By: John Solomon and Kellan Howell
Though
it was not their primary mission, FBI agents who investigated Hillary
Clinton's email collected significant evidence suggesting she and her
team violated federal record-keeping laws, including persisting to use a
private Blackberry and server to conduct State Department business
after being warned they posed legal and security risks, government
sources tell Circa.
The
evidence was compelling enough to convince FBI Director James Comey
that the Clinton team had not complied with record-keeping laws and to
cause at least one witness to raise their Fifth Amendment right against
self-incrimination during an investigative interview, the sources said.
In
public, the FBI recommended not filing criminal charges against Clinton
on national security grounds. But in private, the Bureau chose to
defer to the State Department on whether to recommend anyone to the
Justice Department for criminal prosecution on records law violations,
the sources said, speaking only on condition of anonymity.
Each
email transmission of a government document that was not preserved or
turned over to the State Department from Mrs. Clinton's tenure could
theoretically be considered a violation of the Federal Records Act, the
main law governing preservation of government records and data.
Other
federal laws make it a felony to intentionally conceal, remove or
destroy federal records as defined under the act, punishable with a fine
and imprisonment of up to three years.
A single conviction also carries a devastating impact for anyone looking to work again in government because the law declares that any violator "shall forfeit his office and be disqualified from holding any office under the United States."
A single conviction also carries a devastating impact for anyone looking to work again in government because the law declares that any violator "shall forfeit his office and be disqualified from holding any office under the United States."
The
FBI "indirectly documented hundreds, and likely thousands, of
violations of the Records Act," one source with direct knowledge of the
FBI's investigation told Circa.
Using forensics, the FBI recovered from computer drives and other witnesses about 17,500 emails from Mrs. Clinton's private account that dealt with government business, most that had not been turned over by her or her aides, the sources said.
Using forensics, the FBI recovered from computer drives and other witnesses about 17,500 emails from Mrs. Clinton's private account that dealt with government business, most that had not been turned over by her or her aides, the sources said.
Some
of the emails recovered by agents were germane to Freedom of
Information Act (FOIA) requests from the public and congressional
investigations and had not yet been produced, the sources said.
Accounts from witnesses suggested the efforts to keep Mrs. Clinton's government email communications on a device and server outside the reach of public records laws or congressional oversight were "systemic and intentional" and began as soon as Mrs. Clinton took office in 2009, one source told Circa.
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Accounts from witnesses suggested the efforts to keep Mrs. Clinton's government email communications on a device and server outside the reach of public records laws or congressional oversight were "systemic and intentional" and began as soon as Mrs. Clinton took office in 2009, one source told Circa.
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For instance, the sources said agents secured testimony and documents suggesting that Mrs. Clinton's team:
-Was informed in 2009 that she had an obligation under the records law to forward any government-related records contained in private email to a new record preservation system known as SMART but chose not to do so because her office wanted to keep control over "sensitive" messages.
-Was informed in 2009 that she had an obligation under the records law to forward any government-related records contained in private email to a new record preservation system known as SMART but chose not to do so because her office wanted to keep control over "sensitive" messages.
-Was
specifically questioned by a technical worker who was involved with her
private email server in the Clinton family home in New York whether the
arrangement was appropriate for a government official under the federal
records law. The worker was assured there were no problems.
-Wanted to keep her private Blackerry email service because of fears a government email address would be subject to public scrutiny under the Freedom of Information Act.
-Wanted to keep her private Blackerry email service because of fears a government email address would be subject to public scrutiny under the Freedom of Information Act.
-Was
aware that government officers complying with FOIA requests did not
have access to search Mrs. Clinton's private email for responsive
records.
-Persisted in allowing her to use private email to conduct State Department business even after a cable was sent under her name in 2011 to all diplomats worldwide urging them to stop using private email because of foreign hacking fears.
-Persisted in allowing her to use private email to conduct State Department business even after a cable was sent under her name in 2011 to all diplomats worldwide urging them to stop using private email because of foreign hacking fears.
-Allowed
Clinton to keep using the private email system after after she
personally received a 2011 presentation warning of dangers of the
private email for government business.
-Had prior reason from earlier legal cases involving their conduct to know that emails covering government business were legally required to be preserved and turned over to their agency and the National Archives.
-Had prior reason from earlier legal cases involving their conduct to know that emails covering government business were legally required to be preserved and turned over to their agency and the National Archives.
-Failed
to preserve private emails from Clinton that clearly involved
significant government business, including discussions with Army Gen.
David Petraues, the Benghazi tragedy, meeting requests with foreign
leaders and the State Department's quadrennial policy and performance
review.
During
a brief aside at a House Judiciary Committee hearing in July, Comey,
the FBI Director, was asked by a congressman if he believed Clinton
complied with State Department procedures and federal record keeping
laws.
"I
don't think so. I know you have the State inspector general here, who's
more of an expert on all the department's policies, but at least in
some respects, no," he answered. Comey, however, offered no explanation
why charges weren't filed.
Attorney General Loretta Lynch said in mid-July that she did not believe her department had assessed whether Clinton or her team violated the Records Act.
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"I don't know if that was under the purview of the investigation. I don't recall a specific opinion on that," she said.
Attorney General Loretta Lynch said in mid-July that she did not believe her department had assessed whether Clinton or her team violated the Records Act.
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"I don't know if that was under the purview of the investigation. I don't recall a specific opinion on that," she said.
The
Clinton campaign did not respond to a request for comment. But Mrs.
Clinton has said she regrets using private email to conduct official
State Department business.
Her former chief of staff, Cheryl Mills, also expressed some regret, saying the Clinton team thought her records would be preserved because her private emails usually went to other government email accounts, but that was mistaken.
Her former chief of staff, Cheryl Mills, also expressed some regret, saying the Clinton team thought her records would be preserved because her private emails usually went to other government email accounts, but that was mistaken.
Former
President Bill Clinton was less apologetic, strongly dismissing Comey's
and the FBI's criticism of his wife. "This is the biggest load of bull I
ever heard," he said a few weeks ago.
A retired federal prosecutor told Circa the FBI and DOJ could easily have brought a case if the evidence pointed toward intentional violations.
"If you get enough instances of people violating the Federal Records Act and if it's a group of folks then you could look at things like a conspiracy, or a criminal enterprise, that could bump it up to a felony," he said.
A retired federal prosecutor told Circa the FBI and DOJ could easily have brought a case if the evidence pointed toward intentional violations.
"If you get enough instances of people violating the Federal Records Act and if it's a group of folks then you could look at things like a conspiracy, or a criminal enterprise, that could bump it up to a felony," he said.
Matt
Whitaker, who served as U.S. Attorney for Iowa under President George
W. Bush and President Barack Obama and now runs a conservative-leaning
government ethics group, had this to say:
"There are a lot of intentional acts, including the setting up of the private email server, that probably could go to a question of was this intentional and was this violation of both the records act and the handling of classified material."
"There are a lot of intentional acts, including the setting up of the private email server, that probably could go to a question of was this intentional and was this violation of both the records act and the handling of classified material."
Whitaker
said he believes a special prosecutor should be appointed to review the
Records Act questions because "in this political silly season it
appears that the FBI and especially the Department of Justice doesn't
have the stomach to pursue the potential charges that emanate from this
behavior."
Ronald
Hosko, who retired two years ago as the Assistant FBI Director in
charge of the bureau's criminal division, agreed Mrs. Clinton's actions
at the State Department showed a disregard for her obligation to
preserve and protect sensitive government information.
He said such responsibilities were "taken seriously" inside the FBI but that "does not appear to be the case in the State Department under Hillary Clinton. To me, this was a systemic failure at State, top to bottom."
He said such responsibilities were "taken seriously" inside the FBI but that "does not appear to be the case in the State Department under Hillary Clinton. To me, this was a systemic failure at State, top to bottom."
The FBI's former criminal division chief said the State Department email scandal was a "systemic failure."
But
Hosko said a misdemeanor case wouldn't be sexy enough for the FBI --
stretched by higher terrorism, organized crime and cybersecurity
priorities -- to pursue, especially against a candidate leading the
presidential race right now in a polarizing election. "The FBI is an
agency with finite resources. Seldom do you expend resources when the
top available penalty is a misdemeanor," he said. I'm not saying you
don't consider it or contemplate it. I would say you contemplate it if
the facts are so compelling and the intent is so overwhelmingly clear,
that her desire was to violate that statute.
"But
we are in a hyper-politicized time in America. Would the electorate
take to that? You have to take that all into consideration."
Sources directly familiar with the FBI's thinking said the bureau was not concerned about the election and did make a short reference to Federal Records Act issues in its final report to the Justice Department.
Sources directly familiar with the FBI's thinking said the bureau was not concerned about the election and did make a short reference to Federal Records Act issues in its final report to the Justice Department.
But
it chose to defer to State to decide if criminal charges should be
filed. "It's their records and their determination to make," one source
said, describing the philosophy that governed the FBI's final decision.
In a non-investigative report in June, the State Department's internal watchdog concluded Mrs. Clinton was one of only three senior department officials in the last two decades to use a private email account exclusively for government business and that her team did not comply with the record-keeping policies of the Federal Records Act.
In a non-investigative report in June, the State Department's internal watchdog concluded Mrs. Clinton was one of only three senior department officials in the last two decades to use a private email account exclusively for government business and that her team did not comply with the record-keeping policies of the Federal Records Act.
Douglas
Welty, a spokesman for the State IG, said Thursday the office has no
further work planned on the Clinton email scandal. "The OIG has
completed its work. The OIG does not comment on whether or not it has
referred, or will refer, any particular matter to DOJ," he wrote in an
email to Circa.
State Department officials declined comment.
State Department officials declined comment.
The
Federal Records Act was passed by Congress 66 years ago to ensure
federal agencies properly managed and maintained government records so
they are preserved for historical purposes at the National Archives and
for public access and congressional oversight.
The law was updated by lawmakers in 2014, legislation that President Obama himself signed.
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The law was updated by lawmakers in 2014, legislation that President Obama himself signed.
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Since
the mid-1990s, the State Department has made clear to its employees
that emails were public records covered by the Act, even those sent on
their private accounts.
In 2009, State employees were instructed if they used personal email for work they had an obligation to upload the emails to a special system called SMART to preserve the records.
In 2009, State employees were instructed if they used personal email for work they had an obligation to upload the emails to a special system called SMART to preserve the records.
Much
of the focus during the presidential race has been on the more than 100
emails that moved between Mrs. Clinton and her top aides that contained
intelligence classified at the confidential, secret and top-secret
level at the time it was transmitted.
Comey announced earlier this summer that Mrs. Clinton's and her staff's handling of intelligence was "extremely careless" but the bureau decided not to request criminal charges for violating national security laws because agents found insufficient evidence of intent and motive.
Comey announced earlier this summer that Mrs. Clinton's and her staff's handling of intelligence was "extremely careless" but the bureau decided not to request criminal charges for violating national security laws because agents found insufficient evidence of intent and motive.
After
her private email system was discovered, Mrs. Clinton eventually turned
over 55,000 pages from about 30,000 emails involving State Department
work.
But FBI officials recovered about 15,000 additional emails on her private account that involved government business by sweeping her old devices and servers or scouring the government emails of other people she corresponded with.
But FBI officials recovered about 15,000 additional emails on her private account that involved government business by sweeping her old devices and servers or scouring the government emails of other people she corresponded with.
"There
was plenty of evidence from our interviews, especially from technical
and compliance staff, as to the intention of creating a private email
system outside the State Department's record keeping. It was well known,
and it persisted even after people raised legal and security concerns,"
one source told Circa.
At
least one witness in the technical community involved in setting up,
maintaining or wiping Clinton's email equipment was concerned enough
about their legal liability under federal records laws to invoke their
Fifth Amendment right against self-incrimination during an FBI
interview, sources said.
Hosko said if there is compelling evidence of intent to evade the law, the FBI could consider recommending misdemeanor charges.
Among
the strongest evidence gathered by investigators occurred in late 2010,
when Mrs. Clinton was directly approached by one of her top deputies
and informed that her government emails from her private account were
not reaching State Department officials and possibly were going to spam.
Mrs. Clinton was encouraged to get an official State email address.
Mrs. Clinton told her deputy she was willing to get a govermment email address if she could be assured her personal emails wouldn't be "accessible" to the public.
Mrs. Clinton told her deputy she was willing to get a govermment email address if she could be assured her personal emails wouldn't be "accessible" to the public.
Rather
than create the government email address, State officials went to a
technical person maintaining her private server and made adjustments to
the server to ensure emails wouldn't be treated by the agency's email
screening systems as spam, the sources said.
Around
the same time, two information management employees inside State began
raising concerns that material in Clinton's personal email server likely
contained government records that needed to be preserved under the
Federal Records Act.
One raised the concern to a supervisor at a staff meeting but was scolded and eventually told never to raise the issue of Secretary Clinton's personal email account again, according to the sources.
One raised the concern to a supervisor at a staff meeting but was scolded and eventually told never to raise the issue of Secretary Clinton's personal email account again, according to the sources.
Agents
also found evidence Mrs. Clinton herself was acutely aware of the
security and legal dangers of using her private Blackberry to conduct
government business. For instance:
-In 2009, Mrs. Clinton and her chief of staff were briefed in a classified memo from the Assistant Secratary for Diplomatic Security on the security dangers of private Blackberry service and the secretary of state responded to that official a few days later that she "gets it."
-In 2009, Mrs. Clinton and her chief of staff were briefed in a classified memo from the Assistant Secratary for Diplomatic Security on the security dangers of private Blackberry service and the secretary of state responded to that official a few days later that she "gets it."
-Mrs.
Clinton received a second classified email in March 2011 about foreign
government hacking attempts specifically aimed at State Department
officials. The memo included this warning: "We also urge Department
users to minimize the use of personal Web email for business" citing
evidence of "compromised home systems." A version of that briefing was
found in Mrs. Clinton's personal files at State.
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-In
June 2011, a cable entitled "securing personal email accounts" was sent
to all U.S. diplomatic posts worldwide under Clinton's own name that
highlighted growing cybersecurity threats and specifically warned "to
avoid conducting official department business from your personal email
accounts."
-By that time, officials maintaining Mrs. Clinton's private email server had detected attempts to hack into it but still she persisted in using the private email to conduct government business.
-By that time, officials maintaining Mrs. Clinton's private email server had detected attempts to hack into it but still she persisted in using the private email to conduct government business.
Agents
also found evidence hinting at a possible motive for Clinton's team to
maintain a private email server: a fear records could be obtained by the
public via FOIA if they were moved to a government system.
In
2011, shortly after the information management staff raised concerns
about her private email, Clinton's top aides discussed replacing her
private Blackberry with a government-owned device, but that idea was
scrapped after a top aide warned the materials on the government
Blackberry would be subject to FOIA.
"You should be aware that any email would go through the Department's infrastructure and be subject to FOIA searches," a top State official warned.
The government Blackberry was never issued.
"You should be aware that any email would go through the Department's infrastructure and be subject to FOIA searches," a top State official warned.
The government Blackberry was never issued.
When Mills, Clinton's former chief of staff, was recently deposed in a civil lawsuit over FOIA practices brought by the watchdog group Judicial Watch, she admitted that State Department FOIA officers would not have had access to Mrs. Clinton's private email to search for responsive records.
We are probably seeing more of Secretary Clinton's emails now than we would have if they had actually been stored at State Department...— Patrice McDermott
"No
is the answer," Mills testified. "I don't think I reflected on were
there occasions where there might still be something with respect to a
personal e-mail where someone had either emailed me or I had responded
back or the system had been down and we ultimately needed to use it,
that there was information that hadn't been captured. And I wish it
had."
But
it's not just the State Department. Experts say the federal government
as a whole has a serious problem when it comes to maintaining electronic
records.
Patrice McDermott, executive director of the non-partisan OpentheGovernment.org, told Circa that federal agencies have largely failed to preserve electronic records since the government switched to emails in the 1980s. That's nearly four decades of records that, for the most part, haven't been fully archived.
Patrice McDermott, executive director of the non-partisan OpentheGovernment.org, told Circa that federal agencies have largely failed to preserve electronic records since the government switched to emails in the 1980s. That's nearly four decades of records that, for the most part, haven't been fully archived.
Regret
for lost government records isn't new to the Clinton political machine.
Both Mills and Mrs. Clinton were mentioned in a lawsuit in the late
1990s during Bill Clinton's presidency over the loss of more than 1
million White House emails that were not saved for FOIA, congressional
or criminal investigations.
The Clinton White House blamed a technical error for the loss of the records.
The Clinton White House blamed a technical error for the loss of the records.
But
subsequent litigation by the Judicial Watch group found evidence that a
White House official disabled the archiving function for White House
emails.
A federal judge sharply criticized the Clinton White House for what he called a "fiasco" and singled out Mills, who had been a deputy White House counsel for Bill Clinton, for having "failed miserably" to resolve the problem or give the court accurate information.
A federal judge sharply criticized the Clinton White House for what he called a "fiasco" and singled out Mills, who had been a deputy White House counsel for Bill Clinton, for having "failed miserably" to resolve the problem or give the court accurate information.
In
another embarrassment, Sandy Berger, President Clinton's national
security adviser and a longtime confidant of both Bill and Hillary
Clinton, was caught a decade ago trying to secret classified information
about terrorism out of the National Archives in his socks.
He pleaded guilty and apologized. Berger died last December after a brief illness.
He pleaded guilty and apologized. Berger died last December after a brief illness.
But
Republicans have had their fair share of records act violations too.
Most famously in the late 1980s, Fawn Hall, secretary to Marine Corps
Lt. Col. Oliver North -- one of President Ronald Reagan's national
security advisers -- smuggled documents related to the Iran-Contra
affair out of the White House in her boots and shredded them.
And Clinton is not even the first secretary of state to use a private email account. George W. Bush's secretary Colin Powell had one too.
And Clinton is not even the first secretary of state to use a private email account. George W. Bush's secretary Colin Powell had one too.
Whether
Secretary Clinton's deleted her emails with the intention of evading
records laws or not, the FBI and other experts agree conducting
government business on a private email account was reckless.
"It was irresponsible of state to let her do it," McDermott said. "I know it's difficult to manage the head of your agency and tell her she can't do something. But, the attorneys should have told her she can't do this."
"It was irresponsible of state to let her do it," McDermott said. "I know it's difficult to manage the head of your agency and tell her she can't do something. But, the attorneys should have told her she can't do this."
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