FBI Should Not Be ‘Investigating Security’ of Clinton Server — It Should Be Seizing Clinton Server

Politico’s Josh Gerstein reports that the FBI is “investigating the security of classified emails formerly stored on Hillary Clinton’s private server,” which now are apparently also “maintained on a thumb drive by Clinton’s personal attorney, David Kendall.”

The issue, however, is not whether Mrs. Clinton made good security arrangements for her private system, or whether the private thumb-drive Mr. Kendall is reportedly maintaining is secure. The issue is whether the Clinton server system or Kendall’s law firm are authorized government storage facilities for national defense information. Obviously, they are not; if the government had authorized them as storage facilities, there would be no reason for the FBI to be investigating their security precautions.

Thus, the FBI should not be “investigating the security” of the private systems involved. Private persons and current or former government officials do not get to make whatever arrangements they subjectively deem “secure” for the purpose of storing and transmitting government information. They are required to use the government’s systems. As I argued in Tuesday’s column, the Justice Department should be demanding the surrender of the server – and of any copies of information from the server that has been loaded onto a thumb-drive or other medium. If a voluntary surrender is not forthcoming, the Justice Department should issue a grand jury subpoena compelling production forthwith, or government lawyers should be in court seeking a search warrant to seize these items.

This should not be controversial. It would not be controversial if anyone other than Mrs. Clinton were involved. It is very simple: (a) the “hard” (paper) copies of emails Mrs. Clinton (finally) surrendered to the State Department were downloaded from her server; (b) we now know for certain that information in those emails is classified (regardless of whether it was classified when the emails were written); and (c) Mrs. Clinton still has the server.

Government officials, former government officials, and private persons are not permitted to keep national defense information in private, unauthorized facilities. And they are required to return that information on demand. If they negligently lose or destroy information that should not have been stored in private, unauthorized facilities, that can be a crime. And if they attempt to delete or destroy information they have reason to know is relevant to official investigations (or that they have been instructed to preserve because it may be relevant to an official investigation), that can be the crime of obstruction of justice or obstruction of a congressional investigation.

Significantly at this stage, the FBI and, more broadly, the Justice Department do not need to prove crimes beyond a reasonable doubt in compel the production of relevant evidence. This is a preliminary stage, so we are only talking about investigation not liability.

There is abundant basis to suspect that laws have been broken here. Even if laws arguably have not been broken, national defense information has been mishandled, and there is good reason to believe it is still being mishandled (i.e., it remains stored and retrievable in an unauthorized facility). The Justice Department should thus be demanding the surrender of the server(s) and any copies forthwith, and seeking court intervention if the Clinton camp declines to cooperate.

It is obviously in the public interest not just to investigate whether laws have been broken but to ensure that government national defense information is not being stored, even inadvertently, in private facilities. The provisions made to secure those private facilities are not unimportant, but they are beside the point right now.