Source :NYTimes
WASHINGTON
— As Hillary Clinton moves toward
the Democratic presidential nomination, she faces legal hurdles from her use of
a private computer server as secretary of state that could jar her campaign’s
momentum in the months ahead.
Foremost among a half-dozen inquiries and legal proceedings into
whether classified information was sent through Mrs. Clinton’s server is an
investigation by the F.B.I.,
whose agents, according to one law enforcement official, could seek to question
Mrs. Clinton’s closest aides and possibly the candidate herself within weeks.
It is
commonplace for the F.B.I. to
try to interview key figures before closing an investigation, and doing so is
not an indication the bureau thinks a person broke the law. Although defense
lawyers often discourage their clients from giving such interviews, Democrats
fear the refusal of Mrs. Clinton or her top aides to cooperate would be ready
ammunition for Donald J. Trump, the Republican front-runner.
A federal law
enforcement official said that barring any unforeseen changes, the F.B.I.
investigation could conclude by early May. Then the Justice Department will
decide whether to file criminal charges and, if so, against whom.
“As we have said
since last summer, Secretary Clinton has been cooperating with the Justice
Department’s security inquiry, including offering in August to meet with them
to assist their efforts if needed,” said Brian Fallon, a campaign spokesman.
Federal law
makes it a crime to mishandle classified information outside secure government
channels when someone does so “knowingly” or — more seriously — permits it
through “gross negligence.” Mrs. Clinton has correctly pointed out that none of
the emails on her server were marked as classified at the time.
The bureau’s
investigators have already interviewed Bryan Pagliano, a former aide who
installed the server Mrs. Clinton had in her home in New York and used
exclusively for her private and official email while secretary of state from
2009 to 2013.
Mr. Pagliano, who last year invoked
his Fifth Amendment right not to testify before Congress, has cooperated with
the investigation, according to the law enforcement official, who spoke on the
condition of anonymity because he was not authorized to discuss the matter
publicly. Mr. Pagliano’s lawyer declined to comment.
Mr. Fallon said
the campaign was “pleased” that Mr. Pagliano was cooperating, noting that it
had previously urged him to cooperate with the Capitol Hill inquiry.
In addition to
the F.B.I. investigation, there are continuing inquiries into Mrs. Clinton’s
emails by the inspector general of the State Department, the inspector general
of the intelligence agencies, the State Department’s Bureau of Diplomatic
Security and the House Select Committee on Benghazi.
Aides to
Mrs. Clinton and officials from the State Department also face the prospect of
questioning under oath in a separate legal proceeding brought by Judicial
Watch, the conservative government watchdog group, under the Freedom of
Information Act. In that case, the group has sought emails related to the special
employment status given to Mrs. Clinton’s close aide Huma Abedin so she
could receive additional salaries beyond the one she received from State.
Last week
Judge Emmet G. Sullivan of United States District Court in Washington allowed
the questioning after a hearing in which he criticized the State Department’s
“constant drip” of revelations about emails from the server and said there were
many unanswered questions about who authorized its use.
“It just boggles
the mind that the State Department allowed this circumstance to arise in the
first place,” said Judge Sullivan, who was appointed to the District Court in
1994 by President Bill Clinton and to lower courts by Presidents Ronald Reagan
and George Bush. “It’s just very, very, very troubling.”
He ordered
lawyers for Judicial Watch to submit a “narrowly tailored” plan for questioning
that could begin in April as primaries continue to be held in states like New
York, Connecticut, Pennsylvania and Maryland. The organization, according to
its court filings so far, is expected to seek depositions from Ms. Abedin and
Mr. Pagliano; Mrs. Clinton’s former chief of staff, Cheryl D. Mills; and
department officials like Patrick F. Kennedy, the undersecretary of state for
management.
Judge Sullivan’s
ruling left open the possibility of additional testimony, including testimony
from Mrs. Clinton. “I think there are some legitimate issues that arise because
of this very atypical system that was created,” he said.
The flurry of
questions around Mrs. Clinton’s server stem from the Benghazi committee’s
inquiry into the attack on the American government outposts in Libya on Sept.
11, 2012, that killed four Americans, including the ambassador to Libya, J.
Christopher Stevens.
It was through the committee’s request for records that the use of the
server became known. Mrs. Clinton testified before the committee last October
in what was widely viewed as a highly partisan confrontation.
The committee’s
Republican chairman, Representative Trey Gowdy of South Carolina, pledged
recently to release its final report “as soon as possible,” but the committee
continues to schedule additional witnesses, suggesting its findings could still
be months away. Mrs. Clinton’s supporters have ridiculed the committee’s
partisan edge.
In an
interview on MSNBC last Friday, Mrs. Clinton described the Judicial Watch
case as a partisan one, too, and referred to the F.B.I.’s investigation as a
“security inquiry.” She added that the two were often wrongly conflated.
“I am personally
not concerned about it,” she said. “I think there will be a resolution of the
security inquiry.”
The F.B.I.’s case did begin as a security
referral from the inspectors general of the State Department and the
nation’s intelligence agencies, who were concerned that classified information
might have been stored outside a secure government network. But multiple law
enforcement officials said the matter quickly became an investigation into
whether anyone had committed a crime in handling classified information.
The bureau’s inquiry is being overseen by career national security
prosecutors at the Justice Department, including a member of the prosecution
team that won a guilty plea last year from David H. Petraeus, the former
general and director of the Central Intelligence Agency. The case against Mr.
Petraeus looms large over this investigation, according to officials and
lawyers involved, and its outcome will inevitably be a measure of the one this
time.
Mr.
Petraeus not only wrote down highly classified information in eight black
notebooks he kept in his home — including such details as the names of covert
officers and programs — but he also shared the notebooks with his lover and
biographer, Paula Broadwell. Those secrets were far more sensitive than the
information on Ms. Clinton’s server, a federal law enforcement official said,
and Mr. Petraeus told his biographer so in a recording she made of one of their
interviews.
“Umm, well,
they’re really — I mean they are highly classified, some of them,” he told her,
according to a transcript that was included in the plea agreement filed in
United States District Court in Charlotte, N.C., in March 2015. Mr. Petraeus
went on to refer to the code names that are used for the nation’s most guarded
information, programs and operations.
Mr. Petraeus
also lied when initially questioned by the bureau’s agents. After a lengthy
back-and-forth, the Justice Department — over the objection of the F.B.I. —
negotiated the agreement for Mr. Petraeus to plead guilty to a misdemeanor
charge of mishandling classified information.
While Mr.
Petraeus was recorded saying he knew the information was classified, no similar
evidence has surfaced regarding Mrs. Clinton or her aides.
On the contrary,
in some of the emails that have been made public, Mrs. Clinton and her senior
aides make reference to the
restrictions on discussing classified information on the “low side,” as the
department’s unclassified system is known, versus the “high side,” the
department’s classified computer system.
On Monday night,
the State Department released the last of 30,068 emails from Mrs. Clinton’s
private server that Mrs. Clinton and her lawyers have said were work-related.
Of those, 22 have now been classified by the State Department as “top secret,”
65 as “secret” and 2,028 at the lower level of “confidential.”
Since none were
marked classified at the time, the question is whether classified information —
details of secret programs or sources — nevertheless slipped into the emails.
Many of the “secret” and “top secret” emails were written or forwarded by Mrs.
Clinton’s senior aides.
In their
investigation, F.B.I. agents have sought to compare electronic timestamps on
classified sources to figure out whether the aides reviewed the sources and
then retyped the information into emails that were sent or forwarded to Mrs.
Clinton’s private server. That has proved challenging, and one official said
investigators have not concluded that such retyping occurred.
State Department officials said that an employee who divulges classified
information in the department’s unclassified network could face administrative
punishments, including reprimands or in severe cases the loss of any security
clearance.
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