But her emails! A Stroll Down Memory Lane

 

But her emails!

The most obvious parallels between something a Democratic candidate did and something a once and future Republican candidate is the matter of Hillary Clinton's e-mail server and Trump's classified documents at Mar-a-Lago.  I the interest of equality before the law, Republicans say, why wasn't Trump treated the same way as Hillary.  Democrats and Republicans accused of the same crime should be treated the same in order to avoid a two-tier system of justice.

The obvious response is that each case is unique, that differences are not limited to the party affiliation of the accused, and that equality before the law requires assessing each case on its individual merits, not establishing a rigid quota system between the parties.  In other words, bumping and shooting both fit in the category of assault, but they are not equally serious and should not be treated that way just because the individuals accused belong to different political parties.

So, let's go back and look at what those differences are, exactly, which means remembering what Hillary Clinton actually did.  The Inspector General wrote a report for anyone with enough patience and fondness for alphabet soup.  Since I had better things to do with my life, I read over a review of the report and listened to a Lawfare podcast which interviewed both the author of the report and Peter Strozk, who handled the Clinton e-mail investigation as well as the Trump counterintelligence investigation.

A history of events

It is generally remembered that the Clinton e-mail investigation began with the Congressional Benghazi investigation.  Congressional Republicans were looking for some dirt on Hillary regarding an attack on our embassy in Libya when she was Secretary of State.  As part of the investigation, Congress asked for Hillary's State Department e-mails and received the shocking response that the State Department did not have them; that she kept them on a home sever.  

And to be clear, that was a definite no-no.  Under the Freedom of Information Act (FOIA), the Secretary of State is supposed to send State Department e-mails on the Department's official server to preserve them as public records, so Hillary was clearly in violation of FOIA from the start.  But FOIA is not a criminal statute, so her violation was not a crime.  Instead, the State Department directed her to sort out her private from official e-mails and turn over the official ones.  Since there were over 60,000 e-mails on the server, hand-sorting them was not a realistic option.  Instead, Hillary's lawyers used a search engine to separate private from official e-mails and turned over the official ones.  Hillary's lawyers ended up deciding that 30,490 e-mails were official and turned them over and that 31,830 were personal and kept them.  This happened in December, 2014.  Since the use of a private server was improper, though not criminal, the Inspector General of the intelligence community did a review and discovered classified information among the e-mails.  This was a crime, so investigation was referred to the FBI.

But her emails!

This was actually quite similar to what happened with Trump.  In his case, he took a large volume of written records home in violation of the Presidential Records Act.  This was also a violation of disclosure laws, but, like FOIA, the Presidential Records Act is not a criminal statute, so there was no crime.  The National Archives demanded the records, with the same condition in place that only official, and not personal, materials had to be turned over.  Trump turned over part of the official records.  National Archives personnel discovered classified materials among the records and referred the matter to the FBI.  No unequal treatment there.

Instead of saving the personal e-mails just in case, Hillary ordered Paul Combetta, her IT manager, to reduce her storage time to 60 days.  This happened some time in late 2014.  Since there was no subpoena or preservation order in place, this was not illegal, though it may have been ill-advised.  Combetta neglected to do so.  Then, on March 2, 2015, the New York Times, which right wingers rather absurdly keep thinking is in the tank for the Democrats, published a story reporting on Hillary's private server.  The Committee then issued  preservation order and a subpoena of all its contents.  (Did they not know before?)  And Combetta, realizing he had neglected to implement the new retention policy, deleted the existing e-mails with a program called BleachBit, which Trump persistently and incorrectly interprets as a literal acid wash.  Needless to say, that was a huge mistake!  It also points up the importance of not conducting official business on a private server.  Keeping servers separate avoids the whole problem of mixing up personal and official messages.

The FBI, through a thorough technical inspection of the server, was able to retrieve 17,488 e-mails -- some personal, some official -- in addition to the ones Hillary had turned over.  It was not able to determine how many were among the ones deleted and which were automatically deleted by the server's retention policy -- another good reason not to use a personal server for official business.  

Point of comparison: When Trump received the letter from the National Archives telling him to turn over presidential records, he sorted through them, deciding which official records to turn over and which ones to keep.  Even when he received a grand jury subpoena for all classified documents in his possession, he carefully sorted through, deciding which documents to turn over and which to keep, and deceiving his lawyers into believing that he had turned over all records when he had not

What was in the e-mails?

Of the 30,490 e-mails provided, 69 chains contained classified information. Of the additional 17,488, 12 chains contained classified information.  This meant a total of 81 chains with classified information, and a total of 193 individual e-mails.  They were classified at various level.  Strozk, on the podcast, offers some additional context.  The classified information generally did not originate with Hillary.  (I am not clear whether any did at all).  It usually originated lower in the State Department and made its way to the top.  No headers indicated that the e-mails contained classified information.  It is not clear whether the lower-level employees realized that they were sending information to a home server, nor is it clear whether Hillary recognized that the information she received was classified.

While the content cannot be disclosed, the most sensitive materials appear to have been about subjects that required a prompt response and did not have time to send on the State Department's antiquated secured system. The point was not made clear, but this suggests that even in the absence of a private server, this information would have been sent without adequate security.  State Department personnel tried to avoid classification problems by talking in oblique hints about what they were discussing.  Often, that was not good enough.

So far as I can tell, no actual documents were attached to the e-mails or stored on Hillary's server.  A few e-mails contained a (c) indicating confidential.  Hillary said that she did not recognize the meaning of the (c) and thought it was numbering paragraphs.  The FBI, including Storzk, were skeptical. (If it was numbering paragraphs, were were (a) and (b)?).  But being skeptical is one thing.  Proving beyond reasonable doubt that Hillary was lying is another.  And in any event, confidential is the lowest level of classification, including a great deal of not-particularly-sensitive material.  Mishandling of confidential information is normally treated as an administrative, rather than a criminal, matter.

Again, compare Trump, who took home 337 documents clearly marked classified.

The decision whether to prosecute

James Comey, famously (or infamously) made a public statement that all prosecutions for mishandling of classified documents involved at least one of four aggravating factors:

1. Deliberate action
2. Volume so large that deliberate action may be inferred
3. Disloyalty to the US or
4. An attempt to obstruct the investigation

Keep in mind this was not an argument that these requirements were part of the statute.  Nor was there any specific court precedent saying that prosecution was allowed only under these four circumstances.  But there was an unarticulated precedent in the sense that all prosecutions for mishandling of classified documents had involved one of these four factors.  Comey simply articulated what had once been unarticulated.  Presumably it will be the explicit, rather than implicit, standard for prosecution in the future.  

The Inspector General's Report and Lawfare review offer six factors:

1. Whether the information was marked as classified
2. Whether the information was used for official purposes
3. Whether the defendant knew the information was classified
4. Whether there was a personal warning that the information was classified
5. Whether the action was deliberate
6. Whether there was obstruction

It seems to me that (1) official markings, (2) knowledge the information was classified , and (5) intent all fit within the first Comey factor of intent.  Warning and obstruction seem to fit in the fourth Comey factor of obstruction.  The use of the information is something different and significant that doesn't quite fit in any of the Comey factors, but I will apply them anyhow, and squeeze in use somewhere.

Intentional Act:  Intent is a subjective state of mind and can therefore be very hard to prove.  I suppose normally it is inferred by surrounding circumstances.  When Reality Winner folded over a document and smuggled it out in her pantyhose, that looks very much like intent. When Jack Texiera painstakingly hand copies classified documents to show to his friends, that also looks very much like intent.  When Hillary Clinton received an unmarked e-mail discussing sensitive information in an oblique manner and responded she had the defenses that she did not know the information was classified because it was not marked as such and did its best to be vague, and besides, she did not initiate the exchange.

As for Trump, my first thought was that he was packing his things with undue haste (undue because he did not start packing as soon as he lost the election, but only after the January 6 insurrection failed, leaving him only two weeks to move) and might have accidentally included some classified material.  Accidents of this type are common, after all, even among Presidents who start packing on time.  In fact, all Presidents appear to have taken home some classified materials by mistake, which probably means we need to set up a more effective process.  So my first thought was that Trump might have the defense that he accidentally packed the wrong things in haste.

But then the DOJ came out with a piece of evidence I did not have on my bingo card -- a recording of the defendant saying, "This is secret.  Look, look!"  That sounds like pretty strong evidence of intent.

It also encompasses the second factor cites by the Inspector General -- whether the documents were used for official purposes.  Hillary's e-mails were always to State Department employees with proper classification on State Department business.  Trump took his documents home, apparently as souvenirs, and at least twice showed them to people with not clearance.

Large volume.  Again, this is a subjective decision.  What is a "large volume"?  Is 81 e-mail chains and 193 total e-mails out of over 30,000 a large volume?  What about 337 classified documents spread out over 78 boxes (or more)?  And does it matter that 337 documents is more than 337 pages, since many were multi-page documents?  Still, I would say that Hillary's e-mail server does not seem to have been primarily dedicated to confidential information.  It was entirely a (non-criminal) violation of FOIA, but the classified material was a small percentage of the total.  As for Trump -- well, likewise, interspersed among the total contents of the boxes, 337 documents does not seem like so much.  But it still seems like a lot.

Disloyalty to the United States.  Despite some lurid speculations, there is no evidence of it in either case.  Nor is there any evidence in either case that the classified materials accidentally fell into hostile hands.  There is no evidence that Hillary's server what hacked, even as the State Department was hacked.  And the Mar-a-Lago storage facility did not meet government standards of security, but the security cameras in place make any hostile access seem most unlikely.

Obstruction.  We have what looks like an open-and-shut case of obstruction in Trump's case.  When the National Archives demanded that Trump turn over the records he had taken home, Trump turned over 15 our of 78 (or more) boxes.  When Trump received a grand jury subpoena, his first impulse was simply not to comply.  When his lawyers told Trump that he must comply, Trump privately sorted through the boxes and chose which ones to let his lawyer see.  He also strongly hinted that his lawyer should remove anything that was really damaging.  He turned over an incomplete set of documents, and also moved some boxes out of Mar-a-Lago.  The search revealed 102 additional documents.  The only thing missing is a tape of Trump saying, "Let's obstruct this investigation."  

What about Hillary?  Obviously the act of deleting over 30,000 e-mails upon receiving a subpoena looks really bad. At first glance, this looks like a clear case of obstruction.  But closer investigation makes things less clear.  First there is Paul Combetta's testimony.  Combetta is the IT guy who testified that he received instructions to delete personal e-mails before receiving a subpoena or preservation order, and forgot to act until after.  This sounds very much like a loyal soldier agreeing to be the fall guy.  But Storzk and the Inspector General found confirming evidence:

• The FBI subpoenaed all Clinton's e-mails with any other government agencies likely to receive classified materials.  It compared the received e-mails to the ones Hillary voluntarily provided and found they matched.  The match was not perfect -- the 17,488 retrieved e-mails did include official business.  But the records were close enough not to create any impression of deliberate obstruction, as opposed to error.
• There was nothing particularly inflammatory about the work e-mails the FBI retrieved.  Twelve contained classified information, but only at a low level of classification.  This is not to deny that there was highly classified information in the e-mails. They included "sensitive compartment information," four "special access program" and one that was "merely" top secret.  But all of these were among the e-mails Hillary voluntarily provided.  The deleted ones were merely "secrete" or "confidential."  This creates an inference of error, rather than obstruction.  
• The FBI also found messages to Combetta several months before the preservation order telling him to reduce storage time for her personal e-mails to 60 days.  There was other extrinsic evidence as well supporting Combetta's account.

So, basic conclusion, the investigation of Hillary Clinton's e-mails was not a frivolous one and appears to have been completely appropriate and not partisan in its origins.  But the decision not to prosecute was also well in line with existing precedent.

And as for Trump -- if he had cooperated, chances are good that no charges would have been brought.  But he chose to obstruct.  So he was charged.