A spokesman for former Secretary of State Hillary Clinton says that she has directed her staff to turn over the personal server through which she ran all of her work-related emails to the FBI and the U.S. Justice Department, as well as a thumb-drive, that have been in the possession of her lawyer, although they are apparently “still negotiating” the turnover.
For months, according to an Associated Press report, “Clinton refused calls to give up the home-brew email server she used in her suburban New York City home to send and store email through a private account.”
The moment it became public last March that Clinton used personal email the entire time she was serving as the head of the State Department, the Justice Department and the FBI should have moved immediately to seize the server for a whole host of reasons.
Those reasons range from the possible violation of various federal rules and regulations governing the handling and preservation of government communications like the Federal Records Act and the Freedom of Information Act, to the obvious problems that could arise from highly sensitive and classified information being stored and transmitted on a non-secure, private email system.
Yet neither the FBI nor the Justice Department did anything about this until the inspector general for the intelligence community sent a referral to the Justice Department over the inclusion of classified materials that it found in just a small sampling of the tens of thousands of emails sent and received by Clinton during her tenure as secretary of state.
Former Justice Department prosecutor Andy McCarthy has criticized the Department’s approach to this case, saying it was not proper for the department to allow Clinton to hold onto the server. According to the Wall Street Journal, Sen. Chuck Grassley, R-Iowa, was also critical, saying “That’s a long time for top secret classified information to be held by an unauthorized person outside of an approved, secure government facility.”
Getting copies of emails from Clinton’s lawyer is not sufficient for a security investigation, particularly in light of the fact that the House committee investigating Benghazi recently obtained copies of emails between Sidney Blumenthal and Clinton that had not been disclosed or turned over.
Not only does that allow an investigation to be limited by what may be selective bias in the emails turned over to the State Department and the Justice Department, but it does not allow for the type of forensic investigation of the server required to check its security protocols and whether there is any evidence that it was hacked.
Since Clinton has said that about 30,000 emails were deleted that she claimed were “personal,” we don’t know what an actual examination of her server will reveal, if anything.
That will depend on how professional the deletion was and whether the emails were permanently deleted from the system, making them unrecoverable.
Gathering other security information on the system will depend as well on whatever other protocols may have been applied to her server to purge or restructure the system.
Again, as McCarthy points out, “the obvious thing needed in order to conduct a competent investigation is … the server.”
The fact that we now know that emails containing classified information were on the server – information labeled as “Top Secret” according to the latest memorandum from the inspector general – means that the classified information has already been mishandled.
This is particularly important given that one of Clinton’s top aides, Huma Abedin, also apparently used the Clintonemail.com system for her communications as a State Department employee.
To date, she has not turned over copies of her communications, including in the Judicial Watch lawsuit filed against the State Department under the Freedom of Information Act to obtain copies of Clinton’s emails.
Abedin is also reportedly being investigated by the State Department inspector general in a separate investigation over the arrangement Abedin had with Clinton that allowed her to work for Clinton at the State Department even while Abedin remained employed by Teneo, a private consulting firm, and served as a consultant for the Clinton Foundation.
The bottom line is that it is vital that a thorough, competent investigation be carried out to determine if Clinton’s handling of her government communications damaged our national security and led to unauthorized parties gaining access to sensitive State Department communications and discussions in addition to classified material.
Hans von Spakovsky is an authority on a wide range of issues—including civil rights, civil justice, the First Amendment, immigration, the rule of law and government reform—as a senior legal fellow in The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies and manager of the think tank’s Election Law Reform Initiative.
Editor's Note: This piece was originally published by The Heritage Foundation.