Should There Be a Criminal Investigation Into Hillary Clinton's Email?

The request for a formal probe highlights the deep dysfunction of America’s system for classifying documents and prosecuting leaks.

Chris Keane / Reuters

This story was updated.

Federal overseers are urging an inquiry into whether Hillary Clinton illegally mishandled classified documents during her four-year tenure as secretary of state, according to an article published late Thursday in The New York Times. At issue is her decision to conduct official business via private email. “Two inspectors general have asked the Justice Department to open a criminal investigation into whether sensitive government information was mishandled,” the story reported. “The Justice Department has not decided if it will open an investigation.”

The New York Times has since updated its story, characterizing the requested probe as a look at whether emails on Clinton's private server were mishandled rather than whether Clinton mishandled emails. It is not clear who else would be responsible for those emails.

The Wall Street Journal adds that it has seen a memorandum from both inspectors general declaring that an investigation of emails stored on a server at Clinton’s home discovered “hundreds of potentially classified emails within the collection.” Clinton had previously destroyed thousands more emails, but has denied mishandling any classified material in the course of using that private account.

Attorney General Loretta E. Lynch, who was recently appointed by President Obama, must now decide whether to launch an investigation involving the most powerful politician in the Democratic Party, potentially changing the course of an election; or to reject the advice of two ostensibly independent overseers and appear to give special treatment to a powerful Obama administration veteran, protecting her from scrutiny as she stands accused of compromising national security.

The New York Times stands by its characterization of the requested investigation as a criminal probe, while the Los Angeles Times reports, "Government officials initially characterized the referral as involving a potential criminal investigation. The Justice Department now says it was not criminal." Whether the inspectors general technically asked for a criminal investigation or some other kind––as now appears to be the case––keeping classified information unsecured at one's house is illegal, as Thomas Drake and others know all too well, so any investigation could expose illegal behavior, which perhaps explains the discrepancy in characterizations.

Observers are left pondering these possibilities:

  • Hillary Clinton never knowingly stored any classified documents on her home server, and is the victim of circumstantial evidence that looks worse than it is.
  • Clinton technically did have some classified documents on her server, but nothing that actually ever posed any real threat to American national security, because the federal bureaucracy needlessly classifies all sorts of stuff.
  • Clinton irresponsibly kept documents on her server that did pose a risk to national security.

There’s a strong possibility that we’ll never know which scenario comes closest to the truth. But whatever happens in coming days and months, this incident will highlight the way in which America’s classification system undermines the rule of law.

The “state secrets” laws in question are applied with extreme unevenness and unpredictability.

Mishandling or leaking classified information can carry heavy criminal sanctions, regardless of whether the material was properly classified, serves any public interest, or poses any real threat to national security. Yet despite the potential for serious criminal liability, powerful officials mishandle or leak classified information with impunity, because their leaks serve the interests of others in power.

Every so often, circumstances align so that a powerful member of the establishment like David Petraeus is subject to punishment––elites can’t be so flagrant as to get caught leaking to a mistress!––but critics of the establishment are more likely to be punished (and punished harshly) for crimes related to state secrets.

For leaking classified information about serious government misdeeds that Americans absolutely ought to know about, Chelsea Manning is caged and Edward Snowden is living in exile under constant threat of spending the rest of his life in jail. The Obama Administration has also waged a war on whistleblowers like Thomas Drake, raiding his home, carrying off boxes of documents from his basement, finding a few allegedly classified documents (that were more secure than they likely would’ve been on an email server), and threatening to destroy his life over them.

He wasn’t alone.

“After I blew the whistle on the CIA's waterboarding torture program in 2007,” former CIA agent John Kiriakou wrote, “I was the subject of a years-long FBI investigation. The Justice Department charged me with ‘disclosing classified information to journalists, including the name of a covert CIA officer and information revealing the role of another CIA employee in classified activities.’ I had revealed no more than others who were never charged, about activities—that the CIA had a program to kill or capture Al Qaeda members—that were hardly secret. Eventually the espionage charges were dropped and I pleaded guilty to a lesser charge: confirming the name of a former CIA colleague, a name that was never made public.”

He got two and half years in prison.

Meanwhile, “Former CIA Director Leon Panetta revealed the name of the Navy SEAL unit that carried out the Osama bin Laden raid and named the unit’s ground commander at a 2011 ceremony attended by ‘Zero Dark Thirty’ filmmaker Mark Boal. Panetta also discussed classified information designated as ‘top secret’ and ‘secret’ during his presentation at the awards ceremony, according to a draft Pentagon inspector general’s report published Wednesday by the Project on Government Oversight.” He said he didn’t realize the filmmaker was present and was not punished.

Then there’s John Brennan.

“In 2012,” Jack Shafer wrote, “then-national security adviser John Brennan went a tad too far counter-leaking in his attempt to nullify an Associated Press report about the foiled underwear bomber plot. In a conference call with TV news pundits, Brennan offered that the plot could never succeed because the United States had ‘inside control’ of it, which helped expose a double-agent working for Western intelligence. Instead of being prosecuted for leaking sensitive, classified intelligence, Brennan was promoted to director of the CIA; that’s the privilege of the policy leak.”

If Hillary Clinton did knowingly keep classified documents on her home server, or stored them there unwittingly but negligently, it was presumably with confidence that her fate would be more like Brennan or Panetta than Drake or Kiriakou. After all, she was well aware of what happened to Sandy Berger when he mishandled classified documents. One of Bill Clinton’s most influential foreign policy advisors, he walked into the National Archives and willfully absconded with sensitive documents so that he could destroy them for unknown reasons.

Even caught red-handed, he only got a slap on the wrist.

If Clinton is innocent, laws surrounding classified documents are once again victimizing an undeserving target; if she is guilty, then either she will be spared the fate of the less powerful by virtue of her connections, or she will be tried and jailed on the cusp of a presidential campaign, a punishment so out of proportion to anything others like her usually face as to make one wonder about a vast right-wing conspiracy.

Whatever the endgame of this legal matter, changing the underlying laws is long overdue. Outcomes would be less uneven and capricious if being charged criminally for mishandling state secrets required a review of whether the secrets were properly classified, evidence of willful misbehavior, and plausible harm to national security. Without such reforms, these laws will continue to be abused with impunity.