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During a Democratic debate in October, Vermont Sen. Bernie Sanders said that the American people were “sick and tired of hearing about Hillary Clinton’s damn emails.” That did a lot to diffuse a story that had plagued the former Secretary of State throughout the summer. But the ongoing FBI investigation into her handling of classified information and the use of her private email server located in the basement of her New York residence has never disappeared, even if it has receded into the background. This weekend, the Washington Post and the Los Angeles Times each published stories highlighting the latest developments in the case.
Whether or not Clinton and her senior aides face criminal charges, the stories demonstrate that the allegations that began nearly a year ago will continue to present a serious problem for the Democratic front-runner. As the Washington Post explains: “From the earliest days, Clinton aides and senior officials focused intently on accommodating the secretary’s desire to use her private email account, documents and interviews show…Throughout, they paid insufficient attention to laws and regulations governing the handling of classified material and the preservation of government records, interviews and documents show. They also neglected repeated warnings about the security of the BlackBerry while Clinton and her closest aides took obvious security risks in using the basement server.”
Here are some key takeaways from the newest reports:
Clinton’s closes aides will soon be asked to meet with FBI investigators: According to the LA Times, a federal prosecutor has contacted the attorneys for Clinton aides to try and set up interviews. The story didn’t specify which lawyers had been contacted, but it did note that the attorneys for longtime aides Huma Abedin, Cheryl Mills, Jake Sullivan, and Philippe Reines did not respond or declined to comment when contacted by reporters. Federal prosecutors have already granted immunity to Bryan Pagliano—the Clinton aide who set up the private email server and maintained it—after Pagliano told a Congressional panel in September that he would invoke his Fifth Amendment right against self-incrimination. According to the LA Times, prosecutors will try to set up a meeting with Clinton as well. Brian Fallon, a spokesman for the Clinton campaign, said that Clinton is ready to work with the investigators and has offered to meet with them since last August.
The FBI has devoted extensive resources to this investigation: The Post story states that 147 FBI agents have “been deployed” to help work the case (although it’s unclear if that means 147 have worked the case full time or that 147 agents have worked it at one time or another) but after the story was published that number has been challenged. “The FBI has accelerated the investigation because officials want to avoid the possibility of announcing any action too close to the election,” the Post wrote.
Clinton was warned about her BlackBerry phone by government security officials and continued to use it: One of the key issues in this saga is that Clinton and her aides didn’t want her to have to give up her BlackBerry because, “as a political heavyweight and chief of the nation’s diplomatic corps, she needed to manage a torrent of email to stay connected to colleagues, friends and supporters,” writes the Post. “She hated having to put her BlackBerry into a lockbox before going into her own office” which was in a secure area of the State Department known as ‘Mahogany Row.’
Clinton’s staff and the State Department’s security officials tried to work out a solution, but the security officials weren’t convinced they could provide her a BlackBerry that she could use in her office securely. According to the Post, Clinton never had a government BlackBerry, personal computer, or email account. The story describes how “the State Department security officials were distressed about the possibility that Clinton’s BlackBerry could be compromised and used for eavesdropping,” and wrote a memo outlining the range of risks, including the likelihood that Clinton’s use of her phone would lead other employees to do the same.
That worry triggered a memo from Assistant Secretary for Diplomatic Security Eric Boswell “with the subject line ‘Use of Blackberries in Mahogany Row.’” Boswell wrote: “Our review reaffirms our belief that the vulnerabilities and risks associated with the use of Blackberries in the Mahogany Row redacted considerably outweigh the convenience their use can add” because these devices are “highly vulnerable in any setting to remotely and covertly monitoring conversations, retrieving e-mails, and exploiting calendars.” According to the Post, nine days after Boswell’s memo, Clinton wrote him saying she understood the importance of what he was describing, especially “the sentence that indicates (Diplomatic Security) have intelligence concerning this vulnerability during her recent trip to Asia.”
Clinton’s server might have been operating for at least two months without standard encryption, among other security issues: Neither story published this weekend proves that Clinton’s email server was hacked. But the Post does note that for two months the server operated without basic Internet encryption, at least according to an analysis performed by an outside cybersecurity firm (the server might have had other encryption measures employed). Emails or any other data passing through the server was doing so in plain text, which means they could be read by anyone who intercepted them. Additionally, the server included features that “made it vulnerable to talented hackers, including a software program that enabled users to log on directly from the World Wide Web,” according to the Post.
The Clinton campaign told the Post that the security of the server “was taken seriously from the onset” and that “robust protections” were in place.
The private server was also controversial because Clinton and her lawyers tried to “wipe” it before turning it over to the FBI, forcing the agency to employ forensic techniques to retrieve the data. The Times writes that the FBI has recovered “most, if not all” of the emails that Clinton and her lawyers deleted from the server before turning it over to the FBI in August.
Despite concerns raised by government security officials at the time, and independent experts consulted for these stories, the chances of criminal charges are slim: Even with all the concerns about the security of the server and her use of a private account, prosecutors would have to prove that Clinton and her aides knowingly mishandled classified information and shared it with people who weren’t cleared to see it, “a high hurdle in the Clinton case,” according to the Post. Comparisons have been made to the cases against Gen. David Petraeus—who shared classified information with his mistress and then lied to FBI investigators about it—and the late Sandy Berger, a national security adviser for President Bill Clinton who was caught trying to smuggle classified documents from the National Archives in his pants.
Clinton’s case is not nearly as serious as Petraeus’, according to the Times, nor as blatant as Berger’s. “Those cases are just so different from what Clinton is accused of doing,” Stephen Vladeck, a law professor at American University, told the Times. “And the Justice Department lawyers know it.”