Law & the Courts

As the FBI Seizes Clinton’s Server, Her E-mail Scandal Enters a More Serious Phase

(Photo Illustration: NRO; Clinton: Andrew Burton/Getty)

Hillary Clinton’s private e-mail server, maintained in her Chappaqua, N.Y., home, has finally been taken by the FBI, five months after it emerged that, as secretary of state, she used it systematically to conduct government business. The seizure of the server, along with electronic copies of its contents maintained by her private lawyer, is in connection with a criminal investigation into the mishandling of classified information. It is being dressed up by a reeling Clinton campaign as Hillary’s “voluntary”​ surrender of the server in connection with a “security inquiry.”

All we can say is, “It’s about time.”

It has been obvious since March both that the server should have been seized by the government and that Clinton’s extra-governmental communications system — designed to undermine record-keeping requirements that enable government to make disclosures in response to congressional, judicial, criminal, and public requests — is a major national-security breakdown.

Clinton held one of the highest offices of the United States, and communications involving high-level intelligence were a routine part of her job. Despite her protestations to the contrary, it was inevitable that classified information would be exchanged in her “private” e-mails and stored on her “private server.”

RELATED: Is Hillary Above the Law?

What was inevitable is now undeniable. Inspectors general from both the intelligence community and the State Department have reported to Congress that Clinton’s e-mails contain classified information. And remember, they have been able to review only portions of the 30,000-odd e-mails Clinton deigned to surrender (in paper-copy form) on the State Department’s demand, two years after she departed.

There has been no accounting of the 30,000-plus e-mails Clinton claims to have destroyed. Her private attorney claims that those e-mails were “private” and that they no longer exist because the server has purportedly been erased. The government’s belated seizure of the server means both those claims can now be tested.

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

Weeks ago, we learned that when just a small sample of the e-mails Clinton did disclose was examined by the intelligence community’s IG, 10 percent (four out of 40) contained classified information. Two contained classified State Department information. Two others contained information that was “top secret” at the time the e-mails were sent. Information is classified as top secret only when its disclosure is likely to result in provable and “exceptionally grave damage” to national security. Further, the information was also classified as “sensitive compartmentalized information.” That means it is to be handled with the strictest standards of confidentiality in only secure facilities to protect intelligence sources and methods. 

Thus, other than the fact that this brings the political hot water that Clinton is in to a boil, it is difficult to fathom why the Justice Department and the FBI have been so hesitant to take possession of the server and any backup copies of its contents.

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The State Department has estimated that hundreds of Clinton e-mails may contain classified information. Indeed, though a federal court has ordered disclosure of Clinton e-mails in a Freedom of Information Act case, the Justice Department has just told the judge that production has been delayed because of concerns over the breadth of sensitive information in the e-mails. The intelligence community is said to be conducting a careful review of them — years after the fact because Clinton kept them out of government files.

With her lax handling of our most sensitive national-security information, Clinton all but served it to foreign intelligence services on a platter. Simultaneously, she kept pertinent information away from public view and from congressional investigators probing matters like the killing of four Americans in Benghazi.

RELATED: Criminal or Not, Hillary Clinton’s E-mails Are a National-Security Risk

This could have serious repercussions for Clinton and her closest aides, former chief of staff Cheryl Mills and deputy chief of staff Huma Abedin. The latter, Clinton’s closest confidant, also had a “clintonemail.com” address through which she conducted high-level government business. Mills and Abedin, like Clinton, have lawyered up. Similar investigations into the potential mishandling and improper sharing of classified material have led to criminal investigations against former CIA directors David Petraeus and John Deutch — with the former eventually pleading guilty to misdemeanor charges in a case that involved far less classified information than Clinton’s, and the latter given a midnight pardon by Mrs. Clinton’s husband, President Bill Clinton, as he left the Oval Office.

#related#Clinton partisans are resorting to their too-familiar strategy: pound away at their talking points and exhaust the public with legalese and Orwellian parsing. Yet, their main contention — namely, that the information was not classified at the time Clinton exchanged the e-mails — has already been refuted in a statement by the intelligence community’s IG. And again, that is based on just a tiny sample.

The Clinton defense, moreover, is a red herring: As any public official with a security clearance knows, it is the information one learns in classified documents and briefings that must be protected. The issue is not whether Clinton’s e-mails were stamped “top secret” before she sent them; it is whether the information in the e-mails was of a sensitive nature and therefore, as Clinton knew, needed to be vetted before being stored or sent on a non-government communications system.

For Hillary Clinton and her top aides, the pressing issue is that their e-mail scandal has entered a new and much more serious phase. For the American people, however, the pressing issue is not Clinton’s potential criminal liability. It is whether we can trust a presidential candidate who flouts our laws and is cavalier about our defense secrets.

The question answers itself.

The Editors comprise the senior editorial staff of the National Review magazine and website.

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