Fact-Check: Is it 'clear' Clinton broke the law?

Posted at 2:09 PM, Apr 08, 2016

During a debate among Republicans seeking to be Colorado's U.S. Senate nominee, candidate Jack Graham blasted Hillary Clinton's use of personal email as secretary of state.

"It's clear she's lied to us about her emails, that she's violated national security laws in that regard," Graham, a businessman and former Colorado State University athletic director, said in the Tuesday debate on 9NEWS.

We’re focusing on Graham’s claim that "it’s clear...she violated national security laws."

Questions about whether Clinton mishandled classified information have dogged her frontrunner pursuit of the Democratic presidential nomination.

But what Graham states as a clear-cut fact is very much in dispute. We’ll delve into Clinton’s email problems to explain why.

The media learned in the summer of 2014 that Clinton exclusively used a private email account as secretary of state. That’s when State Department officials were responding to a records request from the House Select Committee on Benghazi. Its members were interested in how Clinton’s email choices may have affected the 2012 terrorist attack on the U.S. diplomatic compound in Libya and its aftermath.   

In July 2015, the inspector generals for the Intelligence Community and the State Department -- both of whom are independent of their respective agencies -- sent what is called a security referral to the Justice Department. A security referral is essentially a notification that classified information might be stored outside of the government’s secure network. In this case, the location was Clinton’s private email server located at her New York home.

FBI agents were assigned to look into the security setup for Clinton’s home email server and a thumb drive that contained copies of Clinton’s work emails.

But what started as a security review soon became an investigation into whether anyone had committed a crime in handling classified information, the New York Times reported, citing multiple, anonymous law enforcement officials.

Clinton has apologized for what happened: "Yes, I should have used two email addresses, one for personal matters and one for my work at the State Department. Not doing so was a mistake. I’m sorry about it, and I take full responsibility."

She has maintained that "nothing I ever sent or received was marked classified at the time."

The situation with Clinton’s email is downright confusing -- for several reasons.

As PolitiFact has reported, federal agencies have the ability to classify information after the fact. So some of the emails weren’t classified when Clinton sent or received them, but they were later classified after a government review.

On top of that, government agencies regularly disagree over what should be classified. Independent inspectors general have said Clinton’s emails contain some classified intelligence information, but the Clinton campaign and the State Department dispute those findings -- saying the information was not classified.

Meanwhile, the State Department has released more than 50,000 of Clinton’s emails, which the public can search on the agency’s website.

Overall, 2,093 of the emails were redacted because they contained some classified details. Most were rated "confidential," the lowest classification level. But the State Department has said that, at the request of intelligence agencies, 22 emails were deemed "top secret," and will not be made public, the Washington Post reported.  

Some of the released emails show Clinton’s State Department team cautiously avoiding emailing each other classified information.

Senior adviser Alec Ross noted in a February 2010 email that he was keeping his comments "within the boundaries of unclassified email… regarding the country we discussed."

But Clinton’s defense that she never sent or received email that was "marked classified at the time" doesn’t wash with Ronald J. Sievert, a former federal prosecutor and with experience in national security issues who now teaches at the University of Texas School of Law.

In a USA TODAY commentary, Sievert called the defense a "smokescreen," saying the relevant federal law "does not even once mention the word ‘classified.’ "

Instead, the law makes it a crime for anyone "entrusted with … any document ... or information relating to the national defense … through gross negligence (to permit) the same to be removed from its proper place of custody," he writes. "The courts have held repeatedly that ‘national defense information’ includes closely held military, foreign policy and intelligence information and that evidence that the information is classified is not necessary for a prosecution."

Few details have become public about the ongoing FBI investigation.

Last month, the Washington Post reported that the Justice Department has granted immunity to a former State Department staffer in exchange for his cooperation in the investigation. The former employee, Bryan Pagliano, installed the email server in Clinton’s New York home in 2009. He also worked on her 2008 presidential campaign.

The Post, citing current and former officials, also reported that FBI agents working to wrap up the investigation in the coming months are likely to want to interview Clinton and her senior aides about the decision to use a private server, how it was set up, and whether any of the participants knew they were sending classified information in emails.

An expert in government secrecy says nothing revealed to date supports Senate candidate Jack Graham’s assertion that "it’s clear" Clinton violated national security laws.

"It is not at all clear that Clinton violated any national security law, and Mr. Graham did not indicate what law he had in mind," said Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists.

"The laws that govern classified information are a patchwork of statutes dating back as long as a century ago (before today's classification system even existed), and their application is often unclear," Aftergood said. "But most of those statutes require criminal intent in order to commit a violation. There is no known evidence of criminal intent on Clinton's part. If Mr. Graham has such evidence, he should immediately provide it to law enforcement officials."

Graham’s campaign manager Dick Wadhams sent us this message when we asked for evidence: "I am confident you are very familiar with this Clinton controversy and by googling ‘Hillary Clinton Email Scandal’ or similar words you will find a multitude of sources that agree with Jack Graham and his statement."

Our ruling

Graham said: "It’s clear ... she violated national security laws."

Hypothetically, the evidence may someday support Graham’s accusation against Clinton. But at this time, there is no clear evidence that Clinton has broken the law. No one has been charged with a crime in this case -- let alone convicted.

Graham goes too far in stating that possibility as fact. We rate his claim False.