The key to the Clinton “email scandal”? Understanding that it's really several different controversies.
The press corps needs shorthand to refer to controversies from a presidential campaign — terms like "John Kerry and swift boating" in 2004 or "Mitt Romney’s 47 percent comments" in 2012.
In 2016, we have "Hillary’s emails."
But this shorthand, though somewhat irresistible, suggests a single controversy that is somehow both monolithic and strangely sprawling. The reality is that there are actually three (or, if you include claims of a cover-up, four) distinct controversies that involve both Hillary Clinton and email. Indeed, there are two separate groups of emails, and some of the accusations against Clinton are contradictory. To understand what’s happening, it’s useful to split up these controversies rather than lump them together:
One controversy related to Clinton’s emails is that she exchanged classified information over a private server that was susceptible to hacking by foreign agents. This is an issue about cybersecurity — that Clinton didn’t do enough to safeguard government secrets. (This is what the FBI’s investigation was about.)
Another claim is that Clinton’s private server allowed her to avoid public records laws. This is a controversy related to the idea of transparency — that government officials have to keep records of their work, and that Clinton deliberately avoided doing so.
Separately, emails from Clinton’s aides have also fed into different controversies about the Clinton Foundation and the Benghazi compound attack. At heart, these stories are about donor access and foreign policy.
Crucially, even though this last bunch has been placed under the umbrella of "Clinton email controversy," these emails have nothing to do with cybersecurity, transparency, or the protocol of email management. They’re not even the same emails — they weren’t sent or received by Clinton herself. But the existence of two different controversies about Clinton’s email server means that any headline with the words "Clinton" and "email" automatically sounds tantalizing, even at the expense of clarity.
The Hillary Clinton’s email story, a multi-headed hydra
Wielded as a single cudgel, the "Hillary Clinton email scandal" has become a powerful weapon against the Democratic nominee.
"Hillary Clinton created this problem; I’m trying to untie this big tangled web," Utah Rep. Jason Chaffetz told Politico.
Donald Trump has also spent weeks on the campaign trail going after "Clinton’s emails," calling her handling of classified information "disqualifying" for the presidency.
The attacks are sticking. Last week, the Washington Post reported that "Clinton’s email controversy" is the reason the presidential race has narrowed to within a few points. Fully 62 percent of American voters now say Clinton’s emails represent a serious issue — up from around 40 percent last year.
"The email story is absolutely killing her," the Post’s Aaron Blake wrote. "It’s arguably turned what might otherwise have been a pretty easy win for Clinton into something else entirely."
Kel McClanahan, executive director of the nonprofit advocacy group National Security Counselors, argues that the cumulative impact of several email-related Clinton "scandals" has allowed critics to avoid confronting the relatively benign nature of each.
"She is fighting a moving target — a blob of ‘bad behavior allegations,’ where every time someone punches one down it reforms somewhere else with a new head," McClanahan says in an interview. "Hardly anybody is taking the time to separate out the individual claims: ‘Here’s the information related to the classified information, and that doesn’t look so bad; here’s the foundation allegations, and maybe they don’t look so bad either.’ Instead it’s become this set of amorphous character complaints, fused together."
Confronted individually, in other words, each Clinton email story looks like less than the sum of its parts.
How we got here: What do we mean when we say "Clinton emails"?
To understand why "email-related" scandals really reflect separate ideas — and how they’ve come to be jumbled up together nonetheless — it’s key to understand how they first emerged.
Naturally, it all goes back to Benghazi.
On September 11, 2012, four Americans in Libya were killed in a terrorist attack at the American diplomatic compound in Benghazi. As you may remember, Republicans accused Clinton of putting politics over the protection of American personnel. That led them to pry into her emails.
The House Select Committee on Benghazi asked for all of the State Department’s Benghazi-related emails, but then State only turned over eight from Clinton herself. That seemed weird, so people began asking questions.
Throughout 2014, House Republicans complained that the State Department was stonewalling them for the emails. In March 2015, the New York Times revealed why: The State Department didn’t have Clinton’s emails. It turned out Clinton had used a private email server and private account exclusively throughout the duration of her tenure as secretary of state.
Since then, there’s been something of a mad scramble for Clinton’s emails involving basically everyone and their mother.
Each of the email hunters has had different incentives for trying to uncover Clinton’s emails. The FBI opened its investigation to learn if Clinton broke classification laws. Republicans in Congress, at least theoretically, want to learn more about her handling of Benghazi. The conservative advocacy group Judicial Watch has filed more than 20 Freedom of Information Act (FOIA) lawsuits over Clinton’s emails, in a move that’s hard to interpret as anything but baldly partisan. News outlets like Gawker, Vice News, and the Associated Press also all filed their own legal cases for Clinton’s emails in search of a better understanding of her time in the State Department.
But because these different investigations and lawsuits are all slowly unfolding over the same time period, they’ve led to the slow drip of emails being released over the course of months. That’s made it easy to look at all of these as being tied to the same controversy, even though the different emails are giving support to entirely different underlying criticisms.
Controversy 1 — Cybersecurity: Did Clinton’s email server risk jeopardizing national security secrets?
The main area of criticism around Clinton’s private server concerns whether she made it easier for hackers to uncover and steal classified State Department information.
The accusation: Clinton used a private email account and a "homebrew" private email server exclusively during her four years as secretary of state. In doing so, she wound up exchanging emails containing classified information over communications systems that did not have the safeguards of the government. In all, Clinton sent or received more than 100 emails marked as classified — seven of which were marked "top secret" — on the private server installed in her family’s home in Westchester, New York.
The FBI’s investigation, released last week in a 58-page report, makes clear there’s no direct proof that "hostile agents" penetrated Clinton’s private server. But FBI Director James Comey has also made clear that Clinton’s decisions made it easier for them to do so, that hackers repeatedly tried to break into her email account, and that exchanging classified email over private servers at all was "extremely careless."
Moreover, just because the FBI couldn’t find that hackers broke in doesn’t mean they didn’t do so. (As Vox’s Timothy Lee has written, hackers are really good at covering their tracks if they don’t want to be discovered.) The New York Times interviewed several cybersecurity experts in July, and they all concluded that it was probable Clinton’s server was indeed hacked.
Donald Trump has suggested that China and/or Russia have actually obtained Clinton’s emails. That is, characteristically, a dramatic overstatement of the facts. But the claim that Clinton’s decision to use a private server really did give foreign hackers a greater opportunity to find classified information is hard to dismiss out of hand.
The defense: There have been three main defenses to this line of criticism.
The first is that much of the "classified" information exchanged almost certainly didn’t actually risk exposing national security secrets. That’s because the US government has a notoriously broad classification system that treats anodyne information (or information that’s already public) as secret.
"My standard joke is that the NSA is so crazy they classify their lunch menu," says James Lewis of the Center for Strategic and International Studies in Washington. "Was it a bad idea to set up a private server? Probably. Did it hurt national security or cause any real damage? We certainly can’t conclude that."
The second defense, noted to me in an email by Steven Aftergood of the Project on Government Secrecy, is that the State Department server may not really have been that much safer than the private servers. After all, State's own servers were successfully breached in 2006 and then again in 2015 — so maybe Clinton's emails were actually safer on the private server?
The third defense is also persuasive: Private accounts are pretty routine for government officials. A 2009 email sent by then-Secretary of State Colin Powell, released Wednesday, suggests that Powell frequently used a private server to communicate with foreign governments. (Powell’s private server wasn’t a "homebrew," but it was still outside the government’s systems.)
Critics have correctly said that Clinton’s use of her server appeared to go further than other government officials, but the Powell revelation makes this controversy look like a broader indictment of a broken emailing system — with Clinton being singled out unfairly as a particularly bad example.
Controversy 2 — Transparency: Did Clinton violate open records laws?
While the FBI investigation focused on the national security implications of the private server, there’s been a second and separate criticism: that Clinton used non-government systems to wrongfully avoid transparency laws.
The accusation: Clinton has long maintained that she used a BlackBerry with her private email address to avoid the inconvenience of having to carry around two separate phones. "I opted for convenience to use my personal email account, which was allowed by the State Department," she said at a hastily gathered press conference at the United Nations after the news broke in 2015. "I thought it would be easier to carry just one device for my work and for my personal emails instead of two."
That explanation hasn’t been proven to be false, as Clinton’s ultimate motivations for the private server are likely to remain unknown. But it’s been widely pilloried by critics like Slate’s Josh Voorhees, who have been quick to point out that Clinton has also admitted to carrying around an "iPad, a mini iPad, an iPhone and a Blackberry" in her purse at any given time.
Instead, most observers think Clinton took the unprecedented step of only using a private email account as secretary of state at least in part to avoid creating a record of her emails after their release. Government email accounts create a record of the correspondences, and then can be subject to FOIA requests from private citizens. (Other secretaries of state, like Powell, have used both a private account and a state-issued @state.gov address — Clinton is the only one to have never used a government account.)
The point is that many believe the public has a right to see how their elected officials came to make decisions, and by using a private account Clinton ignored that right. This isn’t just a criticism lobbed by Republican partisans — it’s also leveled by transparency advocates and other good government academics.
"The argument that Clinton complied with the letter and spirit of the law is unsustainable," said Douglas Cox, a law professor at City University of New York, in an interview with PolitiFact.
Adds Michael Morisy, an open records expert at the investigative news site MuckRock, in an email: "Most federal employees, particularly ones with security clearances, don't make a habit of [using private servers.] ... So some personal use is common, but very limited. For federal employees who handle sensitive information, the importance of following rules is made very clear, and [Clinton’s] more extensive use of personal accounts is very rare, but not unprecedented."
The defense: As with cybersecurity, Clinton allies have built several bulwarks against the attacks over her record on transparency.
The most important is that Clinton really has tried to release the emails exchanged over her private server to the public. After the Times revealed the existence of Clinton's private server in 2015, the State Department ordered her to turn over her emails. Clinton more or less complied with that request, telling her lawyers to hand over any possibly "work-related" emails to the State Department. (What happened to the emails that weren’t deemed not related to work has become a heated subject of contention — more on that in a bit.)
Clinton has also argued that she wasn’t skirting transparency laws because most of the people receiving her emails were using government accounts, and were thus themselves subject to FOIA requests. (Transparency experts said this wouldn’t capture all of the necessary correspondences, but it may explain why Clinton thought what she was doing was okay.)
Other commentators have argued that the whole FOIA system is a bit of a farce anyway. As Vox’s Matt Yglesias has noted, the content of phone calls discussing government decisions don’t have to be recorded and aren’t released under FOIA. If Clinton had a deep-seated desire to say things to aides that the public would never hear about, she could simply talk to them by phone or in person — a private email server, the contents of much of which ended up being turned over to the FBI anyway, doesn't seem nefarious as much as impractical overkill.
Controversy 3 — The Clinton Foundation emails
Though questions about the Clinton Foundation’s influence at the State Department also involve "emails," there’s not much else connecting them to the question of Clinton’s private server.
Still, headlines about the foundation usually involve the phrase "Clinton emails" — even though what we’re actually talking about are emails Judicial Watch obtained from the State Department involving communication between State employees and people at the Clinton Foundation.
The accusation: Emails sent between top Clinton Foundation and State Department officials have at least suggested that donors may have had an easier time meeting with the secretary of state.
Good government advocates argue that’s a big problem. They say the foundation’s contributors appear to have gained a greater ability to make their voices heard by Clinton’s State Department by virtue of their donations. And some of the foundation’s key donors — including the Saudi government and major oil companies — had critical decisions riding on Secretary Clinton’s decisions.
This is where the emails come in. Talking with top government officials obviously isn’t the same as getting them to do your bidding, but doing so can help structure how they think, whom they turn to for advice, and, ultimately, what they decide to do. Uncovered emails between foundation head Doug Band and State Department staff indicate that the foundation served as a conduit for donors seeking greater access to Clinton — though the degree to which that access was actually granted is hotly contested.
"There’s no doubt in anyone’s mind that a large number of the Clinton Foundation donors who met with her gave partly to get access to the Clintons," William English, a professor of ethics, economics, and public policy at Georgetown University, told me in an interview. "It looks essentially like a nonprofit that has the conspicuous benefit of being a great place where people can get access to Clinton and her staff."
The defense: Unlike the arguments around cybersecurity and transparency, the defense of the Clinton Foundation really just boils down to one simple point: There’s no proof Clinton ever did anything in exchange for a foundation donation.
The Clintons have implicitly acknowledged that the foundation is at least a bad look — Bill Clinton has announced that he’ll step down and stop fundraising if his wife wins the election. But they’ve always insisted that there’s no connection between helping the foundation financially and the decisions the Clintons make in their governmental positions.
Additionally, as Vox's Yglesias has argued, it’s hard to believe that many of the donors wouldn’t have been able to meet with Clinton absent the foundation. The crown prince of Bahrain, for instance, was a donor — but shouldn’t the secretary of state be meeting with foreign leaders anyway? She also met with a Nobel Prize–winning economist who also happened to be a Clinton Foundation donor, someone whose advice she might have sought in any case.
Here, too, we run into the problem that what Clinton did appears largely within the norm for most politicians. Politicians routinely hold meetings for their top donors. And it’s not just congressional lawmakers: Colin Powell’s wife, for instance, maintained a charity that took big bucks during his time as secretary of state. Clinton may have stretched what’s considered acceptable, but she didn’t invent the intermingling of donors and lawmakers that’s long been a staple of Washington, DC.
Controversy 4 — Cover-up: Has Clinton misled investigations into her emails?
Republicans have made a lot of hay over cybersecurity, transparency, and the foundation. But they’re increasingly homing their firepower on a new question: whether Clinton has tried to cover up inquiries into her emails, or improperly deleted them to avoid scrutiny.
The accusation: This one may be the most difficult to buy without assuming Clinton is a comic book supervillain, but I’ll give it the most generous explanation I can.
In winter 2015, Clinton told her lawyers to give the State Department all of her "work-related" emails, which were then being stored on a private server maintained by a contractor named Platte River Networks. (They had been transferred there from her private "homebrew" server after she left the State Department.)
Of course, Clinton sent lots of emails while secretary of state that were not deemed work-related. Those emails stayed on the Platte River Networks until a few months later, when somewhere in the neighborhood of 33,000 of them were deleted.
The question of why these private emails were deleted has become the source of a lot of pretty wild speculation. This timeline, laid out in the FBI report, has gotten endless scrutiny in conservative media:
In October 2014, Clinton aide Cheryl Mills told PRN to delete the emails that weren’t work-related. For whatever reason — and this is critical — PRN forgot to do so at the time.
On March 2, 2015, the Times made public that Clinton had used a private server while secretary of state.
On March 3, 2015, the House Republicans’ Benghazi committee ordered all emails on the private server be preserved.
Sometime between March 25 and March 31, 2015, a PRN techie had an "oh, shit" moment when he realized that Mills’s October request hadn’t been granted. That PRN techie then deleted the 33,000 emails that were not work-related.
On March 31, 2015, Mills and Clinton’s lawyers had a conference call with PRN. They declined to tell the FBI what they talked about.
The reason this looks fishy to some is because it suggests that someone from Clinton’s team on that conference call may have told PRN to remember to delete the emails even after the House Republicans’ order to preserve the records.
The defense: We have no evidence that Clinton did anything to interfere with a congressional or FBI inquiry.
There are a number of strange things about the theory that Clinton’s team reacted to the Benghazi committee by deleting the emails. One is that the conference call occurred on March 31 and the emails appear to have been deleted in the week beforehand.
Moreover, it conflicts with the separate attack that Clinton was reckless about security. Trump has cried foul over the deletion of the emails and the concerns about cybersecurity in the same speech — which is bizarre, because scrubbing the emails actually helped reduce the cybersecurity risk by removing them from a private, non-governmental server.
During its investigation, the FBI has recovered about 15,000 of those 33,000 emails Clinton deleted. Many of them are scheduled for release before the election, so we can expect another round of headlines.
Maybe they’ll show that Clinton sent an email that was retroactively classified. Or maybe they’ll reveal that Clinton received an email on her private server from a foundation donor. They almost certainly won’t show that Clinton broke a law, since the FBI already looked at them.
But at least one thing’s for sure: They’ll certainly be considered part of the "Hillary Clinton email scandal."