Friday, July 8, 2016

You’ve Got Mail: Why Emailgate Ended This Way


To:       07/07/2016 04:27 PM      

From: The Conversational Lawyer 

Re: Emailgate – Why Did It End This Way?

No doubt you are breathing a big sigh of relief. After all this time, a scathing State Department inspector general report in May, and a lengthy statement by the FBI Director Tuesday that sounded like it would end with "and that is why the Bureau is recommending that Secretary Clinton be charged," you will not be charged with a crime after all. Attorney General Lynch confirmed that late Wednesday. 

The question everyone (but you) is asking is this: How did you avoid being charged? In trying to answer this question, I thought it would be useful to review the applicable law, the inspector general findings, the FBI findings, and some other high profile cases. My conclusion is at the end of this message.

The LawThe primary criminal law that was at issue, 18 U.S.C. §793(f), was originally part of the Espionage Act of 1917. It provides in part as follows:

§793. Gathering, transmitting or losing defense information
. . .
(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, . . .
Shall be fined under this title or imprisoned not more than ten years, or both.
The legal question comes down to this: Did your use of private servers and overall treatment of official email constitute a violation of this law? Keep in mind that unlike other subsections of §793, there is no intent or knowledge requirement; rather, gross negligence constitutes a violation. As you know, gross negligence is a term that comes from tort law. Negligence is generally defined as the failure to exercise the due care that a reasonable person would exercise under the circumstances. Gross negligence is defined in many ways, but typically is thought of as extreme or reckless negligence. In looking at Merriam-Webster’s online dictionary, I note that the first synonym for negligence is carelessness, and based on my experience, I do not see any difference between gross negligence and extreme carelessness. That may explain why the FBI Director said you engaged in extreme carelessness – that way he could say you technically did not violate the law but really did (see below).

State Department ReportI hate to bring this up, but remember what the State Department Inspector General (IG) had to say when he issued a lengthy report highly critical of the handling of emails and cybersecurity at State generally, including by you? The media focused largely on the portions concerning your tenure. Of note is the fact that you declined even to be interviewed. Perhaps most damning was the IG finding that there was no evidence you ever “requested or obtained guidance or approval to conduct official business via a personal email account on [your] private server.” As the IG report states, you “had an obligation to discuss using [your] personal email account to conduct official business” – although Department officials stated that they would not have approved your use of a personal email account to conduct State Department business. The FBI seems not to have focused on this issue at all, which is probably a good thing for you since the facts are a bit inconvenient here.

FBI FindingsThe FBI concluded as follows, as set forth in the written statement issued by Director Comey: 

  • You used several different servers, not just one, as well as several mobile devices, to communicate State Department business by email on a personal domain. 
  • While you turned over approximately 30,000 emails in 2014, the FBI located several thousand more.
  • Of the 30,000 emails, 110 emails in 52 chains contained classified information; 8 chains contained Top Secret information; 36 chains contained Secret information; and 8 contained Confidential information.
On the ultimate issue of whether a crime was committed, the FBI stated as follows:
  • “Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.”
  • “There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation. In addition to this highly sensitive information, we also found information that was properly classified as Secret by the U.S. Intelligence Community at the time it was discussed on e-mail (that is, excluding the later “up-classified” e-mails).”
  • “None of these e-mails should have been on any kind of unclassified system, but their presence is especially concerning because all of these e-mails were housed on unclassified personal servers not even supported by full-time security staff, like those found at Departments and Agencies of the U.S. Government—or even with a commercial service like Gmail.”
The FBI also concluded it is possible that hostile actors obtained access to your email.

As noted above, the end of the Director’s statement was a surprise – clearly in a good way for you – when he announced that, “[a]lthough 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.” 

Thank goodness for prosecutorial discretion, right?

Similar Cases That Might Have Hurt You  But Did NotTwo CIA Directors had trouble with classified information as well, but both of them (unlike you) were the subject of criminal charges. These cases could have been used as precedent against you. In 2015, former CIA Director David Petraeus agreed to plead guilty to a misdemeanor charge of mishandling classified materials, for which he received probation and a $100,000 fine. And in 1996, your husband’s CIA Director, John Deutch, resigned from his position after it was disclosed that he stored highly classified information on his home computer. Subsequently, Deutch agreed to plead guilty to a misdemeanor and pay a $5,000 fine; however, your husband pardoned him on his last day in office before the case was filed.

Wonder why those cases were not seen as relevant? Me too.

ConclusionSo why do I think you got a pass? A few reasons.

1. Too Big to Charge. As some banks are too big to fail, maybe some people are too big to charge. Being the presumptive Democratic nominee may have been the saving grace. No way the FBI Director wanted to be seen tying you up in a criminal case as you run for President.

2. Not a Clear Winner. The FBI Director is a former prosecutor and, like all prosecutors, he only wants to bring winning cases and likes it when defendants take a plea. Your story about wanting to shield your personal life is believable and a jury might very well accept that rationale. By the way, nice move having Huma lay that rationale out there in her recent deposition!

3. Not a Traitor. No one seriously believes that you were trying to aid our enemies or were even thinking that any of this could hurt the country. No, they know you well enough to understand that you were only worried about yourself. Careless yes; intent to harm the nation, no. Of course, while the statute has no intent requirement, it was still a factor.

4. Colin Powell. What does he have to do with this, you ask? Here is what the IG had to say:

Secretary Powell has publicly stated that, during his tenure as Secretary, he “installed a laptop computer on a private line” and that he used the laptop to send emails via his personal email account to his “principal assistants, individual ambassadors, and foreign minister colleagues.” Secretary Powell's representative advised the Department in 2015 that he did not retain those emails or make printed copies. Secretary Powell has also publicly stated that he generally sent emails to his staff via their State Department email addresses but that he personally does not know whether the Department captured those emails on its servers.
So Colin Powell used his own computer to conduct official business as Secretary of State, did not retain emails, and does not know if they exist. Admittedly, the rules at the State Department tightened up before you arrived, but does anyone think Director Comey would bring a case against you that might suggest indirectly that Powell acted improperly? 

5. Finally, as Tom Petty says, You Got Lucky

*     *     *     *     *

A few more things, although you probably thought of most of these because of your work on Watergate:

If you do win in November, you might want to check the oval office to make sure that Nixon's tape recorders were really removed, have the White House plumbers standing by in case of any leaks, call an exterminator to deal with bugs . . . and please, only use Snapchat for personal matters. 


  1. So well done, you should submit this to WSJ for inclusion in it's OpEd page?

  2. Eric, interesting analysis but you left out an important detail: unlike Secretary Clinton, Director Petraeus was charged because he knowingly turned over classified information to a person with whom he was romantically involved and was not entitled to receive or view such classified information. That is a clear violation of 18 U.S.C. §793(f) as he " delivered [classified information] to anyone in violation of his trust". Secretary Clinton's emails were with other State Department employees and one could argue that while the information was more prone to hacking due to the lax security measures, never actually "removed from its proper place of custody". That's why I think no prosecutor would take this case: there is a fairly reasonable defense to the charge.

    1. Taran: Your point about place of custody is spot on, and a good example of how a soon to be 100 year old law does not necessarily fit with our modern cyberworld. It also is no doubt one of the reasons this was not seen as a clear winner. General Petraeus, who ultimately pleaded guilty to a misdemeanor charge under a different law, 18 U.S.C. §1924, had another very big difference -- he admitted as part of his plea that he knowingly made false statements to the FBI about his handling of the classified information.

      Thanks again for commenting.

  3. Do you have a Youtube channel as well with this kind of content on it? I would love to see this post turned into a longer video if possible. Maybe I can share on it on my website.
    Scott Lanzon Knoxville