The FBI shocked the political world on Friday by announcing that newly discovered emails have caused the bureau to renew its inquiry into Hillary Clinton’s private email server.
The Clinton campaign has for months thought the worst of the email server controversy was over. In July, to their great relief, FBI Director James Comey said that Clinton would not face criminal charges for sending emails over a private server while secretary of state.
But whatever new emails authorities have found are apparently enough to trigger a second look at whether she broke the law. Comey’s letter to Congress on Friday doesn’t say much, but it does at least suggest that the FBI is still looking into whether Clinton violated federal law by sending classified email over her private server. (Comey said the FBI had come across new emails in “an unrelated case,” and that the bureau will review them “to determine whether they contain classified information, as well as to assess their importance to our investigation” into Clinton.)
There’s a lot we don’t know yet. But, citing anonymous sources, multiple news outlets have reported that these emails are from “a device” belonging to Clinton aide Huma Abedin and her husband Anthony Weiner and were discovered via an unrelated investigation.
Of course, the new line of investigation does not necessarily mean that Clinton broke the law. With less than two weeks until the election, Comey’s letter to Congress will lead to ferocious new partisan attacks over her private server. (Donald Trump is already making them.) We have no more proof that Clinton broke the law today than we did yesterday. All we know is that Comey has new records he thinks are worthy of further investigation.
That said, it’s important to be clear about just why Clinton’s email server is now one of the biggest stories of the 2016 presidential campaign. And to understand that, you have to understand why she was under investigation in the first place.
Understanding the confusion surrounding the “Hillary Clinton email controversy”
One of the big challenges in writing about the “Hillary Clinton email controversy” is that it’s one overly broad category that’s being used to capture several distinct accusations against the Democratic presidential nominee.
The shorthand “Hillary’s emails,” though somewhat irresistible, suggests a single controversy that is somehow both monolithic and strangely sprawling. The reality is that there are actually four (or, if you include claims of a cover-up, five; or, if you include Benghazi, six) distinct controversies that involve both Clinton and email. Indeed, there are several separate groups of emails, and some of the accusations against Clinton are contradictory.
To understand what’s happening, it’s useful to split up these controversies rather than lump them together:
- One controversy related to Clinton’s emails is that she exchanged classified information over a private server that was susceptible to hacking by foreign agents. This is an issue about cybersecurity — that Clinton didn’t do enough to safeguard government secrets. This is what the FBI’s investigation is about, and what appears to be behind Comey’s new investigation. The FBI has discovered a new set of emails — apparently emerging from its separate inquiry into Anthony Weiner — that is making it look again at this question of whether Clinton broke a law.
- Another claim is that Clinton’s private server allowed her to avoid public records laws. This is a controversy related to the idea of transparency — that government officials have to keep records of their work, and that Clinton deliberately avoided doing so.
- Separately, emails from Clinton’s aides have also fed into different controversies about the Clinton Foundation and the Benghazi compound attack. At heart, these stories are about donor access and foreign policy.
- More recently, there’s also the internal Clinton campaign emails revealed by WikiLeaks. These, generally speaking, have nothing to do with any of the emails above.
It’s crucial to separate these investigations in your head to understand the significance of the FBI’s investigation. The FBI was mostly concerned — and, according to today’s announcement, remains concerned — that Clinton took risks by using a private server to expose state secrets that could be obtained by malicious foreign actors.
In July, the FBI said its investigation into Clinton looked at whether “classified information was improperly stored or transmitted on (her) personal system, in violation of a federal statute making it a felony to mishandle classified information either intentionally or in a grossly negligent way,” or if she broke a second law making it illegal to “ knowingly remove classified information from appropriate systems or storage facilities.” We have no idea if the new emails will provide evidence of that, but it appears to be what the FBI will be looking at.
Did Clinton knowingly send classified information?
It’s not in dispute that Clinton used a private email account and a "homebrew" private email server exclusively during her four years as secretary of state.
In doing so, she wound up exchanging emails containing classified information over communications systems that did not have the safeguards of the government. In all, Clinton sent or received more than 100 emails considered classified — seven of which were marked "top secret" — on the private server installed in her family’s home in Westchester, New York.
The FBI’s investigation, the records of which were released in September in a 58-page report, makes clear there’s no direct proof that "hostile agents" penetrated Clinton’s private server. And as Vox’s Dylan Matthews has noted, prosecutors would need evidence not just that Clinton sent classified information outside secure government networks but that she did so knowing that it was supposed to be classified. That’s the standard the FBI needs to prove Clinton broke the law.
Clinton has denied this, insisting that any classified material in the emails was classified after the fact or she did not realize it had been classified. And the FBI had cleared Clinton of the charge that she had knowingly sent classified information.
But even short of committing a crime, Comey has also made clear that Clinton’s private server made it more vulnerable to foreign hackers, that outside actors repeatedly tried to break into her email account, and that exchanging classified email over private servers at all was "extremely careless."
Trump has suggested that China and/or Russia have actually obtained Clinton’s emails. That is, characteristically, a dramatic overstatement of the facts. But the claim that Clinton’s decision to use a private server really did give foreign hackers a greater opportunity to find classified information is hard to dismiss out of hand. As Vox’s Timothy Lee has written, hackers are really good at covering their tracks if they don’t want to be discovered. The New York Times interviewed several cybersecurity experts in July, and they all concluded that it was probable Clinton’s server was indeed hacked.
Why Clinton’s camp thinks these charges are ridiculous
There have been three main defenses to this line of criticism.
The first is that much of the "classified" information exchanged almost certainly didn’t actually risk exposing national security secrets. That’s because the US government has a notoriously broad classification system that treats anodyne information (or information that’s already public) as secret.
"My standard joke is that the NSA is so crazy they classify their lunch menu," says James Lewis of the Center for Strategic and International Studies in Washington. "Was it a bad idea to set up a private server? Probably. Did it hurt national security or cause any real damage? We certainly can’t conclude that."
The second defense, noted to me in an email by Steven Aftergood of the Project on Government Secrecy, is that the State Department server may not really have been that much safer than the private servers. After all, State's own servers were successfully breached in 2006 and then again in 2015 — so maybe Clinton's emails were actually safer on the private server?
The third defense is also persuasive: Private accounts are pretty routine for government officials. A 2009 email sent by then-Secretary of State Colin Powell, released Wednesday, suggests that Powell frequently used a private server to communicate with foreign governments. (Powell’s private server wasn’t a "homebrew," but it was still outside the government’s systems.)
Critics have correctly said that Clinton’s use of her server appeared to go further than that of other government officials, but the Powell revelation makes this controversy look like a broader indictment of a broken email system — with Clinton being singled out unfairly as a particularly bad example.
Those defenses may be persuasive on the merits. But they’re so complicated that they’ll probably be tough to make convincing with less than two weeks left in the campaign.