Politics & Policy

The FBI and Justice Department Let the Clinton Camp Hold on to Classified E-mails

(Joe Raedle/Getty)

When a bank gets robbed, is it now the Justice Department’s practice to let the suspect hold on to the money while the FBI does its investigation?

According to the Washington Examiner, the Justice Department has still not seized the Clinton server and at least one thumb-drive copy of its contents even though government officials have conceded that national-defense secrets are stored on them. Former secretary of state Clinton apparently still has the server, while the thumb drive is reportedly in the possession of her private lawyer, David Kendall.

Remarkably, although these private parties are being permitted to maintain custody of classified information, the State Department has denied the intelligence community’s inspector general access to Mrs. Clinton’s e-mails — at least, the 30,000 or so she finally deigned to surrender.

A State Department flack cited “jurisdictional grounds” as the rationale for refusing to hand the e-mails over to the intel IG. Perish the thought that it might have anything to do with the fact that, last month, the IG found classified information on 10 percent of the small sample he was permitted to examine — four out of 40.

Realize how cynical this is: While candidate Hillary Clinton, who unilaterally destroyed over 30,000 e-mails precisely so no one could see what was in them, runs around the country telling voters she desperately wants the State Department to make her e-mails available to the public, the State Department won’t even allow an investigator for government intelligence services to see them. After all, if the IG were allowed to investigate, the public might learn exactly how many national-defense secrets Clinton was storing on her private email system and discussing in her correspondence over that system. Can’t have that.

RELATED: Hillary’s E-mails Contained Classified Information — Hold Her Accountable

As I wrote yesterday, this whole farce, rather than getting to the bottom of the scandal, is becoming a Clintonian exercise in shaping public perception. And it’s working. For example, the Examiner report asserts that “two inspector generals had asked the Justice Department to look into whether classified information was mishandled on the server — which would be a violation of federal law.” Well, yes . . . but that skips over a fairly huge problem: Classified information is not supposed to be on the server in the first place. Since it is on the server, it has already been mishandled.

Any experienced investigator will tell you that whether the probe is about how and why classified information is on the server, or about how classified information was handled (or mishandled) once it got on the server, the obvious thing needed in order to conduct a competent investigation is . . . the server.

RELATED: Has the Justice Department Seized Hillary’s Server? If Not, Why Not?

There are usually things going on in an investigation that are not reported (because they are not known to, or can’t be confirmed by, the press). Thus, we cannot say with certainty that the Clinton camp has not quietly surrendered the server to the FBI; we can only say that there is no indication that that has happened — all indications, including what we’ve heard from Congress, are to the contrary. But there seems to be little discussion of this in the media.

The government would maximally ensure the retrieval and retention of the nation’s secrets and the public’s records by taking custody of the server.

From an investigative standpoint, the need to seize the physical server is obvious. The same is true from a public-interest standpoint: (a) there should not be national-defense information on a non-government system; and (b) the records pertaining to Mrs. Clinton’s State Department tenure belong to the public and therefore should be in the government’s file — they do not belong to Mrs. Clinton for her personal safekeeping. The government would maximally ensure the retrieval and retention of the nation’s secrets and the public’s records by taking custody of the server.

What is not obvious is why Mrs. Clinton’s attorney, Mr. Kendall, has been permitted to keep a thumb drive known to contain classified information. On this, we get more misdirection: The State Department, according to the Examiner, assures us that “the FBI has visited Kendall’s office to ensure the documents are being kept in a secure location”; and, State emphasizes, “Kendall has a security clearance.”

Come again?

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It is well and good that Mr. Kendall’s office has facilities deemed secure by the FBI. It is also fine that he has a security clearance. In many situations, there must be private lawyers who have security clearances and access to secure facilities for reviewing national-defense secrets. If, for example, a criminal case involves classified information (e.g., a terrorism or espionage case), we must have trustworthy defense lawyers to whom classified discovery and evidence can be disclosed — lawyers with security clearances.

But that does not change Rule One of classified information: It is available only on a need to know basis, even to people with clearances. As a prosecutor, I had a very high-level clearance when I handled national-security cases. That did not mean I could be turned loose at Langley or Foggy Bottom to poke around in any classified files that piqued my interest. My access was strictly limited to what I needed to know in order to execute my narrow responsibilities, and nothing more.

RELATED: Why a Criminal Investigation of Hillary Clinton Might Not Happen

Mr. Kendall has no need to know or have access to the extensive range of national-defense information to which Mrs. Clinton had access as secretary of state — one of the highest-ranking offices of the United States. And that information does not belong at his law firm, no matter how secure the facilities are. It was recklessly irresponsible for Mrs. Clinton to store that information on her private server in the first place; she had no business privately holding documents that should not have been out of government custody, and she had even less business transmitting them to Mr. Kendall.

#related#Note here that the Clinton camp matter-of-factly explains that Mrs. Clinton’s lawyer is a necessary player here because she needed his counsel in determining what e-mails should be provided to the government at the State Department’s request. This conveniently overlooks what Shannen Coffin has explained here at National Review: It was a violation of government guidelines (and very likely, of federal law) for Mrs. Clinton and her closest aides to have systematically conducted government business on a private e-mail system. That is, Mrs. Clinton needed a review process to determine what privately held documents to turn over to the government only because she was improperly holding them privately. They should have been in the government’s possession all along.

It should never be forgotten, no matter how much Democrats and their friendly media prefer to forget it, that the criminal investigation regarding Mrs. Clinton’s handling of classified information is occurring within the broader context of indefensible misconduct. Mrs. Clinton’s maintenance of a private communications system was plainly designed to defeat government record-preservation requirements, Freedom of Information Act disclosure requirements, and congressional investigations.

That means the Justice Department and the FBI owe her less deference, not more.

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