Gauis Publius: Three Data Points Regarding Clinton’s Email Server and the Law

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Yves here. This post is useful because, if nothing else, it clears up a lot of disinformation coming from the Clinton camp and others about the standard for criminal liability for mishandling “defense” information. It does not have to be classified and the prosecutor does not have to prove intent.

By Gaius Publius, a professional writer living on the West Coast of the United States and frequent contributor to DownWithTyranny, digby, Truthout, and Naked Capitalism. Follow him on Twitter @Gaius_Publius, Tumblr and Facebook. Originally published at at Down With Tyranny. GP article here

‘ve been writing for weeks that there are two aspects to the Clinton “secret server” issue — the way the server was handled, and the content of the messages it contained. Regarding the way the server was handled, almost everything needed to determine criminal liability is already in the public record and has been for a while.

So here are three data points, just three. They line up perfectly so the main idea is easy to grasp. (Consider this the first in a series, “The Clinton Server Story for Progressives.” If events move too quickly, it will be the last, as everyone from Time to the Washington Post will be telling you what’s what and you won’t need me at all.)

The server’s email system was apparently unencrypted for the first two months of use when Clinton was Secretary of State.

This means that email going to and from the server was unencrypted during transmission. Messages were sent and received in plain text. This is the Washington Post from last March (my emphasis):

The server was nothing remarkable, the kind of system often used by small businesses, according to people familiar with its configuration at the end of her tenure. It consisted of two off-the-shelf server computers. Both were equipped with antivirus software. They were linked by cable to a local Internet service provider. A firewall was used as protection against hackers.

Few could have known it, but the email system operated in those first two months without the standard encryption generally used on the Internet to protect communication, according to an independent analysis that Venafi Inc., a cybersecurity firm that specializes in the encryption process, took upon itself to publish on its website after the scandal broke.

Not until March 29, 2009 — two months after Clinton began using it — did the server receive a “digital certificate” that protected communication over the Internet through encryption, according to Venafi’s analysis.

It is unknown whether the system had some other way to encrypt the email traffic at the time. Without encryption — a process that scrambles communication for anyone without the correct key — email, attachments and passwords are transmitted in plain text.

“That means that anyone could have accessed it. Anyone,” Kevin Bocek, vice president of threat intelligence at Venafi, told The Post.

The system had other features that made it vulnerable to talented hackers, including a software program that enabled users to log on directly from the World Wide Web.

Four computer-security specialists interviewed by The Post said that such a system could be made reasonably secure but that it would need constant monitoring by people trained to look for irregularities in the server’s logs.

“For data of this sensitivity . . . we would need at a minimum a small team to do monitoring and hardening,” said Jason Fossen, a computer-security specialist at the SANS Institute, which provides cybersecurity training around the world.

The man Clinton has said maintained and monitored her server was Bryan Pagliano, who had worked as the technology chief for her political action committee and her presidential campaign. It is not clear whether he had any help. Pagliano had also provided computer services to the Clinton family. In 2008, he received more than $5,000 for that work, according to financial disclosure statements he filed with the government.

The Post article is much longer and contains a great deal of information. If this subject interests you, I encourage you to click through.

I hope you noticed the name “Bryan Pagliano” above. He’s among the key people the FBI are talking to. In March, Pagliano was granted immunity in exchange for information. Pagliano is also the subject of a Judicial Watch FOIA request, and he’s on the Judicial Watch deposition list. (For more on Pagliano, see below.)

Your first takeaway — Unless there was encryption employed by Clinton’s private email service that no one knows about, email communications to and from it were readable as plain text. Certainly not deliberately so, but a fact nonetheless.

The above-mentioned Bryan Pagliano has announced he’s taking the fifth in his Judicial Watch deposition. He’s going to refuse to speak when deposed.

The Hill:

Clinton IT aide to plead Fifth in email case

The man believed to have set up and maintained Hillary Clinton’s private email server will assert his Fifth Amendment rights against self-incrimination and refuse to answer questions as part of an open records lawsuit against the State Department.

Bryan Pagliano will decline to answer questions from Judicial Watch, the conservative legal watchdog group, during a deposition scheduled for Monday, his lawyers wrote in a court filing on Wednesday afternoon.

The move forecloses the possibility that Pagliano would break his months of silence about the server issue, even as scrutiny has intensified on his role.

Pagliano’s lawyers told Judicial Watch more than a week ago that he would not be answering any questions, they claimed in their filing on Wednesday, and asked that it drop its subpoena. The organization refused.

“Taking the fifth” is an admission of guilt of something (who knows what?), but it’s an absolute protection from prosecution by evidence from his own mouth. (The ability to “take the fifth,” by the way, is important — it’s our protection against evidence produced by torture. Still, it’s damning, not just of Pagliano, but of that whole crew.)

Your second takeaway — Pagliano thinks he can be prosecuted for something if he speaks about the Clinton email server in his FOIA deposition. Check the first story above to review what he can speak about.

There will perhaps be political consequences from this. Will there be legal consequences? Keep reading.

◾ One of the laws that may have been broken is 18 U.S. Code § 793 – Gathering, transmitting or losing defense information.

Note first that the information listed below doesn’t require a formal “classified” designation to be relevant, and second, that “intent” is not necessary to trigger the law’s penalties. “Gross negligence” is sufficient. Again, my emphasis below:

(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—

Shall be fined under this title or imprisoned not more than ten years, or both.

(g) If two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.

Your third takeaway — Unless this law doesn’t apply for some other reason, it seems perfectly applicable for the reasons noted above. All sorts of State Department business and communications could be considered “relating to the national defense,” including simple travel itineraries of top officials, such as President Obama’s.

“Gross negligence” in allowing such documents to be “lost” or “stolen” is, under this law, a criminal act subject to fines, imprisonment, or both. If the server was hacked, broken into, the above law appears to apply.

Was This Law Actually Broken?

Were documents related to the national defense in fact stolen from Clinton’s “home-brew” server through negligence? I think that’s the piece we don’t know. Will we ever find out? That’s the other piece we don’t know. Still, these data points have been on my mind since I discovered them.

(By the way, the list of laws that may have been broken, not to mention State Department practices and guidelines ignored, is proffered to be long, at least according to the Internet. I’ve seen a list, and this is just one item on it. It’s also the one I find least controvertible, since the meaning of “classified” is a mine field, depending on how each law is written, and this law isn’t limited to “classified” material. I don’t envy the FBI in sorting through all this.)

I’m not saying Clinton committed a crime; I’m not a lawyer, just a political observer. But as an observer, I do observe these data points, and suspect that they’re related. And again, this is all from the public record, and every piece but the middle one has been there, out in the open, for a while.

Stay tuned. This may be nothing or not-nothing. But if it turns into something, you’ll at least have heard about it.

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  1. Skyburn

    ““Taking the fifth” is an admission of guilt of something (who knows what?), but it’s an absolute protection from prosecution by evidence from his own mouth. (The ability to “take the fifth,” by the way, is important — it’s our protection against evidence produced by torture. Still, it’s damning, not just of Pagliano, but of that whole crew.)”

    I take serious issue with this characterization of the Fifth Amendment, that only guilty people need to invoke it.

    I agree with Ken White at Popehat here:

    “You take the Fifth because the government can’t be trusted. You take the Fifth because what the truth is, and what the government thinks the truth is, are two very different things. You take the Fifth because even if you didn’t do anything wrong your statements can be used as building blocks in dishonest, or malicious, or politically motivated prosecutions against you. You take the Fifth because if you answer questions truthfully the government may still decide you are lying and prosecute you for lying.”

    1. Birchnbrook

      Very glad to see that this is the very first comment to this post. Yves knows better than anyone – “Three felonies a day” – that if the government wants to indict you for something, anything at all, they can and will. Taking the Fifth is evidence of nothing other than distrust of the government. It is not in any way an admission of guilt.

      1. Antifa

        That’s the government’s MO, for sure. If you don’t fall down the first time the cop hits you, you’re resisting arrest.

        I’m reminded of the story of the recruit for Scotland’s Black Watch regiment. Their drill inspector lined them up daily for an inspection of every inch of them and their possessions. Including their footlockers.

        One day he found a dead fly in one recruit’s footlocker. He cited him for keeping a pet in the barracks, and then cited him for failure to feed it. You can’t win against that mindset. You aren’t supposed to.

    2. Anon

      Even weirder is why he would take the 5th if he was already offered (and I assume, accepted) immunity.

      1. John Wright

        Perhaps the immunity is only for a different/separate legal action and does not extend here.

      2. Braden

        This is actually an important point. You normally can’t plead the 5th if you’ve been provided immunity, unless you believe there is testimony that you can provide that might incriminate you for a crime for which you were not granted immunity. Otherwise, I would expect the Judge to order him to testify.

        Of course, I’m not sure how the timing of the FBI investigation would work. You typically have to fulfill your end of the agreement to receive immunity, so maybe he hasn’t testified before a Grand Jury yet. Who knows? I thought he would at least subject himself to a limited deposition.

      3. redleg

        If something was classified or is a black project, just discussing it would break the law.
        I have no inside knowledge on this, but the possibility exists that questions regarding classified information could be asked and simply acknowledging that he knows about it could be a violation of the law.

        This circumstance, not being able to discuss projects, basically landed Jeffrey Sterling in jail.

    3. Si

      @skyburn – a very cunning way to take the comments down a different path than Clinton’s alleged crimes (of which there are many).

      I have to think this is intentional.

    4. Skip Intro

      I read that Pagliano was advised to ‘take the fifth’ by the DOJ, who didn’t want to tip their hand on evidence to the Clinton team. That may be speculative, since one might equally assume that the DOJ wants him and everyone to shut up until Clinton is safely elected, and then after that too.

    5. Darthbobber

      If I were relatively small fry, potentially caught between the government itself, activists on a fishing expedition, and political superiors who showed every sign of volunteering me as their Lieutenant Calley if things went south, I’d be taking the fifth on principle. Even more so now that security “law” has become so subjective that even a very good attorney can only take an educated guess at what might be thought actionable.

  2. Clive

    I suspect the matter of criminally, or not, will either be held or fall away on the definition of “gross negligence”.

    My take on whether the management of the Clinton email server was merely negligent or crossed the line into gross negligence was what paperwork the Clinton legal team can produce to verify that it operated the Clintonware server (and provided the email service) in a manner which was Customary and Expected according to well-understood industry standards.

    One nuance I’ll flag which is especially pertinent is that of testing and outside verification of the original setup and any changes which were made during the time the server was operational. The key concept is that you never test your own work. People make mistakes, that’s okay, no one is expected to be infallible. But what is absolutely required when operating a system with information that is high-value high-confidentiality stored on it is a regime of independent testing (i.e. someone who is unrelated to the original change configuration) checks what’s been done and signs off on it. You also need documentary evidence to prove this has happened and processes or Standard Operating Procedures detailing who needs to do what, and when.

    If you have these things embed in how you manage your service, even if there’s a screw-up, it’s almost certainly only negligent. But if someone makes a mistake (like not implementing encryption or not keeping right up-to-date with security patches) and there’s no-one employed or empowered to make sure that this is a) spotted and b) gets resolved as soon as practicable then that is well into being grossly negligent.

    1. Jeff

      From what I read, it is not so much what they did or didn’t do, but it is the cover-up afterwards that will do them in. It is now known that HRC deleted ~30K mails more than 2 years after she left office, but just in the period between the moment Congress asked for the (work-related) emails and the moment they asked for the server.
      We also know that she did not hand over all emails, but we don’t know (yet) how many went missing.
      For me, the only question is whether she will be indicted before or after the nomination.

      1. Amateur Socialist

        “Wipe the server? What you mean, like with a cloth?”

        It might be a great punchline. Someday.

        1. Suzanne

          On the list of classics along with
          “I did not have sex with that woman” and
          “I am not a crook”

          1. OpenThePodBayDoorsHAL

            Ah wouldn’t it be a lovely world, where instead of debating whether one candidate is a criminal liar and the other one is an insane liar and we could be engaged in a debate about the best way to solve the country’s problems?
            Sorry, back to reality now.

            1. nat scientist

              The Dis-Integrative Media owners determine the content. Entertainment is the preferred product on the Midway boardwalk of competing Carnival barkers. On the week where a serious debate was essential, a total critical shutdown. What you see is all you get.

          2. DM

            Fwiw, Bill Clinton actually said ” I did not have sexual relations with that woman…”.

            I thought at the time, after running to a dictionary to look up “sexual relations”, that Bill chose that term very carefully, because it is specifically defined to mean “coitus” yet many of us ordinary people are not necessarily aware of that and might have been expected to assume a denial of that sort means no sex at all.

            He even paused dramatically after each word up to “sexual” and then breezed through the rest of the sentence (breaking up the two-word term), which increased the misdirecting effect.

    2. human

      I agree. The fact that a few emails have been publicly published is evidence of them having been “removed from their proper place of custody.”

      Gross negligence is the bar and if one is guilty all are guilty.

    3. Peter Bernhardt

      Yes, a security review and a formal penetration test by an outside firm would be SOP. And this should have happened before a single email was sent or received. But that didn’t happen as the most basic security (wire-level encryption) was not added for months.

      What also jumps out at me was that Pagliano was paid $5K for his work. That’s a few days of work for an IT consultant. Given the Clinton’s now famous lack of sophistication about computers and the internet, it seems that they hired someone who was at best a novice – and he was in way over his head.

      That would be the argument I’d expect from the Clintons. They put their trust in someone who claimed to know what he was doing. Which may be true, actually, but then you have to wonder why Clinton didn’t not avail herself of the countless security experts within the Department. If she was serious about doing this right, she could have easily gotten the right security people to do it. But that really wasn’t her concern.

      In fact, that is the real issue here – the Clintons were so obsessed with hiding information from the public that they used someone close to their inner circle, someone they trusted, someone who once showed Bill how to log on to AOL, an expert with computers in their eyes but someone who had no relevant experience in setting up a secure private email server, and now someone who will be their fall guy.

      1. tegnost

        fall guy maybe, but that “happy birthday” in 2012 might be an insurance policy…

      2. d1rtwizard

        A pen test seems somewhat unnecessary for a network of this size, but it most certainly would have had to be accredited by the Bureau of Information Resource Management (which is a mess from what I understand).

        Also, I was under the impression that it was specifically email encryption, not wire-level encryption, that Clinton failed to implement. Which honestly makes sense; it’s more troubling to realize that someone, probably several someones, at the State Department had to have helped Clinton set this up (how else could she get her public key onto the State Department’s trust center?).

      3. Watt4Bob

        When you consider there’s a wealth of tutorials available on the web to show you how to secure a mail server, there’s really no excuse for this sort of situation to arise.

        The only question asked was most likely “could you set up an email server?” and the dummy told the other dummies that he’d be glad to help.

      4. NYPaul

        That Hillary Clinton displayed an almost unimaginable degree of hubris by setting up a Rube Goldberg email system for both private and government business is a given. But, what about government communications where the degree of classification was irrefutable; e.g. troop movements, names of undercover personnel, etc? For instance, did she use a SCIF room ( Sensitive Compartmented Information Facility) when in an office that had such a facility? If she did use one frequently then I can see her defense being, “look, my frequent use of a SKIF shows I understood the difference between between what should, or should not, be considered, classified. And, as SOS, the highest ranking official at State, I made that determination.” Wouldn’t that help support or, at least obfuscate, the argument: ” This whole imbroglio is simply a politically driven battle of semantics between competing offices?”

        1. Fiver

          This whole imbroglio is simply a politically driven battle of semantics between competing offices?”

          No. And there`s a great deal more to review in terms of potential infractions, breaches and obstruction of a number of laws. This link was put up here at NC very recently by poster Tegnost. Even from the narrow interpretation of the scope of the investigation presented here it`s evident the extant of wrongdoing is potentially lethal to Clinton`s campaign.

      5. Pug face killer

        I would ad that a “security review” by an outside party would likely be confirmation that individuals without clearance had access toany emails on the server.

    4. ScottW

      If using a basement private email server to receive and transmit government records (or defense records) was a permissible practice, the issue of whether it was properly set up and maintained would be germane. But talking about negligence v. gross negligence is a red herring because it was unlawful for her to maintain public records on a private server. It is akin to arguing, “When the defense official took the records home, she kept them in a very secure basement, so she was not negligent.” No. Taking the records home is when the crime was committed, not the manner in which they were stored.

      Hillary is not currently subjecting herself to any questioning from the press, probably because she has no good answers to why she maintained this home brew server. If the person who set up the server feels compelled to assert the 5th, how could Hillary ever subject herself to questioning by the FBI without doing the same? And if she ever asserts the 5th, its game over.

      1. Braden

        Precisely. Gross negligence is the voluntary or conscious failure to exercise reasonable care. Establishing reasonable care in this situation is really based on what steps a reasonable SOS would take to ensure the safety of classified information. She essentially violated every directive for the handling of classified information that was in the FAM, and in the President’s EO when she set up a private, unauthorized server to send and receive all of her work-related e-mails. Her negligence is demonstrated by her team’s improper and incomplete reporting of hacking attacks, and her decision to turn the server over to an unauthorized third party for storage despite a requirement that she have the SOS’s records officers review her materials to ensure proper recording and storage.

        The entire thing is just one long list of actions where she “fails to exercise reasonable care.” If this doesn’t get at least a misdemeanor indictment from DOJ, I’ll be shocked (OK, I’ll really only be shocked because so much has already been made public that seems to scream criminal liability).

        1. Katniss Everdeen

          You’re right. This whole thing just smells like a crime. And it’s been festering for so long now.

          I think she’ll rue the day she manages to get this swept under the rug, if, in fact, she does. Tolerance for clintonian lawlessness has just about been exhausted. At least with Benghazi, she could point to her “11 hours of testimony” before a congressional commission, lame though it was, for some level of vindication. A finding of no wrongdoing here would just be a bridge too far.

          The only way out of this for her is through it.

          And then there’s obama who, by all accounts, is just itching to “campaign” for her. Really? He’d better hope for some very friendly crowds or he’ll be spending his time explaining his lack of oversight at state and his toothless “justice” department.

        2. perpetualWAR

          You all keep forgetting that there were ZERO indictments of yhe criminal financial institutions. ZERO.

          1. Vatch

            Since the criminal financial corporations were actually rewarded with bailouts, in effect, that means that there really were fewer than zero indictments. In effect, the number of indictments of the criminal banks was a negative number.

          2. reslez

            My dad’s an old retired departmental knife-fighter. He says Obama gave her the election to lose. If she can’t close the deal in November, he’ll let the FBI have her. But nobody in the Democratic party is going to upset an election over some emails. Sure it makes her look really bad, but Sanders knows it’s a losing topic too and hasn’t wasted his time. I would love for this to not be true, but he’s been right so far.

            If it starts to look like H can’t put away Sanders or Trump, maybe that arithmetic changes. That’s the only thing I can think of how the email thing would start to matter. (Biden? Good luck.)

        3. redleg

          The cloud storage alone could violate the law. Just knowing that cloud storage was used and not reporting it may also violate the law.

      2. Scott C Dunn

        According to the recent report from the State Dept. IG, she never even asked.

        I would have posted a comment myself about this, but I can’t subscribe – something is wrong with this web page. For the most thorough examination of this issue that can be found, go here:

    5. Propertius

      My take on whether the management of the Clinton email server was merely negligent or crossed the line into gross negligence was what paperwork the Clinton legal team can produce to verify that it operated the Clintonware server (and provided the email service) in a manner which was Customary and Expected according to well-understood industry standards.

      I would think State Department standards (as described in the FAM (Foreign Affairs Manual], FIPS [Federal Information Processing Standards], and FISMA [the Federal Information Security Management Act]), rather than general industry standards would apply to her email server. Those standards mandate the use of NIST-approved encryption.

      1. Propertius

        To elaborate, page 55 of the Inspector General’s report says:

        In 2008, the Department amended the FAM to define “remote processing” as the processing of Department information on non-Department-owned systems at non-Departmental facilities.

        Offices that allow employees to remotely process SBU information must ensure that appropriate
        administrative, technical, and physical safeguards are maintained to protect the confidentiality
        and integrity of records.

        Employees are prohibited from storing or processing SBU information on non-Department-owned computers unless it is necessary in the performance of their duties.

        Employees must (1) ensure that SBU information is encrypted; (2) destroy SBU information on their personally owned and managed computers and removable media when the files are no longer required; and (3) when using personally owned computers, implement and
        regularly update basic home security controls, including a firewall, anti-spyware, antivirus, and file-destruction applications, and if those computers are networked, also ensure the same basic controls, plus NIST-certified encryption, for all computers on the network.

        It’s important to note that failure to adhere to the FAM, FIPS standards, and FISMA is not a crime – no legal penalties are specified in FISMA. I would assume that any ordinary State employee would be terminated (or at least reprimanded) for violating them, but “laws are for the little people.” The Secretary serves at the pleasure of the President, after all.

        I do think that failing to adhere to written guidelines for securing Federal information might influence the determination of whether “gross negligence” was involved in any hypothetical loss of such information.

        1. redleg

          SBU in this case is Sensitive But Unclassified.
          I’m not sure if that was defined in this thread.

    6. Nax

      Hillary sent the emails from her private server to her law firm to sort through and decide which ones were personal and could be deleted and which ones should be returned to State.

      Does anyone believe that the people who sorted through those 60,000+ emails had sufficient security clearance to do so?

      1. redleg

        If they didn’t have clearance, or the people sorting didn’t, that would appear to violate the law too.
        This gets contagious, which is why you aren’t supposed to home brew a server like they did.

    7. Eric Neikrug

      gross negligence : negligence that is marked by conduct that presents an unreasonably high degree of risk to others and by a failure to exercise even the slightest care in protecting them from it and that is sometimes associated with conscious and willful indifference to their rights — see also recklessness — compare criminal negligence in this entry

      Personally, I think this would be impossible to prove.

      1. Fiver

        But she trips the bar the moment she ignores all the clear warnings, many with specific prohibitions and sanctions, not to do exactly what she does. In any event, to only consider this as a matter of negligence misses the possibility of intent – and I for one do not buy her version that this is at most about an ‘oops’ level of mistake done in the name of the sin of the pursuit of ‘convenience’ for one nano-second. She and the people around her are very smart when it comes to power and influence and why should we not ask whether they set things up the way they did precisely to either achieve personal access and control over a range of privileged information a good portion of which was very sensitive (and some of which may have been permanently destroyed) therefore breaking specific numerous policies and laws OR she knew full well she was effectively beaming that array of info directly to one or more third parties who either had access to all the same stuff on the same server, or could readily hack it?

  3. Brooklin Bridge

    Copied from a comment I made the other day since it is relevant.

    Jonathan Turley suggests Hillary still has friends in high places in his discussion of former Clinton IT adviser, Bryan Pagliano, who is taking the fifth amendment in deposition on email scandal,

    The silence of Pagliano and the reported lapse of memory of other top aides is likely good news for the Clinton team in pre-November damage control. If top aides will claim faulty memories or invoke their right to remain silent, the only disclosures before the election would have to come from the FBI or Congress. Yet, the FBI would turn over any proposed indictments to the Justice Department and, if the Justice Department scuttles any indictment, there would not normally be a public report.

    I kept the link in the above paragraph active as it is interesting reading.

    For those curious as to why Pagliano would take the fifth (rather than go straight for a quart :-)) when he already has immunity, one of the comments to Turley’s post explains (from Tin at 1:42 am):

    They are completely different matters. The FBI gave him immunity from possible criminal prosecution. The deposition mentioned n this post involves a civil lawsuit, “Judicial Watch v. U.S. Department of State.” It is a civil suit brought under the Freedom of Information Act to get more documents out of the State Dept.. Pagliano is not a party to the suit, but they want to depose him as a non-party deponent and his lawyers sought a protective order. He plans to take the 5th and his lawyers don’t want it videotaped.

    1. sd

      Just to be clear, Bryan Pagliano is taking the fifth and will not answer questions on the stand but he is issuing a written statement. At least, that is what his lawyers have said.

  4. voteforno6

    I don’t expect any indictments, unless the mishandling of classified information was really egregious, simply because not many senior officials get prosecuted for this type of thing. For someone in the trenches, though, this would surely have resulted in a loss of job and loss of security clearance, which are both really big deals. Clinton doesn’t have to worry about those types of administrative punishments, though.

    I suspect this double standard is what really annoys people who live in this world – they know what would happen to them if they pulled a stunt like this, and they get really put off by Clinton’s defenders who claim that this is a “nothingburger.”

    1. Jessie G

      That does annoy me. I spent many years working in IT for financial services and even though I had zero access to financial data, I would have been fired, investigated and maybe arrested if I had done the same as her. My career in the industry certainly would have been over.

      But I’m also annoyed because all of her actions in this, even if they argue out of them being illegal, point to her covering something else up. I see absolutely no other reason for it.

    2. crittermom

      “I suspect this double standard is what really annoys people who live in this world…”

      You’ve got that right! Grrrrrrrr…

      1. redleg

        Don’t forget that State sent out a blanket email telling staff not to use private email (per the IG report). Which State department person sent the email? Hillary Clinton

    3. Praedor

      It infuriates me to the point that it is IMPOSSIBLE for her to gain my vote no matter what she does or how she changes her platform. I served 20 years in the military, am a vet, had TS security clearance. I would have been chewed up and spit out if I had handled classified and even official business information as sloppily as Hillary. I cannot and WILL not accept separate rules for different people based on their elite status or not. One set of rules applied to ALL EQUALLY is the only thing I will accept.

    4. Pavel

      Especially given what a hard line Hillary took against Chelsea Manning and Edward Snowden, among others.

      1. redleg

        Don’t forget that State sent out a blanket email telling staff not to use private email (per the IG report). Which State department person sent the email? Hillary Clinton.

    5. steelhead23

      I suspect this double standard is what really annoys people who live in this world – they know what would happen to them if they pulled a stunt like this, and they get really put off by Clinton’s defenders who claim that this is a “nothingburger.”

      I believe Gaius is barking up the wrong tree here. It is known fact that while SOS, Clinton met with individuals who were substantial contributors to the Clinton Foundation. Unlike the SCOTUS, I don’t need a quid pro quo to see the potential for corruption. Rather than roasting Hillary for her fast and loose use of government communications, we should be trying to link U.S. benefits to foreign nations to donations to the Clinton Foundation. Down that path lies RICO.

      1. Samuel Conner

        Exactly. The larger possibility is that the crime that Clinton is superficially seeking to cover up — the illegal email server — served the purpose of protecting something much bigger and uglier.

    6. Fiver

      But her mishandling of information, classified and otherwise WAS really egregious – her entire correspondence with Sidney Blumenthal, for instance and that is only from the portion of the e-mail made public.

  5. apber

    The elephant in the room, miles apart from the server, is the obvious question of whether or not, Hillary’s setup was purposeful so as not to leave any trace of the pay-to-play activities of the Foundation. Hillary could be legally (?) pardoned by Obama for the server, but not for the implied treason of selling access to the State Department for “favors”.

    1. Propertius

      I wish people would stop throwing the word “treason” around. “Treason” is the only crime specifically defined in the Constitution (Article III), and that definition is intentionally quite narrow (whether Anne Coulter likes it or not):

      Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

      The framers were justifiably concerned that future governments might invoke the charge of “treason” to silence the dissident or the disagreeable.

      Since the United States hasn’t been legally at war since 1945, it’s hard to see how anyone could be charged with treason at the current time. You’ll note that none of the Americans charged and convicted of espionage for the Soviet Union during the Cold War were ever charged with treason. The government, however, disagrees with me: the US did charge one American, Adam Yahiye Gadahn, for treason for fighting for Al Qaeda. He was assassinated by drone before he could be tried (because noted “constitutional scholar” Barack Obama is all about due process).

      In any event, “selling access” to the State Department isn’t “treason” – “corruption” or “bribery” perhaps, but certainly not “treason”.

      1. aab

        It’s late at night, so maybe this isn’t going to be that articulate, but I’ve never read this point about treason before.

        If there is proof that the Saudis financed 9/11 (as is apparently in the report and discussed in the Hillary’s emails) wouldn’t that make them our enemy as defined constitutionally? It was an attack on our soil. If so, wouldn’t any deals Hillary did using the State Department to provide aid and comfort to the House of Saud by entangling the Clinton Foundation potentially meet the standard of treason?

        Don’t get me wrong — OBVIOUSLY that is one charge that is never, ever going to happen. I’m just curious as to whether technically one could make that case.

  6. Erwin Thomas

    LOL! “I’m not saying Clinton committed a crime”!?! You must be joking! If you’re instructed in a particular context related to you doing a specific job how you’re supposed to do it and are fully informed that if you don’t do it in this manner that you’re committing a federal crime, then I guess you’re absolutely clueless as to when a someone commits a crime or not. It’s like me explaining to you in detail what constitutes and what doesn’t constitute assault, you commit a violent assault consistent with what I described as assault against someone and then say you don’t know if it’s assault!?! Wake up!!!

    1. Katniss Everdeen

      And clinton is a LAWYER, after all, who previously supported her husband’s legalistic “defense” consisting of “what the definition of ‘is’ is.”

  7. dk

    Even absent criminal or benign intent, it’s the negligence that I find distressing. Secretary of State is a high office, it’s responsibilities should be taken to heart. The convenience-of-a-single-blackberry argument is an insult to the gravity of the position… if the job is such a burden, DON’T TAKE IT.

  8. Brooklin Bridge

    Since I don’t get cable TV I would be curious to know how much coverage MSNBC has given to the latest email revelations since Mika (on Morning Joe) interviewed Chuck Todd and Andrea Mitchell a few days ago. These broadcasts are carefully choreographed to work with each other. In this case, I think the news re Clinton’s email scandal was sufficiently stark that Mika HAD to do a hard hitting broadcast and Todd and Mitchell had to look and sound sufficiently scandalized. This is a classic move in an effort to bury a story that can’t initially be buried. Get it out there with appropriate outrage and follow up with the gift of deafening silence. Back in the days I was foolish enough to try and squeeze a drop of truth out of endless MSNBC broadcasts, this pattern of incredible frankness followed by silence happened multiple times – such as the first stories that there were no weapons of mass destruction in Iraq but the networks were told to deal with it in such a way that it got buried. The frankness was unusual, incredible even (for MSNBC at least) the subject matter deserving of a full blown scandal which is what it looked like was about to happen, and then, silence.

    Has R Maddow even brought the subject up in anything other than derision? Hope I’m wrong, but after years of watching that disgusting crew operate, I take nothing they say at face value.

    1. Katniss Everdeen

      …… this pattern of incredible frankness followed by silence happened multiple times…….

      Well, it’s happened again.

      The momentary, distastefully unavoidable “frankness” was hastily replaced. Yesterday it was with a shrill, non-stop hysteria over Trump U. and 3500 lawsuits in which Trump has been involved during his business career. In a relentless, “breaking news” kinda way.

      So far this morning, it’s been fawning adulation for yesterday’s “foreign policy” speech which, all acknowledge, contained no “foreign policy” at all. Rather she gets high marks for “mocking” Trump in a myriad of clever, humorous and highly “presidential” ways, and provoking behavior in response that demonstrates how right she is about his unsuitable “temperament.”

      1. Yata

        You were able to watch it. It look one look at the opening moments with HRC framed against a backdrop of so many American flags, there was nothing else in view, that I inherently knew there would be nothing of substance for the next thirty minutes. Thanks for pulling barf duty for the rest of us.

        You know, it was Chris Christie, in one of the republican debates, who rightly chastised Rubio, in full view of the cameras, for his incessant and ridiculous use of the “make America great again” spiel, and offering nothing of substance to the American people as a staple of his campaign.
        Chris Christie effectively disappeared from the trail after that, but was absolutely right in his observation.

      2. Praedor

        Her foreign policy speech simply reinforces the analysis provided here, that Hillary is a true danger to the world and likely to start WWIII:

        The instant it was announced it would be a foreign policy speech I KNEW she would present the big evil Putin trying to grab the world, about the poor (Islamist extremist) “rebels” in Syria needing our help, etc, and how Trump endangers our divine march to WWIII.

        Hillary has NO valid experience or credibility in foreign policy. Literally everything she touched turned to shit.

        1. aab

          Hillary has NO valid experience or credibility in foreign policy. Literally everything she touched turned to shit.

          It never ceases to amaze me how true this is, as highly credentialed and highly paid people assert otherwise.

          Also, you could strikeout “in foreign policy” and the statement would still be accurate.

    2. Left in Wisconsin

      I tend to watch MSHRC at night (don’t watch Mika and Joe), not all night every night but quite a bit, and other than one brief moment on Chris Hayes a few days ago, it has been radio silence on the email issue. Literally nothing. Also pretty much total blackout on Sanders – sometimes a quick mention that he is still around in the last 5-10 minutes of the hour (when it is otherwise mostly commercials).

      And the one brief mention was really painful. I think Chris Hayes is basically a good guy who is much further left than the others but has accepted his deal with the devil (if those two things are possible at the same time). He had a short telephone interview with HRC herself and had, to my eyes, obviously been cleared to ask her one question about the IG report as long as it wasn’t too challenging. TBH, I can’t even remember what the question was – his grim face suggested he knew it was a softball and she gave the standard HRC reply – and that was it, no follow-up and interview over.

      What I find hilarious is how, with radio silence re: email hair+tar ball off-limits, when they do discuss Sanders, it is invariably on the order of “I truly don’t understand why he is still in the race when it is so clear the she will be the nominee.” Jeff Weaver, to his credit, still shows up from time to time to remind them that their delegate count is off. But he is either adhering to Sanders’ wish to not talk about emails or has been instructed that he won’t be given air time if he brings it up.

    3. Nax

      I watched quite a lot of MSNBC that day and they pushed the email story from Morning Joe through the lunchtime shows.

      However I am pretty sure that it was entirely absent from Rachel Maddow, Lawrence o’Donnel and Chris Hayes. I believe that Chris Matthews mentioned it briefly.

      I was actually quite surprised at the total absence of evening coverage.

      1. Lambert Strether

        I think though, from what Andrea Mitchell said, that the elites know what a cluster this is, beyond any possibility of denial. That, to me, was a shift in tone. They may still think Clinton can brazen it out. They could be right; it’s happened before.

        1. Nax

          I was shocked when I saw the coverage of Mika and Andrea Mitchell calling Clinton a liar. They seemed to be personally affronted by Clinton’s lies.

          It reminded me a little of when the media turned on McCain after Lehman Brothers went down and he suspended his campaign, after saying that “the state of the economy is strong” earlier that day.

          The media blackout returned with surprising swiftness but it really did suggest that a significant portion of the ‘friendly’ political media will turn on Clinton if the email story breaks against her. That would make it much, much harder for her to tough it out.

  9. Watt4Bob

    I think we should all accept the opinions of legitimate cyber security professionals here, and understand that the Clinton ‘Home-Brewed’ email server was hacked.

    It was hacked by the Russians, the Chinese, and whoever cared to hack it.

    It was put together by somebody who didn’t know what they were doing, at the behest of someone who didn’t know, or understand the risks involved.

    Hillary and her team live in a fantasy land where carelessly skirting the rules in an effort to avoid scrutiny is obviously considered no big deal.

    Ironically, this behavior led to a situation where the our Secretary of State’s communications were vulnerable, and there is little doubt in any legitimate cyber-security professionals mind that that vulnerability was leveraged for all it was worth.

    It was Hillary’s decisions that led to this situation, but it’s clear that even though granted immunity, Bryan Pagliano understands that the machinations of power will inevitably hang this whole mess around his neck.

    Bryan Pagliano has destroyed his professional reputation, if he had any, and has decided that keeping his mouth shut is the prudent thing to do because people in his situation have sometimes come to bad ends.

    Right now, the MSM is doing its part to convince us that what Hillary & Co. did wasn’t so bad, they just chose the wrong ‘expert’ to execute the plan.

    1. jsn

      I would add in all likelihood it was hacked by the CIA, NSA and possibly the FBI.

      She’s thoroughly pwned by the Spook State.

      1. Watt4Bob

        You got that right.

        My guess would be that as soon as that server went active it was swarmed by every intel group on the planet.

        They were probably bumping into each other coming and going.

      2. rhw

        Of course, thoroughly owned blackmail bait, since at least the NSA has archived the content of those 30,000 emails she couldn’t find or has wiped from her disks. Or maybe the FBI has even been able to those messages from some overlooked backup memory?

        1. aab

          No, it’s more ridiculous than that. Without her OR HER CHOSEN PROVIDER knowing it, the entire server was uploaded to cloud storage, and then I think it was backed up to ANOTHER server. Her own system literally got backed up to multiple private storage accounts without anyone in Clintonland ever realizing it. At least one was a complete accident.

    2. flora

      “It was put together by somebody who didn’t know what they were doing, at the behest of someone who didn’t know, or understand the risks involved.”

      That’s Hillary’s m.o.: grandiosity combined with sloppiness.

      1. grayslady

        Unfortunately, I think it’s more than sloppiness. Hillary just doesn’t care. She is an individual with no moral compass who thinks she should never be held accountable for anything. Like Obama, she believes in more and better PR rather than assessing or re-assessing decisions. I lived through the Watergate years, and, IMO, Hillary is way more dangerous than Nixon. I really don’t want to go back to those times.

            1. aab

              I was a child during the Nixon years, and thought he was the actual Presidential nadir the American system could produce.

              She seems worse to me. Much worse. All the Kissinger, none of the EPA. All of the paranoia and embrace of criminality in pursuit of power, plus more entitlement and incompetence.

              I can’t believe she’s starting to get me to look back on Nixon with some warmth. Nixon.


      2. Emma

        It’s enough to make you feel like commenter Craazyman isn’t it?
        Yes, Hillary Clinton is the Grandiose Grandma indeed………..And yet the common stock ‘grandma’ takes way better care of her secret sauce than Hillary with US national security meat n’ stuffing!
        With far-sighted spectacles, the common stock grandma seasons sagely, knows when things are off, forks twenty-four carrots if touch & go, dishes out dirt for just deserts, and gets The BFG (The Big Friendly Giant/Roald Dahl) to place her secret sauce on the highest shelf possible for protection within the celestial heavens of Neverland….
        Perhaps after all is said and done, it’s simply about having good taste.

      3. TheCatSaid

        Or, excess motivation combined with lack of competence.
        I just read something online about the dangers of hiring someone with strong motivation and strong presentation and amicability/qualifications/experience. It’s the competence as demonstrated by past accomplishments that must be considered.

        Here’s the short excerpt that made me think it was a classic description of HRC (italics mine):

        “However, I learned a number of lessons from this situation that I never repeated:

        * Interviewing personality has nothing to do with motivation.
        * Box-checking skills has nothing to do with competency or motivation.
        * Never hire anyone who is more motivated than competent. These are the people who change the wrong things too fast.

        “. . . You won’t figure it out by the quality of the candidate’s presentation skills, how socially assertive the person is or by the person’s affability or appearance or by some assessment test.”

        The article has nothing to do with politics but its description of pitfalls in the hiring process show the irrelevance to future job performance of the skills HRC excels at (though in part due to the strengths of her support team): presentation, socially assertive, strongly motivated to get the position. They stand in stark contrast to her terrible performance record in the positions she has held (choosing violence, aggressively destroying other countries and their economies, dishonesty about her actions and her intended actions, corruption–serving vested interests who put money into the pot, rather than serving the interests of citizens and others in her care). Her demonstrated incompetence in the areas that matter is the accurate predictor of how she would perform in the office to which she aspires.

        I would not recommend hiring this person for any position of responsibility or trust.

        1. Emma

          And a wised up cat says…..
          Motivation & competence fluctuates over time and varies in whatever climate/environment you find yourself. It really depends on the level of the challenge/job difficulty and how (competently!) you’re matched to it, the purpose, tools & resources at ones’ disposal, group/community commitment (incl. equals & leaders) and support, contribution (& perception of) impact……
          As is however seen with Bernie Sanders, the motivation of others over oneself is perhaps the most competent skill to have in certain situations….

    3. Knifecatcher

      I have some computer security cred and I agree – it was hacked, without a doubt. Two points:

      1.) The fact that the e-mail server was initially unencrypted means that the e-mail traffic could be read WITHOUT NEEDING TO HACK THE SERVER. It was cleartext, meaning anyone with access to that web traffic could sniff it out. So for that first few months asking about a hack is a moot point – the front door was effectively wide open.

      2.) Any halfway decent hacker would have no problems at all covering up any evidence of the hack and data exfiltration, especially for a poorly designed / secured server. Absence of evidence means little to nothing.

      I guarantee that the security experts at the FBI / State IG / etc are operating under the same assumption – that server was penetrated more than a “stewardess” on Jeff Epstein’s 727.

  10. Tom

    Two other interesting items that have also been in the public record for months, but little remarked on:

    1. The FBI’s initial investigation into Clinton’s possible mishandling of sensitive information to determine if she compromised national security expanded at some point to also include an investigation into the Bill, Hillary and Chelsea Clinton Foundation.
    According to an April 27, 2016 Washington Times article:

    “Recall that the FBI probe is proceeding along multiple tracks. The one involving her possible mishandling of classified material is the “what” part of the equation.

    Far more important, however, is the “why.” Why did she have these documents on their unsecure, private server in the first place? What was the motive for receiving and sending so many of them, deleting more than 30,000 more and changing her story several times about their nature?

    Motive is the key. That brings us to another part of the investigation: possible violations of public corruption laws in the co-mingling of Clinton Foundation work with her duties at the State Department.”

    There are very few references to this part of the investigation that I can find, and there is some debate about whether it is even true that the FBI is investigating the Foundation.

    2. From a Feb. 11, 2016 Washington Post article:

    “Investigators with the State Department issued a subpoena to the Bill, Hillary and Chelsea Clinton Foundation last fall seeking documents about the charity’s projects that may have required approval from the federal government during Hillary Clinton’s term as secretary of state, according to people familiar with the subpoena and written correspondence about it.

    The subpoena also asked for records related to Huma Abedin, a longtime Clinton aide who for six months in 2012 was employed simultaneously by the State Department, the foundation, Clinton’s personal office, and a private consulting firm with ties to the Clintons.”

    First of all, regarding Abedin, I’ve heard of double dipping, but this is ridiculous!
    More importantly, I don’t know how these investigations relate to each other — is the FBI investigation into the Foundation really happening, are the State Department subpoenas to the Clinton Foundation part of the FBI investigation, or will the State Department share its findings with the FBI, or are the two investigations separate?
    Too many questions, not enough time.

    1. Watt4Bob

      I hope for Bryan Pagliano’s sake, that he doesn’t happen to know the answers to any of the questions.

      The level of hubris involved here may mean that he has some understanding of the ‘why’ and, or heard things he shouldn’t have as concerns ‘motive’.

    2. grayslady

      The investigation into Abedin was completed. IG claimed she owed money for vacation and maternity time that she wasn’t entitled to; she’s fighting the claim. Since there have been no reports regarding the foundation investigation, I assume the investigation is continuing. Based on the work Charles Ortel has been doing, it sounds as though the recordkeeping for the Clinton Foundation is a disaster, so it may be taking longer than expected for State to complete its investigation.

      1. Tom

        Agreed. The Foundation investigation is the big, big, big matzah ball hanging out there.
        It’s the extent to which the emails provide a window into the intersection between the Foundation and Clinton’s State Department tenure that is the $64,000 question.
        Sloppy email protocol that may have endangered national security is one thing.
        But emails that provide devastating evidence of an alleged $100 billion charity fraud (to use Ortel’s depiction) is a whole ‘nother level of business.
        If the FBI has truly caught a tiger by the tail, the question is what will (or can) they do with it. They just might have their hands on something that is so far above their pay grade its got them looking over their shoulders.

      2. Tom

        The investigation into the Foundation is the big matzah ball hanging out there.
        Sloppy, unauthorized email protocol that harmed national security is one thing. For someone of Clinton’s stature she’ll probably get no more than a slap on the wrist (just look at the Petraeus case) — unless there are actual dead bodies associated with a breach of operational security. The who knows.
        But the extent to which the emails serve as window into the nexus between the Clinton Foundation and Clinton’s tenure as Secretary of State is the real $64,000 question. If the FBI has hard evidence of what’s been alleged as a $100 billion charity fraud by The Clinton Foundation, then the FBI truly has a tiger by the tail. The question then is, what will (or can) they do with it. The FBI may have their hands on something that is so far above their pay grade, that it’s got them looking over their shoulders.

    3. Pavel

      Re the FBI — I read a comment which made an excellent point: Hillary has really boxed herself in with the FBI interview due to the IG report non-cooperation. Her excuse for the latter is that she will answer all the questions for the FBI. If she ducks the interview or pleads the Fifth, I imagine all hell will break loose.

      (And of course that is a bullshit excuse in any case; the IG investigation was separate and she should have cooperated there along with her staff.)

    4. ToivoS

      The Foundation investigation has the best potential to take down the whole Clinton clan. I have been following Bill’s involvement in that Khazakhstan-Uranium deal going back to 2008. This touches directly on Hillary. While SOS the department approved that Canadian uranium company sale to the Russians. The pres of that company donated $5 million to the Foundation. In addition, Bill gave a speech in Moscow, had a personal meeting with Putin and received a $700 k “honoarium” a few months before State approved the sale. This whole deal stinks. Much of the money flowed through a Canadian shell company and it is not clear to me how much access the FBI has to their records.

  11. Brian MD

    One other important take away, gleaned from the deposition of Mills, is that Clinton continued her practice of private emails from her days as a Senator. The glaring question this should raise, which I have not seen yet, is what information came through her private email then as a Senator which was of a classified nature and what security protocols were in place. I do not raise this issue to say that she was breaking the law even then but as part of a larger conversation about what all of our Senators are doing with their email communications to ensure that classified information which they have access to remains safe and secure from America’s enemies. Have there been breaches, by who, and what was done about it?

  12. Ishmael

    A point missed is top secret information was coming into the server and Bryan Pagliano had access to it. To handle or access top secret information you are required to have “Top Secret” clearance. The question is whether Mr. Pagliano had such clearance. Giving top secret information to a person who does not have appropriate clearance is probably a violation of the espionage law even if the person does nothing with it.

    1. Rhondda

      DailyCaller (yes, I know) has has done some pretty good investigation and reporting on the hairball. “Hillary’s Highly Paid IT Guru At State Department Had No National Security Experience”

      Prior to working for Hillary’s presidential campaign, Pagliano was a senior systems engineer at Community IT Innovators, a small IT firm that catered to non-profit organizations. The organization represented liberal advocacy groups, community services organizations, schools and NGO’s, according to its web site.

      DC reports that Pagliano came with Clinton to the State Dept gig and was hired in as a GS-15 even though he had no national security experience or security clearance. $140,000 to start.

      Pagliano described himself at the State Department on his LinkedIn page as a “strategic advisor and special projects manager” to the department’s Chief Technology Officer.

      He was assigned to the State Department’s Bureau of Information Resource Management, a highly classified system which manages the digital traffic of 50,000 U.S. diplomats and foreign service officers at the 250 U.S. embassies and consulates located around the world.

    2. ToivoS

      The Denver company that managed the server also did not have clearance. They in fact had physical possession of the server for a few weeks while they ungraded the system.

  13. Jim Haygood


    Donald Trump said Thursday night that Hillary Clinton ‘has to go to jail’ for her actions in a classified email scandal that has dogged her for the entire year she’s been a presidential candidate.

    Trump, the Republicans’ presumptive nominee, called [Hillary’s San Diego speech] ‘a phony hit job,’ and announced that ‘she’s guilty as hell.’

    ‘I watched Hillary’s thing today, which was hard,’ he said. ‘It was like taking Sominex. To watch her is like Sominex.’

    To the FBI: “We’ve got your back.” :-)

    1. fresno dan

      “Unless this law doesn’t apply for some other reason, it seems perfectly applicable for the reasons noted above. All sorts of State Department business and communications could be considered “relating to the national defense,” including simple travel itineraries of top officials, such as President Obama’s.

      “Gross negligence” in allowing such documents to be “lost” or “stolen” is, under this law, a criminal act subject to fines, imprisonment, or both. If the server was hacked, broken into, the above law appears to apply.”

      “Unless the law doesn’t apply for some other reason…”
      Let me fix it for ya:
      The author probably meant, “Unless this law won’t be enforced for the reason that Hillary is the dem presidential nominee….”

    2. Noonan

      Trump could probably win the election simply by promising to prosecute Hillary Clinton.

  14. charles 2

    A certificate is mostly used to encrypt the communication between the mail server and the mail client but on the path beyond the server, it is encrypted only if clinton was encrypting her e-mail with S/MIME, which is much more doubtful because the other side of the conversation must have a encryption infrastructure as well : they must have the public key part of the certificate of clintonmail to send encrypted email to clinton, and clintonenail must first get the public key part of the certificate of the sender to send encrypted email outside. The fact mentioned in the State Department Report that she received phishing email and was not sure that it was a genuine one (“Was it from you ?”) suggests it was not the case.

    Tapping the packet somewhere between Clinton’s basement and her ISP would reveal everything in the clear. Considering its packet sniffing ability, The NSA probably has all her emails , except maybe her internal email within the same domain (like emails to Bill) which don’t get in the wild. Actually, they probably have the content of all the personal emails of everyone that counts in Washington…

    BTW, reading the mails over the phone is not going to help, unless she used a secure line.

    1. JustAnObserver

      Just to amplify charles’ point a little for non-techies.

      o Adding the digital certificate in the server side very late means that emails *to* the Clinton server were certainly unencrypted for 2 months. Beyond that it would depend whether the sender enforced encryption (required TLS – Transport Level Security). (+)

      o For emails *from* the Clinton server encryption would depend on how the server crew set it up i.e. TLS required or STARTTLS.

      o The “path beyond the server” is the actual reading of the emails. It would be encrypted if she used e.g. a web-based reader connected via https. Otherwise, as charles notes, simply reading her emails from somewhere outside that famous basement would expose them in plain text.

      (+) I certainly hope its was TLS and not the older SSL method which is now condidered broken. Which leads to an interesting question a lawyer could ask to establish how security sophisticated Bryan P. was.

      1. Jim Haygood

        Judicial Watch already thought of that:

        “Bryan Pagliano’s resume, which the State Department recently turned over to Judicial Watch, shows he had neither experience nor certification in protecting email systems against cyber security threats.”

        Pagliano was a Schedule C political hire, slotted into State’s IT staff from Hillary’s 2008 presidential campaign — to the bafflement of the professional IT staff, who were all civil service employees.

        1. crittermom

          I suspect he’s toast. A perfect fall guy. Probably chosen for that very role.
          Pick the low hanging fruit to pacify the masses.
          Just as Lorraine Brown with LPS was the only one prosecuted in the mortgage ‘debacle’, while those higher up received bonuses.

          I’ve no doubt they intend to toss Pagliano under the bus so they can coronate a queen.
          Dare I say we the masses are not pleased, as we grow tired of these……’re-runs’?

          1. redleg

            That would work, but the law states that conspiracy laws apply. If one violated that law, all the helpers did too.

      2. d1rtwizard

        I’m assuming she used OWA for emailing from workstations and used a VPN for access from her blackberry?

        Also charles, I’m pretty sure that she was able to get her public key into the State Department’s trust center, which certainly means that individuals in the State Department we aware of her situation. State Department, like all government, uses PKI.

      3. Tom

        Another point that I’ve read in several places is that Hillary’s server wasn’t new when she had it installed in her basement. No, it had been in use as Bill Clinton’s server for an undetermined time before that. So there is no telling what kind of security history it had before it began a new chapter as Hillary’s email server, nor what kind of malware, viruses or other things might have already been on it.

        1. sd

          See the link to the WaPo article up thread. It covered the history of the server. Four different people handled it.

    2. Synoia

      The NSA probably has all her emails , except maybe her internal email within the same domain (like emails to Bill) which don’t get in the wild.

      They do get into the wild, because the emails get read, and probably not from inside the home containing the email server.

  15. Jessie G

    The Inspector General’s report states “At a minimum, Secretary Clinton should have surrendered all emails dealing with Department business before leaving government service and, because she did not do so, she did not comply with the Department’s policies that were implemented in accordance with the Federal Records Act.” It also indicated that the department never fully complied with FOIA requests since her emails were not available for the search. Aren’t both of those violations of the law? (And if not, why not?)

    That report also gave some indication of the missing emails (page 23), including “no email covering the first few months of Secretary Clinton’s tenure—from January 21, 2009, to March 17, 2009, for received messages; and from January 21, 2009, to April 12, 2009, for sent messages.” They were also able to determine some individual missing email threads.

  16. jim

    Even if she were not intending to run for the presidency, she could not have been oblivious to the fact that Republicans would be glad to broadcast every misstep. She must also have known the meaning of the word “secure” with regard to electronic communications even if she herself did not know how to program necessary encryption.

    Either she or a member of her staff must/should have asked whoever set up the server something to the effect of “is this system absolutely secure?” Even if the question was not asked, anyone setting up the system must have known who would be using it and their potential political vulnerability.

    To this reader, the failure of the installer apparently to do so raises the question of the individual’s or the firm’s competence for this level of task. One must wonder why more questions are not directed to those who set up the Clinton home system.

    Highly secure systems, possibly by definition, are not convenient. Even if the users of the system tried to countermand the necessary level of security, the firm, if one of high integrity, would or should have refused to do so.

    1. reslez

      Actual security costs more than the piddly $5000 she paid to setup her email server. Could be another case of an elite who cheaps out on paying others for necessities (while grabbing $225k per speech with both hands). Who is the commenter — Jim in Flyover? — who talks about elites scrimping on maintenance of their precious private planes, as if gravity doesn’t apply when you’re 10,000m in the air?

  17. JustAnObserver

    One question that I’ve never seen asked or discussed: Where was John Kerry, her successor as SoS, in all this ?

    It must have driven him nuts to find himself constantly tripping over things that had been discussed only via email and didn’t appear in any formal department memos. Maybe that explains – partly – why he acted as such a total doofus for the first part of his tenure but got better after he took Ms. Clinton into *his* basement for one of those famous Dem “conversations”.

  18. Jim Haygood

    Like mom, like daughter:

    Chelsea Clinton is so unpleasant to colleagues, she’s causing high turnover at the Bill, Hillary and Chelsea Clinton Foundation, sources say.

    Several top staffers have left the foundation since Chelsea came on board as vice chairman in 2011.

    “A lot of people left because she was there. A lot of people left because she didn’t want them there,” an insider told me. “She is very difficult.”

    Chelsea has embraced all the trappings of a corporate CEO, with a personal staff almost as big as her father’s. “He has six. She has five,” said my source.

    A source at NBC, where Chelsea was paid $600,000 a year, said, “If someone wanted to talk to Chelsea about something, they had to go through a producer.”

    AH HA HA HA — “Sorry, I can’t talk to you. Call my producer.”

    The Beverly Clintons: advocating for working folks who don’t have producers.

    1. Arizona Slim

      This characterization fits well with the one that Ron Kessler presents in his books about the Secret Service. “Difficult” would be a good way of describing the relationship that Mr. and Mrs. Clinton have with their protective details.

      1. Jim Haygood

        A close friend of my brother’s worked under Hillary at Rose Law Firm, and got pulled up to the White House with her in 1993. (My bro got a visit from the FBI, doing the obligatory background check on his friend.)

        Now his friend’s a recluse, rarely leaving his house. Maybe he had his own issues. But maybe the ‘beest just psychologically beat the living sh*t out of him, leaving the man an emotional wreck.

        Fortunately he didn’t succumb to the Vince Foster exit strategy.

  19. PaulHarveyOswald

    What is disconcerting to me is this: Suppose HRC wins the nomination, and then wins the general. Further suppose some one on her staff pulls a stunt like this. What is her reaction? “It’s cool, everyone does it. But don’t let it happen again”? I think not. It’s a classic case of the rules not applying to some people. And readers here–like voters every where–are fed up with it.

    1. sd

      Federal policy. Congress could require government issued personal electronic devices with mandatory use of government emails. Though I suppose she could just issue and Executive decree to get around it.

  20. John Horst

    As for whether laws were broken, you don’t need to be a lawyer. The government uses a classified network called the SIPRNET for these kinds of communications, including email. Keeping classified information within this network is its “proper place of custody.” Keeping it outside this network – on a home brew server – simply cannot be anything other than a violation of the law.

    There is an email where Clinton directs a staffer to “remove headings and send non-secure.” This is, all by itself, another felony.

  21. Jess

    One possibility that no one has mentioned is that Hellary won’t get prosecuted because she and Bill know where too many bodies are buried and could take down too many other VIPs in a scorched earth vendetta.


    1. Gaianne


      Certainly they will try that–in fact, clearly they already are: Look at how everyone is moving like they are mired in molasses.

      But will it work? It all depends: It did not work for DC Madam.

      The Lolita flights are now public. That Hillary openly plans to appoint a child abuser (her husband Bill) as her economic advisor, means that she thinks she has the power to simply and publicly brazen it out.

      Does she? That is what we will now see.


  22. Praedor

    How does destroying 30k emails fall into this “loss of defense department data”? Hillary and company deliberately deleted a LOAD of messages even after being made aware that they needed to transfer the info to govt archives (my rough understanding). She cannot simply claim “they were just personal emails” without some sort of evidence to back that up. How do we know she didn’t just delete personal and embarrassing/criminal emails that WERE directly related to her business at State? Some of those emails may tie into the Clinton Foundation money laundering scam since it is clear that she mixed up direct family “business” at the Foundation with favors from State for various nefarious foreign government and corporate entities.

    1. Pavel

      As I read in a comment somewhere, Team Clinton must have deliberated over the “scandal cost” of deleting the 30K emails and announcing they were only “yoga, wedding plans” etc — which is pretty ludicrous on the face of it — or handing them over for review. Their must have been hundreds if not thousands of incriminating stuff (as noted above, probably about Clinton Slush Fund dealings) for them to take the PR hit.

    2. Lambert Strether

      To me, that’s the biggest story of all, and it sure is odd the brainiacs running the investigations on the Republican side focused solely on national security, and never on corruption.

      Presumably, the FBI (and our own intelligence services as well as every other spook palace on the planet) have access to the destroyed email, which would — since it would be irresponsible not to speculate — turn out not to be about yoga and Chelsea’s wedding, but show how Bill did the front-running by collecting for speeches to the Saudis, who were later sold arms through Hillary at State. And so on and on and on. Bill gives a lot of speeches.

      So, Harry Reid this week is telling Sanders to quit, where last week he was telling people to “lay off” him. I’m guessing that’s because the Democrat hive mind has decided Clinton weathered the IG report, and they can drag her over the finish line in Philly.

      If I were a sufficiently vengeful worker bee at the FBI or at State, and I had access to some of that “deleted” email, I might wait ’til after the November election, assuming Clinton wins, and then release it. Then the House Republicans could impeach her. That would be fun.

      1. grayslady

        I’m guessing that’s because the Democrat hive mind has decided Clinton weathered the IG report, and they can drag her over the finish line in Philly.

        I disagree. I think it is just the opposite. Everything I’ve been reading, including yesterday’s piece here about Clinton in freefall, suggests that the leadership is in panic mode, not that the gray hairs believe Hillary has weathered the storm.

        They must have known all along that she was a weak candidate and, initially, I suspect many of them trusted her when she said that her email issue was a non-event. Since Obama and the DNC have made sure there is no bench, they had to rig the system for her. Now they see her favorables plummeting every week, the scandal growing, and Clinton desperately trying to shift attention to Trump, even though Trump is now outpolling her. Unless they pull off the election fraud of the century, it’s also looking like Bernie will win California.

        They need to drag her across the finish line, I agree, but I suspect only to have her assign her delegates to a Plan B choice. They simply can’t take the chance of giving her the nomination and then having the FBI go renegade. There is already talk that if Bernie wins California, many superdelegates will desert Hillary. Too risky for the establishment Dems. That’s the reason for the sudden antagonism toward Bernie. JMO.

        1. Buttinsky

          All perfectly plausible to me. Certainly it’s hard to imagine that even Harry Reid doesn’t realize at this point that there’s a big nasty hairball that will have to be coughed up somehow, somewhere, sometime… with the unpredictability of the damage as scary as anything.

        2. Pavel

          I think the White House, Dem Establishment, and Team Clinton are all in panic mode, and just basically flying by the seats of their collective pants. The first step is to defeat Sanders in California and assure HRC of the nomination (well, in theory). Then they must live day-to-day waiting for the FBI report. Presumably of course Obama and his DoJ have some control over an indictment, but they can’t control FBI staff who might resign in disgust (à la the Saturday Night Massacre, for those of us old enough to remember that event) and/or leak the documents. Must be lots of sleepless nights.

          A sudden Hillary medical emergency would take care of all the problems –well, many of them — but even that would be greeted with some bemusement.

          And to further complicate matters they have wild man Trump on the other side who is throwing more fuel on the fire and ignoring the normal rules of political etiquette.

          What entertainment! Shame the global economy and world peace are affected by the outcome.

    3. Pat

      And even though I don’t disagree with your estimate that there is a great deal of THERE there, do not forget it was Clinton’s lawyers who went through her email and determined what would be released and what would not. And if you are focused on security issues – what was their clearance levels?

      Look, anyone who has looked at the brazen Hillary Victory Fund and DNC/State Committee deal which clearly was a money laundering operation to circumvent FEC donation limit laws has to know that they are such arrogant criminals and hold laws in such contempt that the logical assumption is that they were selling access and providing the wanted response while she was in office.

  23. marku52

    This link is really long but very complete. One of the many astonishing events here is that Sidney Blumenthal emailed HRC from AOL a message that included the name of a spook asset in Libya. He had no clearance to know that and sent the email from an eminently unsecure provider:

    “However, the most incriminating email from Blumenthal to Clinton is a memo where he reveals the name of a CIA intelligence operative in Libya. In a March 2011 memo, Blumenthal wrote “Tyler spoke to a colleague currently at the CIA, who told him the agency had been dependent for intelligence from [redacted due to sources and methods].” Clinton forwarded this email to one of her aides. (“Tyler” is Tyler Drumheller a former CIA operative who left and joined a private consulting firm)

    This is indisputable proof that Hillary Clinton not only possessed classified information, even if it was not marked classified, but willfully transmitted it to others. This information falls under the purview of a 2009 Non-Disclosure Agreement Clinton signed which stipulates that “classified information is marked or unmarked classified information” and would be considered “born classified” information.”

    1. Pavel

      Ironic that it would be Sidney Blumenthal, one of the ur-Clinton insiders and henchmen from back in the Bill Clinton presidency, who might provide the incriminating email. Though I suspect there are many more. All with their greedy fingers in the many pies.

      Speaking of greed and the Clintons, the great Jeffrey St Clair has a report from the early Clinton days in Arkansas in CounterPunch today. (Note that he and the late Alex Cockburn (RIP!) documented many Clinton scandals over the decades.)

      in 1972 Arkansas’s progressive governor, Dale Bumpers, acquired the entire 800-acre property for less than $1000 per acre and turned it into Crater of Diamonds State Park, a lazy, off the tracks destination where tourists could leisurely glean the old fields for diamonds.

      Then along came Bill Clinton. In 1986, Clinton was introduced to a Canadian mining magnate named Jean-Raymond Boulle. The man who connected Clinton and Boulle was none other than James Blair, the legendary Little Rock fixer and Tyson Foods lawyer, who advised Hillary Clinton during her miraculous adventures in the commodities future market, where she quickly turned a $1000 investment into a $100,000 payday. Boulle had a proposition for the governor. He wanted to restart mining at the old site in the Ouachitas, but needed the governor’s help in winning an exemption from rules forbidding commercial mining in state parks. In exchange, Boulle offered, to incorporate his new company, Diamond Fields, in Arkansas and locate its headquarters in the governor’s hometown of Hope.

      The deal was struck, the terms largely negotiated by long-time Clinton consigliere Bruce Lindsay, who would later become the Chair of the Clinton Foundation. This sleazy backroom deal set a pattern that Clinton would mercilessly pursue as president, where the public commons was quietly offered up for exploitation by private enterprises with financial ties to the administration.

      Lurking in the background of this secret deal was a Canadian financial tycoon named Frank Guistra, who owned 60,000 shares of stock in Diamond Fields. Over the years, Clinton and Guistra would become close friends, with Clinton travelling the world in Giustra’s private jet, negotiating mining deals from Kazakhstan to Moscow. As detailed in Peter Schweitzer’s very informative Clinton Cash, Giustra returned the love, donating more than $30 million to the Clinton Foundation.

      –CounterPunch: Diamond Dogs: Clinton Family Jewels

      Some familiar names and entities in that story, from way back in the 1980s. Plus ça change…

  24. hjl

    Did anyone check the WikiLeaks website with the email from Clinton to her assistant telling him to strip the classification off the top of the report she wanted and ship it via the unsecured method.

    The email is their and their is talk that Russia handed it over.

    1. just me

      +1 for mentioning Wikileaks – has anyone correlated these with those? Same time period?

      Been wondering.

  25. Michael C

    Nobody who has written about the Clinton email server has given serious rnough attention to a very important question:

    WHY did she set up a private server?

    She claims that it was nothing deliberate, just an innocent mistake, and one that she will definitely not repeat.

    I will offer you another theory. She did it very deliberately and selfishly. It was to ensure that she would have direct, immediate, and unimpeded access to those emails for writing her memoirs starting the day she left office. If she had used the state department’s email system, it would have been months, maybe years, before she could get redacted copies. If ever.

    That is the most plausible explanation, and if true (I believe it is), it puts the affair in a whole new light.

    It shows where Hillary’s priorities lie.

      1. redleg

        That is a perfectly valid point, but not an excuse for her prima facie violating national security laws.

    1. aab

      That’s too kind to her.

      It seems obvious to me that she did it to facilitate Clinton private enrichment by coordinating contributions/speeches/donations with State Department approvals and deals. She apparently never lived in that house, too, so it wasn’t just to keep it out of the FOIA system, but probably to make it easier for Bill to access everything without being in the email chain.

      Her memoirs are small change, by comparison.

  26. dano

    So it seems that James Comey is one of the most significant players in this election cycle.

  27. ian

    Said this before, but … whether or not setting up the server was illegal is something for the courts and the FBI to sort out, but one thing is indisputable: it was a really goddamn dumb thing to do. After doing something like this, I find it amazing that Clinton can say the Trump lacks the judgment and temperament to be president.

  28. Russell

    Cynically we expect nothing more than what happens now. The main big thing is like the bank with Madoff is upstream into the White House where they had to know & apparently in State, Did.
    It makes The White House culpable as where did they think or know her communications came from?
    You know State wanted to put in their own, or what?
    Then the known deletions final destructions like hammers on chips & thousands of pieces. What Chelsea did it out of her mind with Post Partiaum Depression?
    Are these stories so real as to be surreal dramas of no account?
    We look to the courts for certifications of the stories. If the courts fail us in every case, we know we are being manipulated to live with the corruptions & abuses of these powerful people.
    P.S. It will be interesting to see what comes against USPO Service Banking.

  29. Fiver

    Between the e-mail, the Foundation, the $21 million in ‘speaking fees’ from a truly sordid collection of corporate interests and a stinker of a real record as State Senator and Secretary of State, no candidate in modern US political history has been shown and seen to be so fatally conflicted of interest as is Clinton – she has disqualified herself on all counts and I wish Sanders would actually go for it and force her from the race.

    I’d like to also note re the e-mails made public – I would’ve expected to see a far greater volume of high-level correspondence on a variety of issues given the tumultuous years of her tenure. So it appears to me that some entirely different means of communication must be employed for discussing the bulk of ‘sensitive’ material. From that perspective, the information that has been the focus of much of the attention, on Benghazi and other matters provided by Mr. Blumenthal ought not to be automatically considered as ‘authentic’ – in other words, we’re still seeing only what has been carefully selected and released and what those controlling this process believe will lead us to the conclusion they hope we adopt.

    For example, I find myself becoming increasingly fearful of the efforts to hang the last 15 years of war and terror on Saudi Arabia, or rather, rogue wealthy Saudi financiers sponsoring all manner of global jihad the US is powerless to interdict – I just cannot understand why anyone buys it. Most of the stuff from Blumenthal originated from the US and NATO’s own intelligence agencies’ and friendly media organizations disinformation campaigns (whopper section) for justifying actions that went a million miles beyond what the UN authorized, which was to provide for civilian defense – something the Government of Libya agreed very early on to provide immediately that the attacks stopped. That these particular e-mails were deemed OK to be made public was no accident. As for the Saudis State and Royals, I expect they are acutely aware that the virulently anti-Arab/anti-Islamic propaganda has been ground more than amply prepared for them precisely by the utterly self-defeating, dismal, anti-popular, anti-political tactics of the entity that calls itself ISIS – and should a trip into disaster usher again the winds of wars designed to disintegrate certain Arab and or/Islamic States suddenly shift to target them, it will be a pre-approved, pre-justified and best of all pre-planned war just like the rest of them.

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