Hillary Clinton’s Emails: A Legal Assessment of the Facts So Far

Photo courtesy of Pixabay
Photo courtesy of Pixabay


By Drew Rummel, Staff Writer

If you remember anything you have heard recently about Hillary Clinton, it is most likely something that has to do with her emails. We have heard all kinds of biased statements from various mainstream media outlets. We have heard the Donald Trump campaign repeatedly attack Clinton over the emails. We have heard the Clinton campaign repeatedly deny any wrongdoing. Biases and policy views aside, we need to consider the true legalities behind this situation, regardless of who we intend to vote for on Nov. 8.

Clinton served as the United States Secretary of State under President Barack Obama from Jan. 21, 2009, until Feb. 1, 2013.[1] She maintained multiple personal email servers administered by multiple people, in addition to using several electronic devices during this time.[3]

The “top secret” classification is applied to information in which the unauthorized disclosure would reasonably be expected to cause exceptionally grave damage to national security.[2] The “secret” classification is applied to information in which the unauthorized disclosure would reasonably be expected to cause serious damage to national security.[2] The “confidential” classification is applied to information that could reasonably cause damage to national security.[2]

When the FBI began its investigation, Clinton relinquished approximately 30,000 emails that were sent or received during her time as Secretary of State.[3] Of these 30,000 emails, the FBI discovered that 110 emails in 52 email chains were classified at the time they were sent or received, verified by the owning agency of each email.[3] Of these 52 email chains, at the time the emails were sent or received, eight were classified as “top secret,” 36 were classified as “secret,” and eight were classified as “confidential.”[3]

Some were specifically designated as classified, which Clinton would have known at the time of their transmission.[3] There have been thousands of other emails found that were not produced by Clinton.[3] Of those other emails, three of them were found to have been classified at the time they were sent or received.[3] The FBI also found that there are likely other work-related emails that were not turned over for investigation and that it was unable to find because they had been deleted.[3] FBI Director James Comey’s report mentioned several times that they did not find evidence of intentional wrongdoing by any party involved, but otherwise did not specify why they determined their investigation was complete.[3]

At the time that the original investigation concluded, the FBI found evidence that Clinton and her colleagues were “extremely careless” in their handling of very sensitive, highly classified information.[3] Comey further said that “[t]here is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in a 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.”[3] Further, he said that none of these emails should have been on any kind of unclassified system.[3]

The FBI also found that there were attempts by hackers to gain access to these servers.3 While the Bureau had no evidence that the servers were hacked, Comey said that it would be unlikely to find direct evidence of any hacks.[3] That means if her servers were hacked, no one would know.

So, which law or laws did Clinton possibly break? There are two federal statutes dealing with the handling of classified information. One federal statute provides the following:

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, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of his trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—

Shall be fined under this title or imprisoned not more than ten years, or both.[4]

In lay terms, the criminal statute says that anyone entrusted with classified information who negligently or knowingly allows the information to possibly be acquired is guilty of a felony.

Another federal statutes provides:

Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information—

(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or
(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or
(3) concerning the communication intelligence activities of the United States or any foreign government; or
(4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes—

Shall be fined under this title or imprisoned not more than ten years, or both.[5]

In lay terms, the statute says that whenever someone uses classified information in a manner that could be detrimental to the U.S., they are guilty of a felony.

There have been others who have been convicted under similar circumstances. Petty Officer Kristian Saucier was convicted and sentenced to jail for taking and possessing six photographs on his personal cellphone of the inside of a navy submarine, which were deemed to be “confidential.”[6] A navy engineer, Bryan Nishimura, removed and retained classified materials during deployment in Afghanistan.[7] Nishimura was sentenced to two years of probation (after a guilty plea), fined $7,500, and was forced to surrender his security clearance.[7]

The FBI, after the initial investigation, ultimately recommended that no charges be filed against Clinton. Its recommendation, however, only addressed the lack of intent and willfulness of Clinton and her administration. Comey’s initial report did not touch on the gross negligence that might have occurred, as well as how detrimental her actions were to the U.S., which should be left to a trier of fact.

The FBI has since reopened its investigation. In an unrelated matter, the FBI discovered over 1,000 work-related emails on a laptop shared by former Clinton aide Huma Abedin and her husband, former New York democratic representative Anthony Weiner.[8] The nature and author of these emails are what prompted further investigation.[8] The FBI is diligently looking for relevant evidence of negligence, but it is not exactly sure where or how they might find it.

Comey notified Congress that the investigation was reopened, which has sparked much debate, especially given that the election is a few days away. The Clinton campaign has publically requested that the FBI release any information that it may have.[8] Others on the Democratic side of the aisle, after praising Comey for closing the initial investigation, have now criticized him for reopening it.[9] Not unexpectedly, the Trump campaign is praising the reopening. “What happened today,” Trump said, “starting with the FBI, maybe the system will become a little less rigged. Beautiful.”[10]

Comey has continued to receive criticism from Clinton supporters over the timing of this reopened investigation and its proximity to Election Day.[11] It is important to note, however, that the FBI is also investigating Trump, his campaign, and his backers for alleged ties to Russia.[11] The Russian government has been accused of orchestrating hacks on Democrats and releasing sensitive information, though the U.S. government has not claimed Russia has intended to “swing the election in a particular direction.”[11]

Thus far, the FBI has not found anything to substantiate related criminal allegations against those affiliated with or in support of Trump’s campaign.[11­­] What we do know is that WikiLeaks has disseminated hacked emails and information for several weeks, including from the private email account of John Podesta, Clinton’s campaign chairman.[11]

The FBI has stated that it does not have any political motives behind either of these investigations.[12] Nevertheless, it cannot be denied that these investigations — particularly the Clinton investigation — have played an unusually prominent role in a presidential election, with matters now centered on the handling or release of sensitive information just a week before Election Day. Regardless of political leanings, many would like this all to be sorted out before Nov. 8. But as there is no announced timeframe for the FBI to conclude its investigations, that is probably not possible.[12]



[1] “FBI Records: The Vault, Hillary R. Clinton,” https://vault.fbi.gov/hillary-r.-clinton.

[2] Chapter 7. Classification Levels, http://www.fas.org/sgp/library/quist2/chap_7.html.

[3] “Statement by FBI Director James B. Comey on the Investigation of Secretary Hillary Clinton’s Use of a Personal E-Mail System,” https://www.fbi.gov/news/pressrel/press-releases/statement-by-fbi-director-james-b-comey-on-the-investigation-of-secretary-hillary-clinton2019s-use-of-a-personal-e-mail-system.

[4] 18 U.S.C.S. § 793 (LexisNexis, Lexis Advance through PL 114-244, approved 10/14/16)

[5] 18 U.S.C.S. § 798 (LexisNexis, Lexis Advance through PL 114-244, approved 10/14/16)

[6] “Judge unconvinced by ‘Clinton defense’ in Navy machinist’s sentencing over classified sub photos,” http://www.washingtontimes.com/news/2016/aug/20/navy-machinist-kristian-saucier-sentenced-over-cla/.

[7] “10 Times People Were Punished for Far Less Than What Hillary Clinton Did,” http://www.thepoliticalinsider.com/hillary-clinton-email-10-punished-less/.

[8] Sources reveal new details about reopened Hillary Clinton email investigation, http://www.cbsnews.com/news/sources-reveal-new-details-reopened-hillary-clinton-email-investigation/.

[9] “Democrats turn on Comey after he reopens Clinton email wound,” http://www.politico.com/story/2016/10/hilary-clinton-fbi-democrats-230473.

[10] “Trump reinvigorated by FBI Clinton probe,” http://www.cnn.com/2016/10/28/politics/donald-trump-reacts-to-fbi-clinton-probe/.

[11] “FBI investigations into Trump-Russia ties yield little,” http://www.cnn.com/2016/11/01/politics/donald-trump-russia-fbi-investigations/index.html.

[12] “The FBI keeps showing up in this election,” http://www.cnn.com/2016/11/01/politics/fbi-comey-election-2016-clinton-trump/index.html.

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