Editor’s Note: Douglas Cox is a professor at the City University of New York School of Law. The views expressed are his own.
Douglas Cox asks: Did Hillary Clinton or those acting on her behalf destroy federal records in deleting her emails?
Clinton email controversy is sure to persist through Election Day, he says
The FBI’s public release of the report of its investigation into Hillary Clinton’s emails, including Clinton’s own FBI interview, provides striking revelations about her private server and her handling of classified information.
More significantly, the FBI report includes evidence of the possibility that Clinton, or those acting on her behalf, unlawfully destroyed federal records.
At the very least, the release of the FBI report – combined with the thousands of emails the FBI recovered during its investigation that Clinton failed to hand over and that the State Department is currently reviewing for possible public release – will ensure that the Clinton email controversy remains an issue through the November election.
Extremely careless, but not criminal
The FBI report provides new details about the complexity of the FBI’s investigation and gives additional context for FBI Director James Comey’s earlier statements that Clinton’s handling of classified information was “extremely careless,” but that the FBI was unable to find evidence sufficient to recommend criminal charges.
The FBI report identifies, for example, multiple servers used to house Clinton’s emails over time and found evidence of numerous attempts at unauthorized access by unknown parties. The FBI also found that Clinton used up to 13 different mobile devices during the relevant time period and that she and her attorneys were unable to locate any of these mobile devices for the purposes of its investigation.
The FBI also notes that when confronted during her interview with emails containing classification markings, Clinton said she did not understand that “(C)” markings indicated the presence of classified “Confidential” information. For a former secretary of state (and senator with significant experience working with classified materials), Clinton’s assertion that she did not understand the meaning of these markings strains credulity and will further feed concerns that her responses to this controversy have lacked candor.
Clinton’s FBI interview also contains a discussion, left partially unredacted, regarding information on drone strikes. This strongly suggests that press reports indicating that some of the most highly classified emails found on Clinton’s private server related to drone strike deliberations are accurate. These may well have been the emails FBI Director Comey referred to that Clinton and her aides “should have known” did not belong on an unclassified system.
Were federal records destroyed?
Of perhaps greater significance going forward are crucial new details about the destruction of emails that may have constituted federal records.
Clinton told the FBI that she was aware that her use of a personal email “did not negate her obligation to preserve federal records.” She even noted that former Secretary of State Colin Powell advised her in 2009 that if she used private email to “do business” her emails would be records “subject to the law.” Yet, the FBI investigation illustrates how Clinton repeatedly failed to fulfill her legal obligations under the federal records laws.
The FBI report references, for example, the earlier finding of the State Department Inspector General that Clinton violated the federal records laws by failing to surrender her work-related emails to the State Department when she left office in 2013.
The FBI investigation further reveals the highly questionable decision-making of both Clinton and her attorneys in how they reviewed Clinton’s emails when the State Department subsequently requested their return in 2014.
Clinton has repeatedly justified not having an impartial review of her emails to determine which constituted federal records by pointing to the fact that government employees routinely make such determinations given that they are best placed to assess the relevance and significance of such records.
Yet Clinton revealed to the FBI that when she directed her private attorneys to locate work-related emails, she “did not participate in the development of the specific process to be used” and that she was never “consulted on specific emails in order to determine if they were work-related.”
Problems with review by Clinton lawyers
Moreover, the FBI highlights significant problems with the adequacy and integrity of the process her attorneys used. The initial review was not based on the content of each individual email, but on key word searches and header information, a process that almost guaranteed that some federal records would be overlooked.
Another revelation came from an attorney working under Clinton’s senior attorneys David Kendall and Cheryl Mills. The lawyer, who conducted the initial review, told the FBI that Kendall and Mills would review emails that had been identified as work-related and would sometimes overrule that determination. The hard copies of such emails were “shredded” and not included in the emails presented by Clinton to the State Department. The standard her private attorneys used in making such decisions is unknown and now shrouded in attorney-client privilege.
Finally, after the review was complete, second-guessing of these determinations was precluded by Clinton’s decision in December 2014 to have her server deleted and wiped clean. The most stunning revelation of the FBI report is that the company housing the server did not actually destroy these emails until late March 2015, after the public controversy over the server had already begun and after a Congressional demand to preserve them.
While Clinton denied knowledge of this fact in her FBI interview, the FBI found evidence of a conference call between Clinton attorneys and the server company roughly contemporaneous with this destruction.
The FBI investigation through forensic examinations and other sources recovered over 17,000 emails that Clinton failed to hand over to the State Department. Most of these are currently undergoing a review by the State Department for possible public release, which will attract close scrutiny to the extent they constitute substantive federal records that should not have been destroyed or contain information Clinton might have wanted to conceal.
To be clear, the recovery and review of such emails may well provide evidence of an unlawful destruction of federal records, but it will likely still be insufficient to show a criminal act. The relevant criminal law prohibiting the destruction or concealment of federal records has been interpreted to require that there was a specific intent to violate the law. And Clinton’s carefully crafted statement in her FBI interview that she “never deleted, nor did she instruct anyone to delete, her email to avoid complying with the Federal Records Act, FOIA, or State or FBI requests for information” seems tailored to avoid this law.
Yet while FBI Director Comey also stated that the FBI “found no evidence that any of the additional work-related emails were intentionally deleted in an effort to conceal them,” he also made clear that violations of the federal records laws were not the subject of the FBI’s investigation. A separate criminal referral arising out of an inquiry by the National Archives into the federal records laws is possible, although unlikely.
In the end, while many voters may have already reached fatigue over the issue of Clinton’s emails or may have already made up their minds regarding its significance, the facts will continue to drip out. While concerns about Clinton’s judgment in this matter may not alter the decisions of some voters when compared to broader judgment concerns about her Republican opponent, Clinton’s actions raise reasonable concerns about her views on transparency and good government – and those concerns would be relevant in a possible Clinton administration.