FBI investigations are long, tedious, and thorough. Even as the latest batch of over 3000 of Hillary Clinton’s emails, released on New Year’s Eve, dribbles out, causing another spike in media controversy on the subject, the FBI continues to methodically pore over every single email to determine if classified information was sent via Clinton’s private server. This investigation might determine the course of the entire 2016 presidential election.
The Clinton campaign has done an excellent job of downplaying the significance of her potential mishandling of classified information, usually conflating it with the relative non-issue of her having a private server that hosted a private email system. But the simple fact Clinton had a private server isn’t the issue for the FBI. The issue is whether or not the server was vulnerable to espionage by a foreign entity or other unlawful access. The FBI doesn’t care if Clinton having a private server broke executive or State Department rules; the FBI isn’t interested if her server was ethical or not.
In fact, the Clinton campaign is entirely correct when it says there’s no criminal investigation into her emails. That’s because the FBI’s investigation is a counter-espionage investigation. Counter-espionage investigations are handled by the FBI’s counterintelligence division, an entirely different FBI unit from the special agents who investigate federal crimes like bank robberies, interstate kidnappings, domestic terrorism, or cybercrime. These agents are spy hunters. Normally, of course, they’re keeping tabs on Russian or Chinese or Iranian spies operating in the United States, looking for the next Robert Hanssen or Aldrich Ames. But they can also be responsible for investigating U.S. vulnerabilities to foreign espionage, such as Clinton’s private server, upon which she conducted government business.
According to a recent Politico article, “Former FBI and Justice officials familiar with the investigative procedures on such matters said the agency must determine two main things: whether the use of an outside email system posed any risks to national security secrets and, if so, whether anyone was responsible for exposing classified information.”
Meaning, the FBI’s counter-espionage investigation revolves around whether or not Clinton’s server had any information on it that could pose a risk to national security if leaked, and, if it did contain information of that nature, whether or not that information was accessed by unauthorized personnel. Obviously, at the top of the “unauthorized personnel” list would be Russian or Chinese spies that hacked in, but that list would also include anyone on Clinton’s staff who sent or received information they didn’t have the proper clearance to look at.
So who makes the determination there was something on Clinton’s server that posed a risk to national security if leaked? Easy answer: The FBI will make that determination in the due course of its investigation.
There’s been an immense amount of confusion on this point because the State Department and the inspector general of the intelligence community are saying different things in the media.
The inspector general of the intelligence community clearly and succinctly stated that at least some of Clinton’s emails contained classified information. And, in a press release regarding some of Clinton’s emails that did not contain classification markings, the IC IG office stated, “These emails were not retroactively classified by the State Department; rather, these emails contained classified information when they were generated and, according to IC classification officials, that information remains classified today. This classified information should never have been transmitted via an unclassified personal system.”
The Clinton campaign and the State Department has cleverly said no information that was marked as classified was sent or received on her server. Which, of course, is technically true. Classification markings are only used on documents sent on classified systems. Obviously, Clinton’s private server was not a classified system. But just because a piece of information isn’t marked classified doesn’t mean it isn’t classified, just as removing all the Dodge Ram insignias and markings from my truck doesn’t mean I’m not driving a Dodge Ram.
Or say I wrote up a synopsis of the latest “Star Wars” movie and included all the spoilers; if you read it, you know the contents of the movie, even if you’ve never seen the movie itself. In the same way, if perhaps a Clinton aide rewrote something they remembered from a classified briefing they sat in on and then emailed it, that email contains classified information. It doesn’t matter that the email wasn’t marked as classified or that the material wasn’t verbatim from a classified product. And when that information is later identified as being classified during an independent review, everyone understands it was classified the whole time. It didn’t suddenly become classified.
If the FBI determines the Clinton server contained classified information, which I believe it will, it will have a decision to make: It can recommend the Department of Justice indict Clinton for mishandling classified information (the server was ultimately her responsibility, after all) or it can do nothing. The FBI doing nothing would certainly be Clinton’s preferred outcome, but if the FBI recommends an indictment, it will then be up to the DoJ to decide whether or not to indict.
All of this means Hillary Clinton’s presidential aspirations will likely depend on whether or not President Obama’s DoJ indicts her, not the results of any of the presidential primaries starting in just a few weeks. While she can likely still run for president while under indictment (Rick Perry did it), she’d have to convince a lot of independent voters that a pending criminal indictment wouldn’t impact a Clinton presidency. And as much as Bernie Sanders has downplayed the Clinton emails to this point, he would be a fool to refuse to exploit the damage done to Clinton by a criminal indictment from the DoJ.
Still, the most likely scenario may be that the FBI recommends an indictment, but the DoJ refuses to indict her. While such a decision would certainly reek of partisanship from the left, most of the outrage from the right would likely be directed at an Obama administration that wouldn’t face any political repercussions in its short time left in office. However, though a non-indictment might not hurt the Clinton campaign too much in the short term, it could hobble a Clinton presidency with questions of legitimacy from the beginning. How can someone accused by the FBI of mishandling classified information qualify to be the one person with access to ALL classified info? And it would likely take the Democrats a long time to shake such blatant favoritism.
The FBI’s investigation is not yet concluded; they continue to take the turtle’s pace to the task, slow and steady. The FBI isn’t prone to give weekly updates on the progress of its investigations, so it may seem like there’s nothing happening. But the agents and analysts working the case have tens of thousands of emails to review, and it will all get reviewed no matter how long it takes or what political pressures exist. While the DoJ falls under the executive branch and will act upon the president’s direction, the FBI is an apolitical organization. I am confident it will make a recommendation based on its investigative conclusions. Meanwhile, the media will continue to froth, and the Clinton presidential campaign will continue on as if there were no axe above its head.
(Featured image courtesy of dailysignal.com)