Why the Private Email Issue Could Still Sink the Clinton Campaign

The FBI is still investigating whether Democratic presidential front-runner Hilary Clinton, while Secretary of State, broke the law by using a personal email account on a private server to conduct state business. It's an extremely-complicated investigation that is riddled with political grudges and allegiances, and has been going on so long with so little revealed, that many voters have largely written it off. Behind the scenes, however, it remains a ticking time bomb that could completely redraw the battle lines in the 2016 race for the White House.

The Emails

The email saga traces back to September of 2012, in the days following the attack on the U.S. Embassy in Benghazi, Libya, which left four Americans dead after terrorists stormed the compound. Nine days after the incident, Rep. Jason Chaffetz (R-CA), chair of the House Subcommittee on National Security, Homeland Defense and Foreign Operations, requested all documents related to the event from the State Department.

The broad request included any and all emails related to the matter. The State Department began turning over records in small waves over the course of the following year; however, no emails were included. The Oversight Committee finally issued two subpoenas in 2013, one for the initial documents and another for results of the State Department's own internal investigation that it claimed exonerated Secretary Clinton.

In August of 2014, the first Clinton emails finally appeared, which is when Congress became aware of the existence of a private server and the fact that she'd used her personal email while Secretary of State. This was immediately problematic, as any such communication that was in any way related to state business was subject to public record law. The issue was further complicated by the possibility that classified information could have been mishandled.

In early 2015, Congress learned that Clinton had only made available some of her records and though there were ultimately some 55,000 pages of emails, Clinton, despite having been issued a Congressional "preservation letter,“ instructing her to protect all records, destroyed some 30,000 emails that she and her team determined to be "personal" in nature and therefore not applicable.

At the core of the issue is whether Clinton's use of an outside server put national security secrets at risk and, if so, whether she or anyone on her staff were responsible for exposing classified information. It is possible that Clinton could be charged with breaking several laws, including unauthorized removal of classified information from government control, lying to Congress, destruction of government property and obstruction of justice.

The Investigation

While the State Department's internal investigation found the Secretary free from wrongdoing, the FBI took up a criminal investigation earlier this year which is said to have been stepped up in recent weeks. Leading the investigation is FBI Director James Comey, a fiercely independent law man who won accolades when he stood up to then Attorney General Alberto Gonzalez and President Bush's Chief of Staff Andy Card when they tried to ram through a re-authorization of the warrantless wire-tap program while he was acting Attorney General under a hospitalized John Ashcroft.

Comey, who was later appointed FBI Director by President Obama, has consistently resisted political pressure as a public official, diverging with the President on several issues including the Black Lives Matter protests. The director says that the President is not being briefed on the status of the Clinton investigation, and that while it would ultimately be up to the Justice Department whether to act on the results of his agency's findings to file charges against Clinton or anyone else involved, only an aggressive search for the truth will guide the investigation.

Over the summer, Intelligence Community Inspector General I. Charles McCullough III and State Department Inspector General Steve Linick discovered four emails sent on the private server to have been "classified," when they were generated and later said that two of the four emails contained "Top Secret" intelligence. Those emails are now part of the FBI investigation. The most recent series of emails released by the State Department contained 328 classified emails, bringing the total number to 999.

Republicans are now asking for information into possible leaks from government agencies that play down the two emails containing top-secret information on the private Clinton server. A Nov. 6 Politico story cited unnamed sources claiming that the emails did not contain "highly-sensitive information." Clinton's supporters hailed the story as proof that the emails were a non-issue. However, that analysis seems to contradict the facts as they are known at this time.

A spokeswoman for the Inspector General's office confirmed afterward that there had been no change to the status of the emails, which were classified at both the time they were sent and received through the server and remain top-secret at this time. The State Department has been challenging the top-secret status of the two emails; however, classification status rests with the agency who generates the information and in neither case, was it the State Department. There is no existing process to formally challenge a classification and the status of the information at the time of Clinton's transmittal would seem to be the only relevant factor.

The Politics

Clearly, Clinton and her supporters would like to see the issue go away, while Republicans hope that the FBI investigation could sink the campaign of a rival that all current signs suggest will win the White House next November. Obviously, criminal charges would mean an immediate withdrawal from the race. Charges against high ranking staff members at the State Department would also be devastating to her election chances. Even a scenario in which no charges are filed, but the FBI report is released and casts her in a very negative light, could pull the rug out from under a candidate who already struggles with polling questions about her trustworthiness among voters.

For Democrats, timing will remain the crucial factor. The Benghazi hearings ended up having very little impact and may have even helped Clinton, but they also promised that the issue would be resolved in a time frame that didn't complicate the primaries. If the email investigation wraps up around the time of the Iowa Caucuses, as many predict, it could completely change the nomination race and catapult second-place contender Bernie Sanders into the nomination. If it stretches out longer and Clinton has either built a big lead in delegates or secured the nomination, we could see Vice President Joe Biden come off of the bench or, more interestingly, Senator Elizabeth Warren.