Former President Trump is under investigation for a number of possible crimes—e.g., tax evasion, attack on the Capital on Jan. 6, illegal removal or destruction of federal government records. This note, written together with Odell Huff, deals only with the possible crimes in relation to which the FBI raided Trump’s home at Mar-a-Lago. The FBI obtained the search warrant for Mar-a-Lago as part of an investigation into Trump’s handling of presidential documents. The search warrant listed three federal criminal statutes:

• violations of the Espionage Act regarding unauthorized retention of national defense information;
• destroying or concealing records “with the intent to impede obstruct or influence” federal government activity;
• illegal removal or destruction of federal government records (without respect to cause).

See Wikipedia’s extensive report: “FBI search of Mar-a-Lago.”[1]

An immediate outcry from Donald Trump asked why such a raid was needed, claiming it was political, and called for a comparison of the mistreatment of government emails by then Secretary of State Hillary Clinton.

In Hillary Clinton’s case, which is reviewed in more detail in the second half of this note, her improper use of her personal computer for State Department messages, many of which she destroyed, was, in essence, forgiven. The FBI Director James Comey concluded (inappropriately, as it was properly a decision for the Justice Department to make) that: “Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case.”[2]

Donald Trump

Was the raid on a former President justified and should Donald Trump be charged for the crimes he committed?

Executive Summary of Trump’s Document Handling

All documents and communications of American Presidents must be preserved and are the property of the National Archives and Records Administration (NARA). “The Presidential Records Act (44 USC §22) establishes that presidential records belong to the United States and must be surrendered to the Archivist of the United States at the end of a president’s term of office (or second term of office, if consecutive). Unauthorized removal and retention of classified information of the United States government is a criminal offense under U.S. federal law; it has been a felony since the enactment of the FISA Amendments Reauthorization Act of 2017, which was signed into law by President Donald Trump in January 2018 and increased the maximum term of imprisonment for this offense from one year to five years.”[3]

In violation of the Presidential Records Act, “Trump regularly shredded ‘both sensitive and mundane’ papers while at the White House, at Mar-a-Lago, and on Air Force One.”[4] Moreover, upon leaving the White House at the end of his term, Trump sent two vans full of White House material to Mar-a-Lago in what White House aides described as a chaotic rush (as if he didn’t think he would really be leaving).

In May 2021 NARA realized that they had not received all the documents they were required to preserve and began discussions with Trump’s documents team to get them. “Trump reportedly went through the boxes at Mar-a-Lago at the end of 2021…. In January 2022, NARA retrieved 15 boxes of documents, gifts, and other government property from Mar-a-Lago…. From these 15 boxes, archivists and federal agents determined that 184 unique documents (totaling 700 pages) had classification markings, of which 25 documents were marked ‘top secret’, 92 ‘secret’ and 67 ‘confidential’….

Among the more than 11,000 government documents recovered since January 2022, over 100, and possibly over 320, were classified and some included nuclear-related material. The seized documents also included FBI, CIA, and NSA information about national security interests. Two-thirds of the recovered classified material was obtained in the first half of 2022, while the rest (103 documents) was seized in the August search of Mar-a-Lago.”[5]

In short, Trump’s promises to return all of the documents he had illegally taken where not honored and the raid on Mar-a-Lago was a last resort effort to obtain them. It proved to be the only way of obtaining them and was thus necessary and justified.[6]

Trump has clearly violated the Presidential Records Act. He is also guilty of the unauthorized removal and retention of classified information of the United States government. With regard to the second of these crimes—unauthorized removal and retention of classified information—Trump’s claim that he had declassified everything is without merit. “A sitting president has broad Constitutional powers to classify (and declassify) information. However, stemming from claims by former President Trump that documents at Mar-a-Lago were declassified, a Congressional Research Service policy paper on the Mar-a-Lago search warrant highlights that the declassification process is bound by regulations: per 32 CFR §2001.25, it requires markings that are ‘uniformly and conspicuously applied to leave no doubt about the declassified status of the information and who authorized the declassification.’”[7]

We do not yet know whether Trump’s possession of Top Secret and Secret documents has jeopardized our national security.

Should Trump be charged for these crimes?

Donald Trump should be held to the same standards as was Hillary Clinton, who was not charged for her crimes.Clinton’s use of her own computer clearly violated State Department rules and procedures and her resistance and delay in turning over what phone records she didn’t destroy does not reflect well on her to say the least. According to The Washington Post’s Fact Checker, Glenn Kessler, “Clinton, in her tweet, suggests none of her emails were marked classified. That’s technically correct…. Clinton has good reason for making a distinction with Trump.” [8] However, both Kessler and Clinton are technically incorrect because at least three emails were marked with, according to FBI Director Comey, “portion markings,” and another “110 messages contained information that was classified at the time it was sent.”[9]

Nevertheless, Trump’s violations of record keeping requirements were dramatically more numerous and serious. The government-owned documents Trump sent to his Mar-o-Lago residence contained hundreds of conspicuously marked Top Secret, Secret, and Confidential documents, some of which could jeopardize American security and the security of allies (at this writing the official assessment of such potential damage has not been completed). These violations of the law were of an entirely different magnitude than those of Hillary Clinton.

Surely Trump should be indicted for these crimes (separately from whether he should be indicted for his efforts to overturn the election of 2020, Trump University fraud, and/or tax fraud). Equal treatment under the law seems to demand it. Former Presidents should not be above the law. The Justice Department would have to present its case and evidence in a court of law in front of a jury where Trump could defend himself under oath (if he chose to). Especially given the political overtones of the case and the fact that the Attorney General was appointed by Trump’s successor, the case would need to be strong enough to convince the vast majority of American’s that Trump was being treated fairly. 

The pros and cons of charging Trump are explored in more detail in the attached articles.[10]^,[11]

So Garland has a dilemma: Indict or don’t indict. Risk losing or decline to prosecute and let Trump walk away. In concluding that “Donald Trump Is Not Above the Law” and should be indicted, The New York Times acknowledged last month, “Pursuing prosecution of Mr. Trump could further entrench support for him and play into the conspiracy theories he has sought to stoke. It could inflame the bitter partisan divide, even to the point of civil unrest. If viewed as illegitimate, a trial could also further undermine confidence in the rule of law, whatever the eventual outcome.”[12]

Such a trial runs the risk of provoking significant civil unrest (yes, we seem to have sunk so low). It is not impossible that one of the twelve jurors would refuse to convict Trump. Thus, an alternative suggestion is to hold a Grand Jury hearing in which all of the evidence is laid out for all to see, leaving it to voters to determine Trump’s ultimate fate. We would personally prefer to see this dangerous man behind bars.

Chronology

The following is excerpted from the CNN published timeline of the case.[13]

May 2021

An official from NARA contacts Trump’s team after realizing that several important documents weren’t handed over before Trump left the White House. The missing documents include some of Trump’s correspondence with North Korean leader Kim Jong Un, as well as the map of Hurricane Dorian that Trump infamously altered with a sharpie pen.

Fall 2021

NARA grows frustrated with the slow pace of document turnover after several months of conversations with the Trump team. NARA reaches out to another Trump attorney to intervene. The archivist asks about several boxes of records that were apparently taken to Mar-a-Lago during Trump’s relocation to Florida. NARA still doesn’t receive the White House documents they are searching for.

January 2022

After months of discussions with Trump’s team, NARA retrieves 15 boxes of Trump White House records from Mar-a-Lago. The boxes contained some materials that were part of “special access programs,” known as SAP, which is a classification that includes protocols to significantly limit who would have access to the information. NARA says in a statement that some of the records it received at the end of Trump’s administration were “torn up by former President Trump,” and that White House officials had to tape them back together. Not all the torn-up documents were reconstructed, NARA says.

February 9, 2022

News outlets, including CNN, report that NARA asked the Justice Department to investigate Trump’s handling of White House records and whether he violated the Presidential Records Act and other laws related to classified information. The Presidential Records Act requires all records created by a sitting president to be turned over to the National Archives at the end of their administration.

April and May 2022

On April 7, NARA publicly acknowledges for the first time that the Justice Department is involved, and news outlets report that prosecutors have launched a criminal probe into Trump’s mishandling of classified documents. Around this time, FBI agents quietly interview Trump aides at Mar-a-Lago about the handling of presidential records as part of their widening investigation.

April 11, 2022

The FBI asks NARA for access to the 15 boxes it retrieved from Mar-a-Lago in January. The request was formally transmitted to NARA by President Joe Biden’s White House Counsel’s office, because the incumbent president controls presidential documents in NARA custody.

April 29, 2022

The Justice Department sends a letter to Trump’s lawyers as part of its effort to access the 15 boxes, notifying them that more than 100 classified documents, totaling more than 700 pages, were found in the boxes. The letter says the FBI and US intelligence agencies need “immediate access” to these materials because of “important national security interests.” Also on this day, Trump lawyers ask NARA to delay its plans to give the FBI access to these materials. Trump’s lawyers say they want time to examine the materials to see if anything is privileged, and that they are making a “protective assertion of executive privilege” over all the documents.

May 10, 2022

Debra Steidel Wall, the acting Archivist of the United States, who runs NARA, informs Trump’s lawyers that she is rejecting their claims of “protective” executive privilege over all the materials taken from Mar-a-Lago, and will therefore turn over the materials to the FBI and US intelligence agencies. In a four-page letter, Wall says she reached this decision after consulting with top lawyers from the Justice Department and the White House Counsel’s office.

May 11-12, 2022

The Justice Department subpoenas Trump, seeking documents with classification markings that are still at Mar-a-Lago. Trump directs his staff to search for any remaining classified material, to comply with the subpoena, according to a lawsuit he later filed.

News outlets report that investigators subpoenaed NARA for access to the classified documents retrieved from Mar-a-Lago. The subpoena, which is part of the process to allow investigators to take possession of the documents from the NARA, is the first public indication of the Justice Department using a grand jury in its investigation.

June 2-3, 2022

According to a lawsuit the former President later filed, Trump invites FBI officials to come to Mar-a-Lago to retrieve the subpoenaed materials.

Four investigators, including a top Justice Department counterintelligence official, visit Mar-a-Lago seeking more information about classified material that had been taken to Florida. The four investigators meet with Trump’s attorneys and look around the basement room where the documents are being stored. Trump briefly stops by the meeting to say hello to the officials, but he does not answer any questions. During the meeting, the federal officials deal with the grand jury subpoena for some of the sensitive national security documents on the premises, and they take away the subpoenaed documents. At some point later in June, a Trump lawyer sends a letter to the Justice Department inaccurately asserting that there aren’t any more classified documents at Mar-a-Lago.

June 8, 2022

Trump’s attorneys receive a letter from federal investigators, asking them to further secure the room where documents are being stored. In response, Trump aides add a padlock to the room in the basement of Mar-a-Lago.

June 24, 2022

Federal investigators serve a subpoena to the Trump Organization, demanding surveillance video from Mar-a-Lago. Trump’s company complies with the subpoena and turns over the footage. CNN has reported that this was part of an effort to gather information about who had access to areas at the club where government documents were stored.

August 8, 2022

The FBI executes a search warrant at Mar-a-Lago—a major escalation of the classified documents investigation. The search focused on the area of the club where Trump’s offices and personal quarters are located. Federal agents remove boxes of material from the property. The search was the first time in American history that a former president’s home was searched as part of a criminal investigation.

August 11, 2022

Trump sends a message through one his lawyers to Attorney General Merrick Garland, saying he has “been hearing from people all over the country about the raid” who are “angry,” and that “whatever I can do to take the heat down, to bring the pressure down, just let us know,” according to a lawsuit he later filed. Hours later, after three days of silence, Garland makes a brief public statement about the investigation. He reveals that he personally approved the decision to seek a search warrant, and that the Justice Department will continue to apply the law “without fear or favor.” Garland also pushes back against what he called “unfounded attacks on the professionalism of the FBI and Justice Department.” Garland also announces that the Justice Department will ask a judge to unseal some of the search warrant documents, for the sake of transparency.

August 12, 2022

Federal Magistrate Judge Bruce Reinhart approves the unsealing of the Mar-a-Lago search warrant and its property receipt, at the Justice Department’s request and after Trump’s lawyers agree to the release. The warrant reveals the Justice Department is looking into possible violations of the Espionage Act, obstruction of justice and criminal handling of government records, as part of its investigation.

August 22, 2022

Trump files a federal lawsuit seeking the appointment of a third-party attorney known as a “special master” to independently review the materials that the FBI seized from Mar-a-Lago. In the lawsuit, Trump’s lawyers argue that the Justice Department can’t be trusted to do its own review for potentially privileged materials that should be siloed off from the criminal probe.

August 27, 2022

Federal District Judge Aileen Cannon, a Trump appointee who is presiding over Trump’s civil lawsuit, announces her “preliminary intent” to appoint a special master to examine the seized Mar-a-Lago materials.

September 1, 2022

Federal prosecutors clash with Trump’s lawyers at a high-stakes court hearing in Palm Beach, Florida, as part of Trump’s lawsuit seeking the special master appointment.

September 5, 2022

In a major ruling, Cannon grants Trump’s request for a special master to review the seized materials from Mar-a-Lago. She says the special master will have the power to look for documents covered under attorney-client privilege and executive privilege. The outcome is a major victory for Trump.

September 8, 2022

The Justice Department appeals Cannon’s decision in the special master case. Prosecutors also ask Cannon to temporarily block two key parts of her ruling while their appeal plays out: First, the part where she blocked the Justice Department from using any of the seized materials in their criminal probe while the materials were being reviewed by the special master, and second, the part of her ruling that required the Justice Department to hand over classified documents to the special master.

Hillary Clinton

Executive Summary of Hillary Clinton Email Controversy

During her tenure as United States Secretary of State (2009-2013) and later as the 2016 Democratic Presidential Candidate, Hillary Clinton drew controversy by using a private email server while Secretary of State for public communications rather than using official State Department email accounts maintained on federal servers. Clinton’s server was found to hold over 100 emails containing classified information, including 65 emails deemed “Secret” and 22 deemed “Top Secret.” An additional 2,093 emails not marked classified were retroactively designated confidential by the State Department.[14]

At the very beginning of her tenure as Secretary, the Bureau of Diplomatic Security had warned Clinton about the vulnerabilities of her use of a BlackBerry along with a private server, but Clinton ignored it and the Bureau took no action. While members of the Administration knew that Clinton used a private email address (clintonemail.com), no one outside of the State Department, certainly not President Obama, knew that she was using a private server maintained in her home by a private computer services firm. In October 2014, the State Department asked all previous Secretaries of State for all documents related to their time in office. Clinton responded in December 2014 by delivering 55,000 printed pages of emails that had been housed only on her server and its privately maintained backups (but with no copies of such correspondence in State Department records, as required by policy and by law). Omitted were over 30,000 emails she decided were personal. Federal rules required Clinton to preserve work emails before she left office, but she did not turn over her emails until 21 months after she left office. That Clinton used her private server exclusively for official work was not made public until March 2015 (more than two years after she left office), when The New York Times reported that the House Select Committee on Benghazi made the discovery.

The inspector general of the intelligence community reviewed the hardcopies delivered by Clinton and found “hundreds of potentially classified emails.” A “security referral” (but not criminal), to the Justice Department was made in late July 2015. Clinton and her private computer services companies finally relinquished the actual hardware servers and thumb drives to the FBI in August 2015. Clinton’s lawyer David E. Kendall said that emails, and all other data stored on the server, had earlier been erased prior to the device being turned over to the authorities.

Clinton repeatedly stated that her private server was “allowed by the State Department,” and that she never handled anything marked classified through her server. She repeatedly stated during her campaign that turning over 55,000 printed pages and then the hardware to the government “shows that I have been as transparent as I could.”

In May 2016, the Department’s Office of the Inspector General Steve A. Linick released an 83-page report about the State Department’s email practices. Aside from security risks, the report stated that “[Clinton] did not comply with the Department’s policies that were implemented in accordance with the Federal Records Act.” Each of these findings contradicted what Clinton and her aides had been saying up to that point. The FBI, through statements by Director Comey, later determined “Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case.”

My own conclusion is that while Secretary of State, Hillary Clinton deliberately and knowingly violated State Department policy by exclusively using a private server to conduct public as well as private business. While there is no evidence her intention was to specifically mishandle classified information, the clear intent was to retain control (delete forever) anything that could be harmful to her expected campaign for president, classified or not. By submitting 55,000 printed pages of official emails, after having deleted over 30,000 emails she alone decided were personal, and then not turning over the (totally erased) hard drives and thumb drives until almost a year later, she successfully circumvented both FOIA and the Presidential Records Act in order to advance and protect her campaign. The world will never know what she erased, only some of which was only partially recovered after forensic analysis of the scrubbed hardware.

Chronology

The following chronology focuses on requests for cooperation with the investigation of her email practices from Secretary and then Presidential Candidate Clinton and her responses. This review largely draws on the cited Wikipedia article and includes other sourced information.

2009 – 2013

At the outset of her tenure as Sec of State, setting up a secure desktop computer in her office was suggested, but Clinton was unfamiliar with their use and opted for the convenience of her BlackBerry, not the State Department and government protocol of a secured desktop computer. Efforts to find a secure solution were “abandoned by Clinton,” and she was warned by State Department security personnel about the vulnerability of an unsecured BlackBerry to hacking. She affirmed her knowledge of the danger, and was reportedly told that the Bureau of Diplomatic Security had obtained intelligence about her vulnerability while she was on a trip to Asia, but continued to use her BlackBerry outside her office. For the first two months of its use – January 2009 through March 29, 2009 – the web page [sign-in portal for users to access the server] was reportedly not secured with a TLS certificate, meaning that information transmitted using the service was unencrypted and may have been vulnerable to interception.

December 2012 – March 2013

Near the end of Clinton’s term, a nonprofit group called Citizens for Responsibility and Ethics in Washington (CREW), filed a FOIA request seeking records about her email. CREW received a response in May 2013: “no records responsive to your request were located.” Emails sent to Clinton’s private clintonemail.com address were first discovered in March 2013, when a hacker named “Guccifer” widely distributed emails sent to Clinton from former President Bill Clinton aide Sidney Blumenthal, which Guccifer obtained by illegally accessing Blumenthal’s email account. The emails dealt with the 2012 Benghazi attack and other issues in Libya and revealed the existence of her clintonemail.com address.

October – December 2014

In October 2014, the State Department sent letters to Clinton and all previous Secretaries of State back to Madeleine Albright requesting emails and documents related to their work while in office. On December 5, 2014, Clinton lawyers delivered 12 file boxes filled with printed paper containing more than 30,000 emails rather than their easier to analyze original electronic version. Clinton withheld almost 32,000 emails deemed to be of a personal nature. Datto, Inc., which provided data backup service for Clinton’s email, agreed to give the FBI the hardware that stored the backups.

March 2015

A March 2, 2015, New York Times article broke the story that the Benghazi panel had discovered that Clinton exclusively used her own private email server rather than a government-issued one throughout her time as Secretary of State, and that her aides took no action to preserve emails sent or received from her personal accounts as required by law.

After the existence of the server became publicly known on March 2, 2015, the Select Committee on Benghazi issued a subpoena for Benghazi-related emails two days later. Clinton chief of staff Cheryl Mills sent an email to PRN [Clinton’s computer services provider, Platte River Networks] on March 9 mentioning the committee’s retention request. The PRN technician then had what he described to the FBI as an “oh shit moment,” realizing he had not set the personal emails to be deleted as instructed months earlier. The technician then erased the emails using a free utility, BleachBit, sometime between March 25 and 31.

At a March 10, 2015 press conference, Clinton said all personal emails were deleted from her server, and she rejected the suggestion that she turn her server over to an “independent arbiter” to prove that she did not destroy any work-related emails and that “the server will remain private.”[15] The Clinton campaign said that she complied with NARA regulations because “more than 90% of those emails should have already been captured in the State Department’s email system before she provided them with paper copies.”

On March 27, 2015, Republican Congressman Trey Gowdy, Chairman of the Select Committee on Benghazi, asserted that sometime after October 2014, Clinton “unilaterally decided to wipe her server [which remained in her possession at that time] clean” and “summarily decided to delete all emails.” Clinton’s attorney, David E. Kendall, said that day that an examination showed that no copies of any of Clinton’s emails remained on the server. Kendall said the server was reconfigured to only retain emails for 60 days after Clinton lawyers had decided which emails needed to be turned over.

April 2015

Dan Metcalfe, a former head of the Justice Department’s Office of Information and Privacy, said this [exclusive use of a private server] gave her even tighter control over her emails by not involving a third party such as Google and helped prevent their disclosure by Congressional subpoena. He added: “She managed successfully to insulate her official emails, categorically, from the FOIA, both during her tenure at State and long after her departure from it—perhaps forever,” making it “a blatant circumvention of the FOIA by someone who unquestionably knows better.” (According to State Department spokesperson Marie Harf, use by government officials of personal email for government business is permissible under the Federal Records Act, so long as relevant official communications, including all work-related emails, are preserved by the agency.)

June – August 2015

On June 22, 2015, the Benghazi panel released emails between Clinton and Sidney Blumenthal, who had been recently deposed by the committee. Committee chairman Gowdy issued a press release criticizing Clinton for not providing the emails to the State Department. Clinton had said she provided all work-related emails to the State Department, and that only emails of a personal nature on her private server were destroyed. The State Department confirmed that 10 emails and parts of five others from Sidney Blumenthal regarding Benghazi, which the committee had made public on June 22, could not be located in the Department’s records, but that the 46 other, previously unreleased Libya-related Blumenthal emails published by the committee, were in the Department’s records. In response, Clinton campaign spokesman Nick Merrill, when asked about the discrepancy said: “She has turned over 55,000 pages of materials to the State Department, including all emails in her possession from Mr. Blumenthal.” Republican Committee members found emails that Clinton failed to produce. Clinton campaign staff accused Gowdy and Republicans of “clinging to their invented scandal.”

A June 29, 2015, memorandum from the Inspector General of the State Department, Steve A. Linick, said that a review of the 55,000-page email release found “hundreds of potentially classified emails.” A July 17, 2015, follow-up memo, sent jointly by Linick and the Intelligence Community (IC) inspector general, I. Charles McCullough III, to Under Secretary of State for Management Patrick F. Kennedy, stated that they had confirmed that several of the emails contained classified information that was not marked as classified, at least one of which was publicly released. On July 24, 2015, Linick and McCullough said they had discovered classified information on Clinton’s email account. Investigators from their office, searching a randomly chosen sample of 40 emails, found four that contained classified information that originated from U.S. intelligence agencies, including the Central Intelligence Agency (CIA) and the National Security Agency (NSA). Their statement said that the information they found was classified when sent, remained so as of their inspection, and “never should have been transmitted via an unclassified personal system.” Clinton’s presidential campaign and the State Department disputed the letter, and questioned whether the emails had been over-classified by an arbitrary process. According to an unnamed source, a secondary review by the CIA and the National Geospatial-Intelligence Agency endorsed the earlier inspectors general findings concluding that the emails (one of which concerned North Korea’s nuclear weapons program) were “Top Secret” when received by Clinton through her private server in 2009 and 2011, a conclusion also disputed by the Clinton campaign.

The inspector general of the intelligence community said her emails contained classified information and made a “security referral” to the Justice Department in late July 2015. Clinton directed her campaign in mid-August to turn over her computer server to the FBI. Clinton said her personal email account was “allowed by the State Department.” Federal rules required Clinton to preserve work emails before she left office, but she did not turn over her emails until 21 months after she left office. Clinton said “turning over my server” to the government shows “I have been as transparent as I could” about her emails.

Clinton’s IT contractors turned over her personal email server to the FBI on August 12, 2015, as well as thumb drives containing copies of her emails. In a letter describing the matter to Senator Ron Johnson, Chairman of the Senate Homeland Security Committee, Clinton’s lawyer David E. Kendall said that emails, and all other data stored on the server, had earlier been erased prior to the device being turned over to the authorities, and that both he and another lawyer had been given security clearances by the State Department to handle thumb drives containing about 30,000 emails that Clinton subsequently also turned over to authorities.

September 2015

Bloomberg News reported in September 2015 that the FBI had recovered some of the deleted emails. Since this episode, Clinton critics have accused her or her aides of deleting emails that were under subpoena, alleging the server had been “bleached” or “acid-washed” by a “very expensive” process in an effort to destroy evidence.

October 2015

On October 22, 2015, Clinton testified before the committee and answered the Select Committee on Benghazi members’ questions for eleven hours before the Committee in a public hearing. The New York Times reported that “the long day of often-testy exchanges between committee members and their prominent witness revealed little new information about an episode that has been the subject of seven previous investigations … Perhaps stung by recent admissions that the pursuit of Mrs. Clinton’s emails was politically motivated, Republican lawmakers on the panel for the most part avoided any mention of her use of a private email server.”

February 2016

Clinton maintained she did not send or receive any confidential emails from her personal server. In a Democratic debate with Bernie Sanders on February 4, 2016, Clinton said, “I never sent or received any classified material.” This statement was false, as had been clearly stated earlier by the inspector general of the security community in July 2015.

May 2016

In May 2016, the Department’s Office of the Inspector General Steve A. Linick released an 83-page report about the State Department’s email practices. Aside from security risks, the report stated that “she did not comply with the Department’s policies that were implemented in accordance with the Federal Records Act.” Each of these findings contradicted what Clinton and her aides had been saying up to that point. The report also stated that Clinton and her senior aides declined to speak with the investigators, while the previous four Secretaries of State did so.

June – July 2016

In various interviews, Clinton has said that “I did not send classified material, and I did not receive any material that was marked or designated classified.” However, in June and July 2016, a number of news outlets reported that Clinton’s emails did include messages with some paragraphs marked with a “(c)” for “Confidential.” The FBI investigation found that 110 messages contained information that was classified at the time it was sent. Sixty-five of those emails were found to contain information classified as “Secret;” more than 20 contained “Top-Secret” information. Three emails, out of 30,000, were found to be marked as classified, although they lacked classified headers and were only marked with a small “c” in parentheses, described as “portion markings” by FBI Director Comey. Comey added it was possible Clinton was not “technically sophisticated” enough to understand what the three classified markings meant which is consistent with Clinton’s claim that she wasn’t aware of the meaning of such markings.

In a Meet the Press interview on July 2, 2016, she stated: “Let me repeat what I have repeated for many months now, I never received nor sent any material that was marked classified.”

On July 5, 2016, FBI Director Comey announced in a statement he read to press and television reporters at FBI headquarters in Washington, DC, that the FBI had completed its investigation and was referring it to the Justice Department with the recommendation “that no charges are appropriate in this case.” He added, “Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case.” With regard to mishandling of classified information, Comey said, “there is evidence that they [Clinton and her team] were extremely careless in their handling of very sensitive, highly classified information.” The investigation found 110 emails that should have been regarded as classified at the time they were sent; another 2,000 emails were retroactively classified which means they were not classified at the time they were sent. Comey said that “any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding … should have known that an unclassified system was no place for that conversation.”

June 2017

On June 23, 2017, several members of the Senate Judiciary Committee opened a bipartisan inquiry into whether former Attorney General Lynch interfered in the FBI’s investigation into Hillary Clinton’s use of a private email server. The investigation found Clinton’s use of personal email server increased the risk of compromising State Department information, but “there was no persuasive evidence of systemic, deliberate mishandling of classified information.”

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[1] Wikipedia contributors, “FBI search of Mar-a-Lago,” Wikipedia, The Free Encyclopedia, https://en.wikipedia.org/w/index.php?title=FBI_search_of_Mar-a-Lago&oldid=1109931185 (accessed September 10, 2022).

[2] Wikipedia contributors, “Hillary Clinton email controversy,” Wikipedia, The Free Encyclopedia, https://en.wikipedia.org/w/index.php?title=Hillary_Clinton_email_controversy&oldid=1104229653 (accessed August 10, 2022).

[3] Op. cit. Wikipedia, “FBI Search of Mar-a-Lago.”

[4] Ibid.

[5] Ibid.

[6] CNN, “Bill Barr ‘skeptical’ Trump declassified Mar-a-Lago papers,” YouTube video, 6:38, Sept. 3, 2022, https://www.youtube.com/watch?v=5zJUge5hdzo.

[7] Wikipedia, “FBI Search of Mar-a-Lago.”

[8] Kessler, Glen. “Hillary Clinton’s claim that ‘zero emails’ were marked classified,” Sept. 8, 2022, The Washington Post, https://www.washingtonpost.com/politics/2022/09/08/hillary-clintons-claim-that-zero-emails-were-marked-classified/.

[9] Wikipedia, “Hillary Clinton email controversy.”

[10] Linker, Damon, “The Case Against Prosecuting Donald Trump,” Persuasion, Sept. 2, 2022, https://www.persuasion.community/p/the-case-against-prosecuting-donald?utm_source=email.

[11] Shugerman, Jed, and Rozenshtein, Alan Z., “The Case for Prosecuting Donald Trump,” Persuasion, Aug. 31, 2022, https://www.persuasion.community/p/the-case-for-prosecuting-donald-trump?utm_source=email.

[12] Zurin, James D., “Indict Trump Over the Mar-a-Lago Documents? Don’t Indict? There’s a Third Option.” Washington Monthly, Sept. 7, 2022, https://washingtonmonthly.com/2022/09/07/indict-trump-over-the-mar-a-lago-documents-dont-indict-theres-a-third-option/.

[13] Cohen, Marshall et al, “Timeline: The Justice Department criminal inquiry into Trump taking classified documents to Mar-a-Lago,” CNN, Sept. 8, 2022, https://www.cnn.com/2022/08/09/politics/doj-investigation-trump-documents-timeline/index.html.

[14] Wikipedia, “Hillary Clinton email controversy.”

[15] Kiely, Eugene. “More Spin on Clinton Emails.” FactCheck.org, 8 September 2015. www.factcheck.org/2015/09/more-spin-on-clinton-emails/. Accessed 13 August 2022.