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As this article states:

"Cox said the fact that Clinton’s staff -- rather than a State Department federal records officer -- chose which emails to destroy is "honestly breathtaking." Her private employees don’t have the authority to decide what does or doesn’t count as a federal record."

Why did Hillary Clinton's staff get to decide what emails to send to the FBI? Why didn't the FBI just get a warrant to retrieve these emails?

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  • Downvoters, please remember to comment. – James K Dec 20 '17 at 8:35
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    @JamesK If no comment is added, assume the default: "This question does not show any research effort; it is unclear or not useful" (No point to copying that to the comments section.) – Batman Dec 20 '17 at 9:09
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    Well which is it? No research effort? Unclear ? Not useful? What does "not useful" mean in the context of this question? What should the new poster do to improve? If a question is not so weak that it needs deleting then some pointers to improvement are nearly always useful. – James K Dec 20 '17 at 10:20
  • Thank you James K for telling others to give me proper feedback. To be honest I did do a lot of research, and since this is a topic where it is easy to get biased info, I was not finding the answer on my own and so after an hour of trying to find the answer I decided to come here and try this forum out. I don't know anything about law since that was not my area of study and I wanted an in depth response like Panda gave so that I could study this in depth. – Adam Dec 21 '17 at 17:55
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Basically, at that time, there was no reason for the FBI to issue a warrant. As the Federal Rules of Criminal Procedure states:

(d) Obtaining a Warrant.

(1) In General. After receiving an affidavit or other information, a magistrate judge—or if authorized by Rule 41(b), a judge of a state court of record—must issue the warrant if there is probable cause to search for and seize a person or property or to install and use a tracking device.

(emphasis mine)

Using a private email server did not break any laws, as the article you cited states:

In Clinton’s defense, we should note that it was only after Clinton left the State Department, that the National Archives issued a recommendation that government employees should avoid conducting official business on personal emails (though they noted there might be extenuating circumstances such as an emergency that require it). Additionally, in 2014, President Barack Obama signed changes to the Federal Records Act that explicitly said federal officials can only use personal email addresses if they also copy or send the emails to their official account.

Because these rules weren’t in effect when Clinton was in office, "she was in compliance with the laws and regulations at the time," said Gary Bass, founder and former director of OMB Watch, a government accountability organization.

(emphasis mine)

Eventually, the FBI managed to secure a search warrant to access emails between Hillary Clinton and her adviser Huma Abedin on a laptop belonging to Anthony Weiner.

The new documents reveal FBI agents secured the warrant after assuring a federal judge there was “probable cause” to believe the emails, contained on a laptop belonging to Anthony Weiner, a former US congressman and estranged husband of Ms Abedin, contained illegal and classified materials.

Quoting from this Politico article, court filings unsealed showed that the FBI believed "that the laptop was likely to contain evidence of illegal possession of classified information":

"There is probable cause to believe that the Subject Laptop contains evidence, contraband, fruits, and/or other items illegally possessed in violation of 18 U.S.C. § 793 (e) and (f)," an FBI agent wrote, citing felony Espionage Act provisions for illegal possessions of classified information.

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    It is highly illegal to transfer classified information from secure to unsecured storage, a regulation that dates back to long before Clinton assumed office. With the systems in place at the time Clinton was in office, that is also difficult to do - it requires a deliberate effort to circumvent the security protocols. If I had done that when I held a security clearance, I would have been put in jail. That was made very clear in the numerous security briefings I received. The fact that the FBI didn't prosecute her on that one is... interesting. – tj1000 Dec 20 '17 at 16:27
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    @tj1000 what does that have to do with the topic at hand? She didn't transfer any classified information to unsecured storage. She used a private email server for not classified communication...just as many other senior officials had in the past (and continued to do so afterwards). – user1530 Dec 26 '17 at 19:36
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    @tj1000 this has nothing to do with who I like or dislike. There were plenty of people that I dislike that used private email servers too. Doesn't change the fact that this was common and not illegal. And why would they have 'thrown the key away' had you done it? Again, HILARY WAS HARDLY THE ONLY PERSON THAT HAD DONE THIS. – user1530 Dec 27 '17 at 2:34
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    Examples of politicians using private email and/or private email servers: Jeb Bush, Scott Walker, Marco Rubio, Chris Christie, Rick Perry, Collin Powell, Howard Dean, Kushner, Bannon, etc. If people want to rail against private email, I'm all for it, but to rail against one politician while ignoring the others is something else entirely. – user1530 Dec 27 '17 at 2:38
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    @JerryCoffin all those examples were referring to handling work emails. One can assume ALL of them had some classified information at some point due to fact that they couldn't stop people from sending it to them. – user1530 Dec 30 '17 at 5:10
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Why didn't the FBI just get a warrant to retrieve these emails?

Because you need probable cause to obtain a warrant.

As the article you linked notes, keeping the emails on a private server was - while being a poor and objectionable choice - "in compliance with the laws and regulations at the time", which is also why the FBI didn't bring charges against Clinton.

Apart from the actual keeping of the emails on private servers, there are no credible cases of possible crimes being associated with the emails (conspiracy theories about pizzerias don't count).

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    -1. Your answer is in contradiction with other answers on this SE, specifically related to the regulations from NARA: politics.stackexchange.com/a/12816/6738 – Drunk Cynic Dec 20 '17 at 20:18
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    +1 - since someone's opinion on this SE in the form of an answer is not necessarily an authoritative source, itself, especially if they are offering their subjective, non-expert opinion of what the statutes and rules mean. – PoloHoleSet Dec 26 '17 at 17:57
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    @DrunkCynic - To be fair, that answer and this one are saying two different things. This answer says "Storing emails on a private server was legal", and that answer says "Storing confidential emails on a private server was illegal". Both can be true at the same time. The question then becomes whether a warrant can be issued for the latter crime. – Bobson Dec 26 '17 at 18:20
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    @Bobson The main contention is the claim that "in compliance with laws and regulations" is false, and comes from a non-Government watchdog organization. Contradictory statements can be found in Politifacts wrap up article (same source, different conclusions), including quotations from Comey, the then-FBI director. factcheck.org/2016/07/a-guide-to-clintons-emails – Drunk Cynic Dec 26 '17 at 18:29
  • @PoloHoleSet And the referenced quote comes from "Gary Bass, founder and former director of OMB Watch, a government accountability organization." OMB Watch was a leftist think tank and advocacy group; rather subjective view point there. – Drunk Cynic Dec 26 '17 at 18:32
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Why did Hillary Clinton's staff get to decide what emails to send to the FBI? Why didn't the FBI just get a warrant to retrieve these emails?

Because her staff deleted the emails before turning them over.

Note that she was required to turn over all work-related emails. It was not illegal to use a private server, but she was still legally required to make copies of all work-related emails for the government. This is because there are archival requirements around government communications. The Freedom of Information Act is an example of relevant law.

Because they deleted emails without allowing the government to review them, that provided probable cause for the FBI to get a warrant for the emails. But until she failed to turn over the emails, she had not yet done anything illegal. It was the deleting of possibly work-related emails that was the illegal act that then allowed the FBI to get a warrant. Until then, it wasn't an FBI investigation. She was simply legally required to turn over all work-related emails to the State department.

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  • Is there a requirement that the government review personal email to determine what is or isn't work related? – user1530 Dec 27 '17 at 18:34
  • @blip if you mix personal and work related email streams, then yes, the government gets to review your personal mail. If you don't want that to happen, it's up to you to keep those streams separated. – Sjoerd Dec 28 '17 at 4:36
  • @Sjoerd do you have a citation for that? – user1530 Dec 28 '17 at 14:54
  • I think this answer would be better if you changed: "she had not yet done anything illegal." to something like: "the FBI had no tangible evidence that she had done anything illegal." As it stands now, you're stating as a fact that she had not done anything illegal, which we don't actually know to be true (and is, in fact, the question they were trying to answer). – Jerry Coffin Dec 30 '17 at 2:30
  • Likewise, "that was the illegal act that allowed the FBI to get a warrant." would be better phrased as providing probable cause--it's entirely possible that all the emails that were deleted truly were personal, and no law was broken--but it left enough room for question to constitute probable cause (at least when taken in conjunction with the other evidence). – Jerry Coffin Dec 30 '17 at 2:53

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