysis of the computer system to see whether there was any evidence of hacker access to the server.
Assistant Attorney General Monaco certainly recognized the importance of this type of forensic analysis in her testimony. She pointed out that in the conduct of investigations, “recent advances in technology have provided new opportunities for investigators” because intelligence agencies “have enhanced their ability to audit information technology systems.”
Yet in the months since this issue came to light, neither the State Department nor the Justice Department has taken any publicly known steps whatsoever to obtain Clinton’s server.
Nor have they conducted a detailed technology audit of her computer system to determine whether foreign intelligence agencies or individual hackers accessed that server and thus the classified and sensitive information stored on that server.
Federal employees are strongly warned against using their personal emails for government business for several reasons:
- Doing so makes it impossible for agencies to comply with the Federal Records Act and other federal laws and regulations that require the preservation of federal records, including email communications.
- Doing so makes it impossible for federal agencies to comply with the Freedom of Information Act. In fact, we know that this has happened with the State Department, which has not fully responded to numerous FOIA requests because it did not have access to Clinton’s emails. Of course, it never told that to organizations like the Associated Press, which was forced to sue the Department over its lack of compliance with the law. According to the New York Times, a very annoyed federal judge, Richard Leon, recently told the State Department that he intended “to find out what was going on over there” or more accurately “what’s not going on over there” with the Department’s lack of response to FOIA requests from the AP that are over four years old.
Finally, you don’t have to be a skilled computer professional to know how vulnerable home computers are to unauthorized access or to realize that sensitive and classified information should be discussed only on government computer and email communication systems.
Those systems have very expensive, very vigorous security protections that are constantly monitored and enhanced. Yet Hillary Clinton essentially ignored this enormous risk by using her home computer system.
What plausible reason was there to set up such a personal system? I used a government-issued cell phone and BlackBerry for my voice and email communications when I worked for the Justice Department.
They were not any harder to use than Hillary Clinton’s personal device that she was running her emails and calls through.
Such facts inevitably raise questions about avoiding congressional oversight, the Freedom of Information Act, and the retention of communications by federal archivists.
One question that needs to be answered is whether Clinton’s actions also damaged the national security of the United States and put us at a disadvantage in the conduct of our foreign policy by giving hackers and foreign agencies access to high-level State Department communications and discussions.
We won’t know the answer to that question until the Justice Department conducts a thorough and intensive investigation—including a complete audit of Clinton’s home computer system.
Whether this Justice Department will conduct such an independent, credible investigation is another question.