Tiefer: State Dept review could have vindicated Hillary Clinton

In a Forbes article analyzing the State Department’s decision to halt its review of Hillary Clinton’s emails, Professor Charles Tiefer says the review could have vindicated the Democratic presidential candidate, who has been under fire for using a private email server when she was secretary of state.

The article, “The State Department Halts a Potentially Vindicating Review of Hillary Clinton Emails,” has received more than 23,000 views in less than two days.

The State Department announced Friday, April 1 that it was stopping the review of the emails at the request of the FBI, which is conducting its own investigation of emails on the private server used by Clinton.

On a basic level, Tiefer says, the matter is routine:

“During the pendency of a criminal investigation, parallel civil investigations (like the State Department’s) are often halted or stayed. The criminal investigation has preeminence, and a civil investigation would get in the way. This is standard, and does not say anything specific or significant about the nature of the criminal investigation.”

But, Tiefer continued, it pays to consider the subtleties in this particular investigation: “A good deal of the case turns on how to view Clinton’s emails, and the State Department might reach its own conclusions from going ahead with its own review that the FBI would find awkward.”

In general, Tiefer said, the State Department has a realistic understanding of what its senior staff do as standard practice: “They send emails among themselves that pass on information acquired from conversations with foreign diplomats or other public and private figures with whom they hold discussions.”

Clinton received hundreds of such emails – emails that were not marked “classified” and that were not put in the State Department’s system for classified information – and it was only retroactively that the messages were deemed to contain classified information, Tiefer noted.

Because the State Department knows how its staff works, Tiefer said, “its pressing ahead with its own review might result in conclusions supportive of Clinton. It might describe much of the email exchanging as State Department ‘business as usual.’”

In addition, Tiefer said, the State Department review might focus on the fact that the vast majority of the emails were written by other people to Clinton, and that she herself wrote as little as 5 or 6 percent of all the messages retroactively deemed classified.

“A State Department conclusion of this kind would be a nuisance for the more hard-boiled FBI investigators. They do not want to acknowledge – at least not yet — what is ‘business as usual’ in the State Department,” Tiefer said. “And, they do not want to acknowledge – at least not yet – that around 95% of the emails were written – and not marked classified, and sent through unclassified channels — by all those other State Department officials, not Clinton.”

Before joining the University of Baltimore School of Law faculty in 1995, Tiefer served as solicitor and deputy general counsel of the U.S. House of Representatives for 11 years.

Learn more about Professor Tiefer.

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