I've read many articles on Hillary's email issue. To me, it seems like she was just a bit careless and she has no bad intentions, and the FBI knows that. So why is it that the FBI is so persistent on further investigation to this case?
Why is the FBI making such a big deal out Hillary Clinton's private email server?
- Violated laws and rules by using personal email server
- Performed actions that risked classified information being exposed
- Violated laws and rules by deleting emails (importantly, by violating Freedom of Information Act, basically eliminating ability for citizens to determine if she did anything wrong)
Executive Order 13526 and 18 U.S.C Sec. 793(f) of the federal code make it unlawful to send or store classified information on personal email.
Section 1236.22 of the 2009 National Archives and Records Administration (NARA) requirements states that: “Agencies that allow employees to send and receive official electronic mail messages using a system not operated by the agency must ensure that Federal records sent or received on such systems are preserved in the appropriate agency record keeping system.”
Violation of the Freedom Of Information Act (FOIA)
Veterans for a Strong America has filed a lawsuit against the State Department over potential violations of FOIA. Joel Arends, chairman of the non-profit group, explained to the Washington Examiner that their FOIA request over the Benghazi affair specifically asked for any personal email accounts Secretary Clinton may have used: “'At this point in time, I think we're the only ones that specifically asked for both her personal and government email and phone logs,' Arends said of his group's Benghazi-related request.”
she has no bad intentions
First of all, they do not know that 100%. Absent a functional mind-reading technology, knowing someone's intentions with certainty is impossible.
Having said that, there is absolutely no legitimate excuse for a government official to set up a private email server for their work. Anyone in that position ought to just use corporate (government in this case) email, the way 99% of the American workforce who emails do - there's just zero reason not to.
 - Yes, i'm aware that some people make an argument that the "reason" was "government-issued blackberry can only use one email account". However, she didn't need to use a second work-related account; and no government regulation prohibits having a personal cell phone for access to personal email, therefore this does not constitute legitimate excuse. "I Wanna, and it's more convinient" is an excuse that is not legitimate even for teenagers, never mind government officials.
For reference, in many industries, sending material non-public information over non-corporate email is grounds for termination for cause.
More importantly, commission of a crime is not contingent on intentions. If I go, and with good intentions, commit a crime, I would still get arrested and convicted (although in some cases, intentions might impact on the sentencing, they do not impact on the verdict).
Setting aside the question of whether Clinton is legally culpable, the FBI has confirmed that the servers constituted a data spill of classified information, the extent of which is presumably currently classified. One of the FBI's duties is investigation and mitigation of domestic data breaches and spills, which can take a significant amount of time and manpower depending on the scope of the spill, far beyond the decision to take legal action against the person who caused the spill.
There are two distinct problems that exist here: the use of a private email server to execute the business of the Department of State and the introduction of classified material into an unclassified system. Each must be addressed in apart from the other.
Use of a Personal Server
While not inherently illegal, there is a significant appearance of impropriety in using a system segregated from the government information architecture to perform the official work of the State Department. While she was Secretary Clinton, the use of a private email server acted as a bulwark against Freedom of Information Act requests. Additionally, since she failed to turn over her records promptly on departure from office, she didn't meet the Requirements of the Federal Records Act.
Spillage of Classified Material
This is independent from the use of a private email server. It would be a violation of applicable doctrine to introduce the same information onto an unclassified Government System. The reproduction of classified material, whether transcribed from gained knowledge into emails, scanned from hard copy, or some how digitally transferred across the air gap between classified and unclassified systems, is wrong regardless of the lack of classified marking. Classified material does not become unclassified if produces fail to append the appropriate markings or allow it to exist unreported on an unclassified system.
Why the FBI cares
Failure to abide by applicable doctrine is a problem within the FBI's bailiwick. Further, the highlighted systemic problem in properly handling classified material within the State Department also must be addressed. Were we not on the cusp of an election, there would be less strife over the ongoing investigation.
To me, it seems like she was just a bit careless and she has no bad intentions, and the FBI knows that.
She was rather a lot careless. Here's what Comey said when he recommended not to prosecute:
there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.
Note the word "extremely" in that, not "just a bit".
To be clear, this is not to suggest that in similar circumstances, a person who gauged this activity would gauge no consequences. To the contrary, those individuals are often subject to security or administrative sanctions but that is not what we are deciding now.
So after he said that a prosecution was not supported by the current evidence (which others dispute), he pointed out that this was still a serious violation. Note that security sanctions could include loss of the security clearance, and administrative sanctions could include loss of the job.
She had a legal responsibility to familiarize herself with the rules for handling classified material so that she could process it responsibly. She failed to do that, not even being able to recognize material marked with a C (for Confidential) as classified material. At one point, she requested that the classified markers be removed from a document and had it sent insecurely (via fax not email; the email contained the instructions).
Presidents can access classified material
Presidents have to be able to access classified material, which would normally require a security clearance. However, Hillary Clinton might not get a security clearance now due to her previous failure. The only jobs with access to classified material that she could possibly get without a security clearance would be president or vice-president.
This is rather a big deal and doesn't require further investigation to establish. It's a known fact that her handling of classified material was not up to standard.
The new emails could show
The new emails could include statements that contradict the testimony that Huma Abedin gave previously. Or they could contain classified information that Anthony Weiner could have accessed (since he shared use of the device with his spouse, Huma Abedin). Or they could contain absolutely nothing not already seen. That's why they do an investigation to determine what impact these emails would have on the previous investigation. The investigation won't necessarily show anything, but finding additional information that could be pertinent still requires an investigation.
Why Comey had to tell Congress
Previously, Comey had testified to Congress (under oath), that the investigation was closed. That had become untrue. As a result, Comey said that he felt it necessary to notify Congress.
Note that if he hadn't notified Congress, it is quite possible that one of his agents would have felt that it was necessary to share that information, either with Congress or the media. Then he would have reopened the investigation (which Democrats hate), allowed a leak (which no one likes), and failed to notify Congress (which Republicans would have hated). Or the information could come out after the election, which would really annoy Republicans and leave Democrats unhappy at the reopening of the investigation.
At least this way, he's only hated by Democrats. And their complaints are somewhat limited in that he only notified Congress. It was Republicans in Congress that made that information public, not Comey.
Why is the FBI making such a big deal out Hillary Clinton's personal email server?
They aren't presently.
Or at least, they don't appear to be anymore, even with recent events.
They were doing their job by investigating the issue, which was then a "big-deal", but they completed their investigation in July, stating:
no charges are appropriate in this case
At present, that statement is still the official position of the FBI.
Since originally posting this answer, recent events in relation to the emails the FBI was reviewing in respect to an investigation into Mr. Weiner have concluded. The FBI reported that no new relevant emails were found, and their previous conclusion still stands.
In-fact, NBC reports that nearly all of those emails were actually duplicates.
A senior law enforcement official confirmed to NBC News that nearly all of the thousands of newly examined emails on Weiner's laptop were duplicates of emails already seen by the team investigating Clinton's server. [...]
There were unseen emails, the official said, but they were unrelated to government business.
The new letter indicates that the FBI's review is completed. Neither Comey nor the FBI are expected to release any other statements.
What are these new emails?
In an unrelated case, specifically an investigation into Mr. Weiner, some of the emails found on a laptop belonging to Mr. Weiner are thought to possibly have some relevance to their completed investigation into Hillary's use of a personal email server. However at this point, it has not been made clear what these emails would be, or why they would be on this person's laptop.
But that's about where the current news ends. The FBI has not yet even reviewed these emails to know if there are even new emails they have not previously reviewed. For reference: New York Times article, referencing a letter by the FBI
So it seems the real question is:
Why are they making an announcement that they might have new information to investigate?
Also a very good question, one asked by many in politics, both Democrats and Republicans. It seems that FBI Director James Comey decided to send a letter to Congress to notify them that they may have access to new information without knowing what it is, against the advice of Senior Justice Department officials.
At this point it should be noted that the FBI does not normally make announcements on ongoing investigations, and many have criticized him for breaking this precedent in this case. It is still unclear if he intended to meddle in the election or not, or if he has further intentions.
So has the investigation been reopened?
Though there are certainly those trying to spin it to seem like it has, the investigation into the use of a personal email server in respect to classified information has not been reopened, and unless there is significant new evidence found, there's no reason to expect it will be.
So why is this unsubstantiated find in the media?
Not surprisingly, the Republican presidential campaign has jumped at this tidbit the FBI has dropped. The subject of the email server has been a recurring topic throughout the campaign, despite the conclusions of the justice system. This unsubstantiated bit of information is being used to try to validate what has essentially been dead horse beating, again with no knowledge as to what is even contained in these emails.
So what was the big deal with the emails before? Why was she being investigated?
She was being investigated for possible violations of the storage of classified information.
Our investigation looked at whether there is evidence classified information was improperly stored or transmitted on that personal system, in violation of a federal statute making it a felony to mishandle classified information either intentionally or in a grossly negligent way, or a second statute making it a misdemeanor to knowingly remove classified information from appropriate systems or storage facilities.
Note that they are not investigating if classified information was stored, just if it was mishandled intentionally, or in a grossly negligent way. In this case, intent and gross negligence is relevant, and one of these must be proven for there to be a case here.
Now if either of these could be proven, this would be a serious issue, and and thus this investigation was worthy of being a "big deal", but again this investigation concluded that neither of these were the case.
(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, [...] 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— [...]
(a) Whoever willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys, or attempts to do so, or, with intent to do so takes and carries away any record, [...], document, or other thing, filed or deposited with any clerk or officer of any court of the United States, or in any public office, or with any judicial or public officer of the United States, shall be fined under this title or imprisoned not more than three years, or both.
(b) Whoever, having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States. [...]
(Abbreviated and emphasis added.)
But why use a personal email server if not for some nefarious purpose?
There is actually a well-documented technical problem for which the personal email account was setup to solve, and it's actually kind-of a sad issue. The government-issue BlackBerry device can only use one email account (yes, the all but forgotten BlackBerry, which many would no longer consider a maker of smart devices). I think most of us would agree it's unreasonable to have access to just your work email throughout the day (I certainly get mission-critical email in my personal email), and the only other alternative would be to carry two whole devices to work around this issue.
You can argue all you want about how she should have just used 2 devices or whatever, and in hind-sight she openly agrees that she should have, but this is not the issue the FBI was investigating so let us not get side-tracked.
Also, remember not to assume malice when intentions are unknown. This certainly fails the philosophical principal of Hanlon's razor:
Never attribute to malice that which is adequately explained by stupidity.
Don't assume bad intentions over neglect and misunderstanding.
Personally, I think any "smart device" which can't handle multiple email accounts is actually a pretty stupid device.
Just think, if we must start assuming malice when intentions are unknown, we must also assume that Mr. Comey sent this letter simply to meddle in the election, and this whole thing falls apart very quickly.
But I desperately want her to be guilty of something!
That's not a question, but if the voting on the hopefully highly-factual answer is any indication, this is quite-possibly true for some for you (if not, please post a comment or suggest an edit, this question desperately needs a solid answer without the speculative and slanderous baggage found above). But remember, it is not your place to decide if she is guilty or not, the justice system has already made their decision, inline with what the FBI investigation concluded.
Possibly three main reasons:
- It is the FBI's duty to do so as a law enforcement and intelligence agency as described in their Mission statement.
- To deter others from being careless with secrets.
- To protect their reputation in the light of this becoming such a hot topic in the public domain.
To answer the question most directly, the FBI is supposed to pursue investigations doggedly. To "make a big deal" is the right answer for the FBI if they must investigate a serious charge. So the implied question is about the seriousness of the charge, and so forth, the nature of the activity in question.
To answer somewhat less directly, the reason that government business is supposed to be conducted on government machinery is to fulfill transparency requirements. personal machinery is not covered under most of the same regulatory regime as the government-owned stuff, and so the burden is laid upon government personnel to use government gear. Regardless of the personalities in question, this requirement seems reasonable and clear-cut.
Obvious, intentional, high-level steps to circumvent these reasonable safeguards of our Republic are worth investigating on the face of it. Note that this is independent of whatever misdeeds may drive that sort of evasive behavior -- on which I believe the FBI is silent.
Because they can? There are clearly laws and regulations concerning classified material and Hillary Clinton used a private Email server likely mainly in order to sidestep certain documentation and information retention duties that are a hassle when doing a job description like "Secretary of State". In the course of doing that, there was significant danger of exposing state secrets without involving the assigned personnel for mitigating the danger, personnel that would have some ties to the FBI level of administration.
So the FBI is annoyed. In addition, the FBI always has been angling for more power since its inception. With a confused law-and-order-and-God-with-us president like Trump they'll be better off than with a president that, while not seeming adverse to wielding power in her own right, is likely to strike a harder bargain for letting others exert their share of power.
Now make no mistake: Clinton has given them cause to investigate. However, that they do so in the most obnoxious manner available to them is their own choice, and that they seriously deploy double standards here (they are going after a particular smoking gun–and smoking it is, make no mistake–in a battlefield of infractions all over the tightly regulated place) the same.
If you take a look at the amount of investigation and propaganda invested into the set of Clapper, Holder, Clinton, Snowden, Petraeus, Kiriakou and the respective penalties dealt for violations of their respective duties and oaths and see whether anybody even bothered with investigating or punishing open violations of the law, you'll find that there is an astonishing amount of leeway regarding when laws are applied in what degree if at all (I am not comparing Clinton here to people who sacrificed their career and freedom to their oath on the Constitution: this list is merely there to illustrate double standards).
I have little enough sympathy for Clinton here. Nevertheless, the powerplay that the FBI chooses to indulge in selectively with regard to this case in particular while collecting brownie points for not messing with others in worse circumstances is simply distasteful and serving the goals of the FBI itself rather than either government as a whole, administration or the public.
The resulting voter disgust will ultimately not likely thwart the Clinton presidency since Trump is, well, Trump. However, it will make pretty sure that the House will fall to the Republicans solidly "in compensation" and that the political stalemate in Congress will continue. And a vacuum of power is the best precursor for the FBI extending their power with fewer checks against them.