The FBI has decided not to recommend criminal charges for Hillary Clinton over her use of a private email server, but Director James Comey’s explanation of the decision provides some additional information on what occurred and how. Among the 30,000 emails turned over by Hillary’s lawyers were eight chains classified at the highest level—“Top Secret”—plus 36 chains that were “Secret” and eight more that were “Confidential.” Comey went on to describe Hillary Clinton and her aides as “extremely careless in their handling of very sensitive, highly classified information.” Clinton’s behavior was “especially concerning” because her email system was not protected by a full-time government security team—or even by a sophisticated private service such as are employed by companies like Yahoo! and Gmail.
The FBI could find no sign of an intrusion into Clinton’s emails, but Comey noted that the nature of her system, which ultimately employed a number of servers, made it unlikely that the bureau could find such evidence even if an intrusion had occurred. One particular concern was that Clinton’s use of the private server while overseas—within the reach of “sophisticated adversaries”—rendered it “possible” that hackers had gained access. And Comey was careful to note that under normal circumstances, despite an FBI recommendation against criminal charges, behavior like Clinton’s might result in “security or administrative sanctions.”
What Comey did not say, though he suggested it, was that based on precedent, the possibility of obtaining a conviction in court would be minimal given the apparent lack of “intent” to defeat the security system in place with a clear understanding that the activity was illegal. The FBI clearly believed that Hillary Clinton had set up the private server for her own personal convenience—and to maintain control over her emails given her political ambitions, rather than letting them go into the government archive, where they might someday become accessible to the public and media.
As a former government employee who has had Top Secret, Codeword, and Special Access Clearances from the Department of Defense, Central Intelligence Agency, and State Department, I find the Clinton defense that she and her team considered the private server to be acceptable practice untenable. Anyone who has handled classified information knows very well that you do not copy it, you do not send it somewhere else or share it with someone who has no need to know, and you do not edit it down to make it unclassified in your opinion. It is not a matter for discussion, debate, or interpretation. For me and the former government employees in my circle, the entire Clinton charade that has been playing out for so many months is unfathomable. Apart from Clinton’s ignoring the guidelines for proper handling of classified information, outlined in Executive Order 13526 and 18 U.S.C Sec. 793(f) of the federal code, there is also some evidence of a cover-up regarding what was compromised, as many emails were erased. This itself would be a violation of the 2009 Federal Records Act and the Freedom of Information Act.
And then there is the political aspect of the investigation. In retrospect, it is interesting to note President Obama’s two statements regarding the inquiry. His first comment was that he would do nothing to impede the investigation and possible charges, elaborating that “That is institutionally how we have always operated: I do not talk to the attorney general about pending investigations. I do not talk to FBI directors about pending investigations. We have a strict line.” But he followed up by stating that “There’s carelessness in terms of managing emails, that she has owned, and she recognizes. I continue to believe that she has not jeopardized America’s national security.”
This suggests to me that Obama knew in advance where the investigation was going in spite of his disclaimers, and his signal that Hillary would in no way be punished for her actions is particularly telling. He recently endorsed Clinton and is participating actively in her campaign, which he would not have committed to if he’d had any concerns about her being indicted. He had to have known what was going to happen; secure in that knowledge, he has been able to do what he can to make Hillary Clinton the next president of the United States.
But even given all of that, I have to believe that the cautious James Comey did Hillary no favors. Comey has challenged her decisionmaking and as much as conceded that if she were currently a government employee she would be fired. Surely some voters, at least, will pay attention to that. As Robert Gates, who was CIA director under George H.W. Bush and defense secretary under George W. Bush and Obama, recently commented, the “whole email thing … is really a concern in terms of her judgment.” He added, “I don’t know what originally prompted her to think that was a good idea.”
Obama’s denial that national security has been compromised is also suspect. Comey carefully left the door open on that issue, and there have been reports that a Romanian hacker who goes by the name Guccifer repeatedly hacked Clinton’s server. He described the server as “like an open orchid on the Internet” and said “it was easy … easy for me, for everybody.” There have also been claims that Russian intelligence and other foreign services were able to hack the secretary’s server. Anyone with the proper equipment, knowledge, and motivation might have been able to obtain access. That is what hackers are able to do, with considerable success, against government servers that are far better protected than a private email setup located in an official’s New York State home.
The national media is awash with stories suggesting that Hillary Clinton has been vindicated by the Comey report, but I think not. The reality is much more complex than that, as the Clintons’ contempt for what many might consider “the rules” is again manifest. If Hillary Clinton had been an employee of State Department rather than the politically appointed head of the organization, I have no doubt that she would have been fired at a minimum or, more likely, sentenced to some jail time or subject to punitive fines. I say this because her setting up of a private server to handle government work is so outside the realm of acceptability that there should have been all kinds of warning bells and whistles going off when she decided to do it.
That no one within her entourage objected demonstrates how loyalty to powerful individuals who can advance one’s career, rather than to a government institution and the Constitution, plays out in Washington. It should serve as a warning for what might be coming in January 2017.
Philip Giraldi, a former CIA officer, is executive director of the Council for the National Interest.