FBI agents who investigated Hillary Clinton’s emails collected significant evidence that she and her team deliberately violated federal record-keeping laws. Clinton’s use of a private email and server through which to conduct State Department business evaded automatic capture by government servers, preventing public scrutiny via Freedom of Information Act requests.
Federal government sources told Circa that Clinton and her team were warned repeatedly of legal and security risks associated with their email conduct.
Also FBI Director James Comey publicly advised against the filing of criminal charges against Hillary Clinton and her aides, the sources told Circa that the FBI deferred to the State Department on whether or not to recommend any prosecutions to the Justice Department.
The Federal Records Act requires that all documents pertaining to federal government business - including those transmitted via private email - be preserved and turned over the federal government. Other federal law make it a felony to intentionally conceal, remove or destroy federal records, punishable with a fine and imprisonment of up to three years.
Any violator of the Federal Records acts "shall forfeit his office and be disqualified from holding any office under the United States."
A source with direct knowledge of the FBI’s investigation told Circa that the FBI “indirectly documented hundred, and likely thousands, of violations of the Records Act.”
The FBI recovered about 15,000 emails from Clinton’s private email account relating to government business using forensics, sources said. Most of the emails had not been turned over to the government by either Clinton or her aides.
Rep. Trey Gowdy (R-SC) said last week that Clinton’s team had used special software named BleachBit to destroy data and prevent its recovery.
A source also told Circa that Clinton’s circumvention of automatic government capture of her emails was “systemic and intentional.”
Circa’s sources said that the FBI secured testimony and documents indicating that Clinton’s team:
- Was informed in 2009 that she had an obligation under the records law to forward any government-related records contained in private email to a new record preservation system known as SMART but chose not to do so because her office wanted to keep control over "sensitive" messages
- Was specifically questioned by a technical worker who was involved with her private email server in the Clinton family home in New York whether the arrangement was appropriate for a government official under the federal records law. The worker was assured there were no problems.
- Wanted to keep her private Blackerry email service because of fears a government email address would be subject to public scrutiny under the Freedom of Information Act.
- Was aware that government officers complying with FOIA requests did not have access to search Mrs. Clinton's private email for responsive records.
- Persisted in allowing her to use private email to conduct State Department business even after a cable was sent under her name in 2011 to all diplomats worldwide urging them to stop using private email because of foreign hacking fears.
- Allowed Clinton to keep using the private email system after after she personally received a 2011 presentation warning of dangers of the private email for government business.
- Had prior reason from earlier legal cases involving their conduct to know that emails covering government business were legally required to be preserved and turned over to their agency and the National Archives.
- Failed to preserve private emails from Clinton that clearly involved significant government business, including discussions with Army Gen. David Petraues, the Benghazi tragedy, meeting requests with foreign leaders and the State Department's quadrennial policy and performance review.
Asked if Clinton complied with State Department policies and Federal record keeping laws during a congressional oversight hearing in July, Comey said, “I don’t think so. I know you have the State inspector general here, who’s more of an expert on all the department’s policies, but at least in some respect, no.”
Also in July, Attorney General Loretta Lynch claimed that she did not know if violations of the Federal Records Act were investigated by the FBI in its investigations of Clinton’s emails. "I don't know if that was under the purview of the investigation. I don't recall a specific opinion on that,” said Lynch.
Clinton aide Bryan Pagliano pled the Fifth Amendment while being questioned by a congressional committee and during a deposition with Judicial Watch in relation to his role in setting up Clinton’s private email account and server.
An information management employee at the State Department was scolded after raising concerns that Clinton’s email apparatus likely violated the Federal Records Act.
FBI agents also found reasons to believe Clinton was well aware of the security and legal dangers of her email conduct:
- In 2009, Mrs. Clinton and her chief of staff were briefed in a classified memo from the Assistant Secretary for Diplomatic Security on the security dangers of private Blackberry service and the secretary of state responded to that official a few days later that she "gets it."
- Mrs. Clinton received a second classified email in March 2011 about foreign government hacking attempts specifically aimed at State Department officials. The memo included this warning: "We also urge Department users to minimize the use of personal Web email for business" citing evidence of "compromised home systems." A version of that briefing was found in Mrs. Clinton's personal files at State.
- In June 2011, a cable entitled "securing personal email accounts" was sent to all U.S. diplomatic posts worldwide under Clinton's own name that highlighted growing cybersecurity threats and specifically warned "to avoid conducting official department business from your personal email accounts."
- By that time, officials maintaining Mrs. Clinton's private email server had detected attempts to hack into it but still she persisted in using the private email to conduct government business.
Upon assuming her role as head of the State Department in 2009, Clinton signed an nondisclosure agreement (NDA). The NDA stipulates that "unauthorized disclosure, unauthorized retention, or negligent handling of classified information... could cause damage or irreparable injury to the United States or could be used to advantage by a foreign nation."
The NDA also indicates that "any breach of [the agreement] may result in the termination of any security clearances I hold; removal from any position of special confidence and trust requiring such clearances; or termination of my employment or other relationships with the Departments of Agencies that granted my security clearance or clearances."
The NDA includes a provision connected to criminal liability: "Unauthorized disclosure of classified information... may constitute a violation, or violations, of United States criminals laws."
H/T John Solomon and Kellan Howell at Circa
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