Democratic presidential candidate Hillary Clinton speaks at a July 24 event at the New York University Leonard N. Stern School of Business in New York.

Democratic presidential candidate Hillary Clinton speaks at a July 24 event at the New York University Leonard N. Stern School of Business in New York.

Questions about the way Hillary Clinton handled email while she was secretary of state have dogged her for months. Last week, Clinton gave federal authorities her private email server, which she used for all of her email during her tenure in the Obama administration. State Department rules did not prohibit the use of a private server, but critics say doing so created a national security risk. Clinton has pushed back, pointing out she had not sent or received classified material while using the server. She maintains the controversy is entirely politically motivated. We look at the Clinton email probe and how it’s affecting her presidential campaign.

Guests

  • Ellen Tauscher Former State Department undersecretary for arms control and international security affairs; former Democratic congresswoman, California's 10th District (1997-2009)
  • Karen Tumulty National political reporter, The Washington Post.
  • Jonathan Turley Professor of public interest law, The George Washington University Law School.

Video: Will Hillary Clinton's Private Server Hurt Her?

Transcript

  • 10:06:53

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Last week, Hillary Clinton handed over her private email server to federal authorities. It was the server she used to send, receive and store emails during her four years as secretary of state. For months, Republicans have hammered Secretary Clinton on the email issue, implying she did something unlawful or underhanded.

  • 10:07:25

    MS. DIANE REHMNow, even Clinton's supporters concede the controversy could be harming her presidential campaign. Joining me in the studio to talk about the email investigation, Jonathan Turley of the George Washington University School of Law and Karen Tumulty of The Washington Post. Joining us from a studio in San Francisco, former Democratic congresswomen, Ellen Tauscher.

  • 10:07:57

    MS. DIANE REHMShe is former undersecretary for arms control and international security affairs at the State Department from 2009 to 2012. Throughout the hour, we'll be taking your calls, questions, comments, call us on 800-433-8850. Send an email to drshow@wamu.org. Follow us on Facebook or send us a tweet. And thanks to all of you for being with us.

  • 10:08:33

    MS. KAREN TUMULTYGreat to be here.

  • 10:08:34

    MR. JONATHAN TURLEYThank you very much.

  • 10:08:36

    MS. ELLEN TAUSCHERThank you.

  • 10:08:37

    REHMKaren Tumulty, take us back a little bit. Remind us how this whole thing started.

  • 10:08:45

    TUMULTYWell, it's long and it's complicated, but it's important to understand. All of this really started a year ago, last August, when the committee on the Hill investigating the deaths of four Americans at Benghazi discovered some records that had a private email domain account on them, Clintonemail.com. This prompted the State Department to ask Secretary Clinton to turn over all of these emails. There were 60-something -- 60,000 something in all.

  • 10:09:22

    TUMULTYShe decided that 30,000 or so were private so she destroyed them, turned over in December 30,000 emails. At the same time, there are now two dozen freedom of information lawsuits going on various aspects of her tenure as secretary. So a federal judge ordered that these emails start being released on a schedule. So as the State Department starts going through them, trying to figure out what's classified and what's not, there's some tension developing because the inspectors general see -- the inspectors general for both the State Department and the intelligence agencies see -- have a different sort of sense of what should be classified than the State Department officials are who are going through this.

  • 10:10:12

    TUMULTYOkay. So in March, it's suddenly the New York Times reports that Hillary Clinton had this private email account, used it exclusively, it becomes a gigantic political issue. And so suddenly what -- basically kind of tension within the State Department comes out into the whole public realm. Okay. Fast forward a little bit to June when the inspectors general discover that some of this material is not just stuff that Hillary Clinton turned over to the State Department, but it exists on a thumb drive outside the State Department's control in the safe of Hillary Clinton's attorney, David Kendall.

  • 10:10:56

    TUMULTYSo because of their concern about that, they decide to go to the FBI and make what is called a security referral to say, hey, you know, we are afraid -- we have found some classified information in these emails. We are afraid that some of this information is outside the government's control and we want the FBI to look into it, which became public then at the end of July and has really created this controversy, which has now lead to Hillary Clinton, just within the last couple of weeks, agreeing to do two things that originally she said she wouldn't do, which is turn over that thumb drive that was in a safe in her lawyer's office and to turn over her private email server.

  • 10:11:47

    TUMULTYI hope that's all clear, but that's what got us here.

  • 10:11:50

    REHMDid the thumb drive have all 60,000 emails on it?

  • 10:11:57

    TUMULTYNo. The thumb drive had the 30,000 plus or minus that she turned over to the State Department. Her lawyer was initially resisting giving it up because he said he has to maintain that as evidence for the Benghazi committee, that there is a requirement, you know, of obligation on his part to preserve the evidence that they might be interested in. So really, you have all kinds of interests pulling this controversy in all kinds of different directions.

  • 10:12:27

    REHMOne more question. Did the State Department or the investigating services decide that some emails that were not classified be classified once they read them?

  • 10:12:48

    TUMULTYYes. What happened was the inspectors general for the State Department and the intelligence community were reading over some of these emails and, you know, the Clinton people say nothing was marked classified.

  • 10:13:04

    REHMRight.

  • 10:13:04

    TUMULTYBut, you know, that's not really what the standard is here and so the inspectors general pulled back and they said, whoa, some of this stuff is classified. We have, in fact, since found that, you know, there's an argument that some of it was actually top secret.

  • 10:13:20

    REHMBut was it labeled so? That's what I'm asking.

  • 10:13:24

    TUMULTYNone of it was labeled so. And by the way, the responsibility, and Jeff is more of an expert on this than I am, but my understanding is that the responsibility for classified information really lies with the sender. And a lot of these emails, including these top secret ones that have since been found, we are told are not emails that Hillary Clinton, herself, sent, but emails where maybe she was on an email chain. In some instances, never even replied to them. So the, you know, the FBI's investigation at this point, looking into where all this information is, is not necessarily aimed at Hillary Clinton.

  • 10:14:06

    TUMULTYIt is not necessarily -- it's not, at this point, a criminal investigation, but it is looking at this gigantic community of people with whom she was communicating.

  • 10:14:15

    REHMKaren Tumulty, national political reporter for The Washington Post. Jonathan Turley, as a professor of public interest law, tell me about the issues you have with the way Hillary Clinton's email account was handled.

  • 10:14:37

    TURLEYWell, there's really two types of issues that are raised by this. First, of course, is the potential criminal or legal liability issue. On that, there are basically four legal areas that her attorneys have to be concerned about. There's the federal records act, the freedom of information act, the NARA regulations, those are the archives regulations and what is called 18 USC 1924 and that's something that those of us who deal with national security material regularly have to deal with because it involves the handling, destruction, preservation of classified information.

  • 10:15:13

    TURLEYSo on one hand, you have that aspect and there are certainly arguments and defenses that Hillary Clinton can make about whether she know something was classified, whether she was subject to these regulations. There's no question that what she did is now covered in a regulation as being inappropriate, but those were technically changed after she left the State Department, even though there were email -- a memo before that point, saying, you know, don't do this.

  • 10:15:41

    TURLEYThe second question...

  • 10:15:43

    REHMExcuse me. Was that not optional?

  • 10:15:47

    TURLEYNo, that -- I think you could argue that that was optional.

  • 10:15:50

    REHMIn other words, she was not given an instruction, do not do this, but as I understand it, the State Department said, we would prefer that you not do this.

  • 10:16:03

    TURLEYYeah, I think it was a bit stronger than that. I think that the State Department made clear this is not something that we want you to do. You need to...

  • 10:16:10

    REHMOkay.

  • 10:16:11

    TURLEYI mean, the government has spent truly billions of dollars securing servers, email systems, communication systems and this email was reminding people, they're there for a reason. We are subject to attack for surveillance. The second issue is simply even if it's not illegal, is this a good practice? Does this show good judgment? On that issue, I think there's really no question. I think it shows appalling judgment. I mean, I was flabbergasted that Clinton could effectively run the State Department off a private server.

  • 10:16:45

    TURLEYAnd I've been dealing with classified material since Reagan and I can tell you that security officers -- if you want to put a security officer in a fetal position, you just use the word email. It is extremely vulnerable. They are always really quite exercised about anything going over email. And I don't think anyone could seriously argue that she used good judgment in taking this step.

  • 10:17:08

    REHMAll right. One last question before we go to a break, did Colin Powell, when he was secretary of state, also use a private server?

  • 10:17:22

    TURLEYYeah, that's one of these things, the spins that you've heard, that I've certainly heard, and I have to say I don't find them very convincing. First of all, this business about things being marked is just bizarrely out of place. When you deal with classified information, you have to presume you're working with classified information in certain circumstances. When you're the secretary of state, you're one of the top targets of foreign intelligence.

  • 10:17:44

    TURLEYYou have to assume that your communication is classified. As to Colin Powell, he did this before the invention of the iPhone. The thing changed a great deal.

  • 10:17:53

    REHMJonathan Turley, he's professor of public interest law at the George Washington University Law School. When we come back, we'll hear another perspective. Stay with us.

  • 10:20:00

    REHMAnd welcome back. You've heard the background as to how Hillary Clinton's emails have become so controversial. You've heard the back from Karen Tumulty of the Washington Post. You've heard the concerns raised about use of a private server, the security concerns raised by Jonathan Turley, professor of law at George Washington University, and now we turn to former undersecretary for arms control and international security affairs at State Department, Ellen Tauscher. She is also former Democratic congresswoman representing California's 10th District.

  • 10:21:01

    REHMCongresswoman Tauscher, you've got firsthand experience with the State Department email system. Your own thoughts on this controversy?

  • 10:21:11

    TAUSCHERWell, thank you Diane. I very much appreciate Karen's I think very thoughtful laying out of the complicated situation that everyone finds themselves in when you're dealing with classified information. In my case, like Secretary Clinton, my office was a SCIF, which is a secure area, and I think the most important thing to remember in all of these swirling cross-complaints is that all of the classified information that Secretary Clinton worked with is right where it belongs, on the classified server.

  • 10:21:53

    TAUSCHERWhat we're talking about are unclassified emails that were unclassified at the time she received them and not things that are subject to national security concerns. But, you know, I think it's very important to acknowledge that with some of these accusations that are out there that it's important for the secretary, and that is why she has delivered the server, and the thumb drive is, you know, trying to get secured so that both the Benghazi folks who want a chain of custody for those emails and the ICs from both State Department and the intelligence community and the FBI can have access to it.

  • 10:22:40

    TAUSCHERAs Karen said, you know, the FBI's looking at this primarily because these emails by federal order are meant to be released to the public, and the review that the FBI is doing is really not a criminal investigation or even about Secretary Clinton. It's about making sure that there is agreement between the disparate groups, both from the intelligence community and the State Department and others, as to the correct classification of these emails because they are going to become public.

  • 10:23:16

    REHMThat's what I...

  • 10:23:16

    TAUSCHERAnd there are things about them -- go ahead.

  • 10:23:17

    REHMExcuse me, that's exactly what I wanted to ask you about. How often are documents re-classified up or down based on new information or to whom the emails are being sent?

  • 10:23:38

    TAUSCHERAll the time. And there's great dispute between different departments about the level of classification. You know, as Jonathan said, the person that is sending the email is required to set the level of classification, but you're not going to be surprised to find out that the intelligence community thinks everything should be classified. Sometimes something going to the secretary, just because it was going to her for a certain kind of review, had a bump up in classification, and subsequently it was bumped down.

  • 10:24:16

    TAUSCHERSo there are a lot of times when things for one reason or another are -- things are reclassified. What's important to note here is that this is -- this whole entire effort is about providing the American people with these emails. And this review, where there's now 305 of the emails that are going to be under review for the appropriate classification, this is about the American people and others getting to see these emails. It's not about anybody sending classified emails on an unclassified environment to Secretary Clinton. She has said very clearly she did not receive any classified information.

  • 10:25:01

    REHMAnd the question continues to come up as to why, considering the fact that the State Department advised everyone not to use a personal server, that Secretary Clinton decided to go forward in that direction.

  • 10:25:24

    TAUSCHERYou know, I think Secretary Clinton said it yesterday. This was done mostly for convenience, to be able to keep track of her family and her friends and because she had a bruising travel schedule. But I think what is really the most important piece is that throughout her tenure, Secretary Clinton maintained the very high standard of security on the classified side.

  • 10:25:51

    TAUSCHERYou know, there are a number of people that work for us up on the seventh floor of the State Department. They're foreign -- you know, Foreign Service officers, some with the rank of ambassador, some of them are, you know, civil service employees of tremendous tenure and experience. And they work very hard to make sure that the bright white line between things that are classified and unclassified is maintained.

  • 10:26:15

    TAUSCHERAnd I think it's important to remember, all of the classified information that Secretary Clinton had during her tenure is on the classified server. But also, not all business of the State Department, I would say not even half of the business of the State Department, is done by email. And so while I think it's very important that we're clear that there are no criminal issues here and that the national security assets of the United States have been protected, I think it's really important to also remember that there is a very, very high threshold inside the State Department, as there is throughout the government, of maintaining classified data in the most secure way possible.

  • 10:26:57

    REHMJonathan Turley, do you want to comment?

  • 10:27:00

    TURLEYWell, I have a great deal of respect for Ellen, and some of the things that she has said, I agree with. Where I would depart are on a couple of issues. I think that I would not say that it's clear that the national security interests have been protected. I would say the opposite. I'd say that it's abundantly clear that they have not been. This idea that you only treat this as classified material if there is a classification stamp on it, in my view it's just not the reality.

  • 10:27:28

    TURLEYThe president of the United States doesn't have a guy standing there with a stamp, and everything that he says or writes down is immediately stamped as top secret. Because of who he is, because of the nature of the information, you have to presume it's classified. Hillary Clinton was one of the top foreign intelligence targets in the world. She has to assume that there are a host of countries constantly probing to try to get access to things like email.

  • 10:27:54

    TURLEYThe idea that she would use a private server exclusively for her communications on email is really bizarre, and you've seen people who are not political, and I don't have a dog in this fight politically, but there's plenty of professional folks from the intelligence community, including the inspector generals themselves, who have said no, we have at least 300 emails so far that we have flagged as possibly classified. Some of them include signals intelligence, which is the really sacred area of classification rules. And so they're saying yes, some stuff that went over the email does appear to be classified.

  • 10:28:34

    TURLEYAnd none of us in this field are at all surprised by that because of the nature of her work. The other thing is the FBI got involved because of the classification concern. It was sent to them, and they went to secure this material. And we heard yesterday reports about a Colorado company that was used by Hillary Clinton for the personal server, and it's described in the article as sort of a mom-and-pop's operation with a server that's held -- was held in the closet of like a bathroom at this location.

  • 10:29:10

    TURLEYAnd whatever shakes out in terms of how they protected their own servers, it reaffirms how dangerous this practice is.

  • 10:29:17

    REHMKaren Tumulty?

  • 10:29:18

    TUMULTYAnd my college Roz Helderman has a story that has just posted on the Washington Post, where she has looked at this company in Colorado called Platte River Systems, which had been keeping the Clinton's server, which at one point was in their house in Chappaqua. But when the FBI took custody of it last week, it was actually in a storage facility in New Jersey and supposedly was empty. It had been cleaned.

  • 10:29:48

    TUMULTYBut a spokesman for the company told my colleague I can't say for sure it was clean, and I can't say for sure that it wasn't. So there's a question of what was existing on the server, and there's also this question of Hillary Clinton herself getting to decide which emails are private and which emails are not. And the comparison I would draw here is back when President Obama came into office and wanted to carry a Blackberry so that he could communicate with his closest friends, he was told by the White House Counsel's Office, we'll give you this encrypted Blackberry, you can talk to 10 people on it, but you need to know that every single thing on this Blackberry, you should never assume it's private. It is all going to go to an independent archivist, and that independent archivist is going to decide what's private and what's not. And Hillary Clinton herself made that determination.

  • 10:30:41

    REHMSecretary Tauscher, who did, in fact, advise Hillary Clinton on using this kind of private email server?

  • 10:30:55

    TAUSCHERI believe she was advised both by people in the State Department, and she made her own preferences known that she wanted to have one device, and she wanted to be, you know, able to have some convenience. Look, I think it's very fair to say, and I think Secretary Clinton made clear yesterday, that any idea that this was for convenience has now evaporated and that there are clearly some lessons learned and some mistakes that were made.

  • 10:31:28

    TAUSCHERBut I think what's really important to focus on is that in the compendium of her work as secretary of state for four years, she worked tirelessly to do what everybody in the government wants us to do, which is to maintain the integrity of the classified side. All of those emails, all of her classified emails are on the classified server. This is a question about the unclassified side. There are always going to be disputes between the State Department and different bureaus inside the State Department, the intelligence community, which we all know has, you know, a dozen agencies, about levels of classification.

  • 10:32:13

    TAUSCHERAnd these disputes happen every day. And they are adjudicated through the interagency process and the White House. So this is about the unclassified information that she was sent. You know, I have a lot of respect for Jonathan, too. He's right, there should be a high test for whether something is classified or not, but the obvious test are the headers and footers, which should tell you that something is classified. And in none of the cases of these emails are there any headers and footers that indicate that this is classified information.

  • 10:32:50

    TAUSCHERSo I think, you know, if we keep this about what it's about, which is the unclassified side of things, you know, it's very safe to say that there have been lessons learned and that there are regrets and that there are -- that were mistakes made. But I think in the end, the classified stuff is where it is.

  • 10:33:04

    REHMKaren Tumulty, if none of these emails had either, and I say this as having worked for years at the Department of State and seeing those headings of confidential, secret, top secret, at both top and bottom, if none of these documents was originally labeled that way, how can she be so accused?

  • 10:33:40

    TUMULTYWell, a couple of ways, and again, Jonathan's the expert here. These are people who are sitting in classified briefings. So there's the content that's written. There's also the content that's in their heads. And so if they are making reference to material that originally came from the CIA, sensitive material, that, you know, again, whether it says classified on it or not, is secret.

  • 10:34:07

    TUMULTYThe other way that it can happen, at least as has been explained to us, is say the New York Times or the Washington Post has a report on some secret operation that the CIA is doing. And the people on an email chain are just kind of discussing their reaction to this published piece of information that was a secret. It is of some interest to the bad guys to be able to see what the reaction on the emails is.

  • 10:34:37

    REHMAnd you're listening to "The Diane Rehm Show." And here's an email on that very subject from Jake in Rochester, New York, who says, with the IRS and the Federal Human Resources Department being hacked, Edward Snowden's data cache, isn't the claim that this could have endangered national security being overstated? Nobody seems to be able to get security right. Jonathan Turley?

  • 10:35:16

    TURLEYWell, I hate to -- I would certainly not disagree with the sentiment that really all of these scandals are rather surprising about how porous the system really is. Frankly I would never have thought that Secretary Clinton could ever get away with using a personal server. I was floored when I heard that. Now I have to also say that Ellen raises a very good and legitimate point when she says that, you know, intelligence communities tend to over-classify, and I also think in fairness to Hillary Clinton, it is important to note that of the classifications that -- the material that's been flagged as potentially classified, a great amount of that is at the lowest level of classification. So I think all of that has to go into the mix.

  • 10:35:58

    TURLEYBut where I depart is that you're talking about someone who is secretary of state who, as Karen points out, is getting a huge amount of classified information every single day. And the biggest concern for security officers is really not the headers-and-footer documents that have the classification markings. It is, in fact, the second-generation communications, when you have a secretary of state talking about a document.

  • 10:36:26

    TURLEYAnd they've raised issues like signals intelligence that were in some of these emails. And that's the reason there is this presumption -- I mean, this is not an assistant deputy of some small agency. This is one of the prime targets for major hostile powers.

  • 10:36:44

    REHMAll right, and before we go to a break, Karen Tumulty, how much of this is political, and how much of this is genuine security concern?

  • 10:36:59

    TUMULTYIt's all of it mixed up into one big complicated mess. And so when Secretary Clinton gets up and says this is just once again my enemies coming after me, that is not an argument you can make when the FBI is involved.

  • 10:37:17

    REHMKaren Tumulty, national political reporter for The Washington Post. We'll take a short break here. Your calls, your comments when we come back. Stay with us.

  • 10:40:01

    REHMAnd we're talking in this hour about the growing controversy over the emails that Hillary Clinton on a private server during her tenure as secretary of state. Ellen Tauscher is former undersecretary for Arms Control and International Security Affairs at the State Department. She served as Democratic Congresswoman, representing California's 10th district. Karen Tumulty is here in the studio. She's with The Washington Post.

  • 10:40:44

    REHMJonathan Turley is professor of public interest law at the George Washington University's School of Law. Going to open the phones now, 800-433-8850. First to Toby, in Wilmington, N.C. You're on the air. Go right ahead, please.

  • 10:41:09

    TOBYThank you, Diane. This is what I'd like to say. I find it remarkable that so much energy is being expended on this controversy. It seems to be part of a scheme to bring down Hillary Clinton. I don't want to just say it's a scheme, like it's a vast right-wing conspiracy. However, I think this is a great opportunity for the Republican political machinery and their associated media to make it look like, once again, Hillary Clinton somehow had some criminology associated with her.

  • 10:41:39

    TOBYAnd I wonder they would -- if this would even be happening to a male secretary of state, given the fact, especially, that apparently Colin Powell had his own private email server. I realize the technology was different, but that was just a few years ago. And Ms. Clinton is not in the generation of people who are as technologically savvy, say, as young people. I'm not trying to excuse behavior that she might need to apologize for, but really, one, I don't see commensurate legislative outrage over all kinds of things that have affect us more, typical American citizens. And I -- and it doesn't -- this doesn't affect my life at all.

  • 10:42:16

    REHMAll right. Thanks for your call. Ellen Tauscher, your own opinions?

  • 10:42:23

    TAUSCHERWell, you know, of course we all -- all of us that are either elected or take the oath of office to protect the secrets of the country and to serve and defend the people of the country, we need -- we want to be reassured that everything was done properly. I think that the secretary has laid out very clearly what was going on on these unclassified emails with her personal email address. I think what's lost in the debate here is that all of the classified information that she dealt with over four years is all where it belongs, on the classified server. And I think it's important to have a debate.

  • 10:43:06

    REHMJonathan Turley, you're smiling at that.

  • 10:43:10

    TURLEYWell, I'm always smiling because I know the distinction that Ellen is making, but my honest guess is that at the end of this process we will find a great deal of classified information that was -- would have been deemed classified at the time. It was not reviewed because this is part of the contemporaneous communications that occur in office -- in actual offices in the State Department or through email. And that is not a very good distinction. You know, you are trained on those second generation communications. And I expect it will be found to have been -- that classified information went over this system.

  • 10:43:48

    REHMJonathan, tell me how it will be determined as to whether this is criminal behavior or not.

  • 10:44:00

    TURLEYWell, right now I think that Hillary Clinton's in a good position. She certainly has very gifted lawyers that are looking after her interests. The most likely criminal aspect would be USC -- 18 USC to 1924. That is the law that says that you can't take classified information or house classified information in unauthorized locations. And that can include email systems. That can include computers and servers at home.

  • 10:44:30

    TURLEYBut that standard does require a knowing act. And on that, I think you can get a great deal of support. I think that the other issue, as you know, being in this town a long time, that we really see the greatest danger, as criminal defense attorneys in Washington, on the reaction to these scandals. It is false statements that are made, so called 18 USC 1001 violations. Most of the really tough prosecutions that have occurred, have occurred on the response of people to allegations of this kind.

  • 10:45:04

    TURLEYAnd so you have to see how all this shakes out. There are people at risk here. I think there will be classified information that went over the system. People failed to do their job. The question though is when that gets to criminal culpability is a question of center or knowledge or recklessness in different statutes.

  • 10:45:24

    REHMHere's an email from Pat in Houston, who says, "All of this is the fruit of the poisonous Benghazi tree and should be dusted away as another propaganda exercise by the right." Karen Tumulty?

  • 10:45:46

    TUMULTYWell, certainly it was the Benghazi committee that first came across emails with this domain address. But I think that, again, it wasn't the Benghazi committee, it was two inspectors general, one for the State Department, one for the intelligence communities, who first raised the concern and went to the FBI in early July and said, look, there is some sensitive information that is out there where it shouldn't be and we need to get our arms around it. That is a, you know, legitimate and nonpartisan concern.

  • 10:46:21

    REHMAnd, Ellen Tauscher, how do you react to that legitimate concern?

  • 10:46:28

    TAUSCHERI share the concern. But let's keep in mind that part of this is a snapshot in time. What was unclassified 18 months ago, while Hillary was still secretary, could be dramatically different now. Now, obviously signals intelligence and other things like that are probably always going to have a higher classification. But, once again, this review by the FBI is for the appropriateness of these emails to be disseminated to the American people, which effectively means everybody in the world.

  • 10:47:05

    TAUSCHERAnd so the lens is an August of 2015 lens. And, you know, there's no look-back to what was going on back in 2013 or 2012 when it was an unclassified email. So, you know, that's why this is not a criminal investigation. This is the appropriateness of whether these emails should be released publicly, meaning that allies and adversaries will see them, and that it's important that we do this the right way. I'm very appreciative that both the I.G.s from the State Department and the I.C. are doing everything they can to make sure we get this right.

  • 10:47:45

    TUMULTYAnd had she not decided to do all of this on a private server, on a private email account, these issues would have been raised about the material, but the government would know where it was. It would not be essentially, you know, sending agents to New Jersey and asking questions of a firm in Denver and, you know, trying to track down all of these email correspondence that she had.

  • 10:48:09

    REHMAnd Secretary Tauscher, if what Secretary Clinton did was, say, even so much as reckless, as her critics contend, what does it say about senior staff at the State Department? Did they advise her to move forward in her own way or did they advise her strongly against it?

  • 10:48:45

    TAUSCHERWell, you know, let me tell you that some of the smartest and most patriotic people I've ever worked with were in the State Department. My three bureaus, as undersecretary, have 600 people that are some of the world's experts on biochemical nuclear weapons, you know, treaty law, export control law. But on, you know, also in the secretariat, as I said very early on, we have a number of former ambassadors and very high-ranking civil servants who are in the background making sure that all of this very, very important national security assets that are moving around, both electronically by email, but also by paper, are secure.

  • 10:49:31

    TAUSCHERAnd, you know, I don't think anybody's going to get thrown under the bus here. I think what's important to say is that I believe every effort was made to secure the unclassified side of her emails. And, you know, I think as we -- as this unravels, I think it's important to focus on the fact that the FBI is involved primarily to make sure that the custody of this information is secure and that what is released is properly classified so that things that we don't want to go out, for one reason or another, don't go out.

  • 10:50:06

    REHMSo you would not under any circumstances see a criminal case being made here?

  • 10:50:16

    TAUSCHERNo. I do not. And I think that, you know, I've read Michael Mukasey, who was a former attorney general, had an article in The Wall Street Journal this weekend, which I think was pretty much a partisan's greed. I mean when people are talking about the Espionage Act, you have to put your hand up and say, wait a minute. Let's step back a minute here. We're talking about unclassified emails, a majority of which were about, you know, what kind of toppings did she want on her pizza and what color tablecloth was going to be at a wedding. And the rest of them were all sent back to dot gov email addresses that are already part of the unclassified State Department server.

  • 10:51:01

    REHMJonathan?

  • 10:51:02

    TAUSCHERAnd all of the classified stuff is on the classified server.

  • 10:51:06

    REHMAll right. Jonathan?

  • 10:51:07

    TAUSCHERAnd so we're talking about unclassified information that the intelligence community and the State Department are right now trying to decide what the proper classification is.

  • 10:51:16

    REHMAll right.

  • 10:51:16

    TAUSCHERI think that's appropriate and I don't think we should release anything until we get that right.

  • 10:51:20

    TURLEYI think part of the problem, of course -- and this is what is so perplexing for the FBI, is that, of course, the Clinton staffers cleaned the server, but they certainly admit to deleting tens of thousands of emails. And how effective the cleaning was, whether those emails compromised anything is one of the concerns of the FBI. And one of the more surprising things is that Secretary Clinton used an I.T. specialist, who I think was associated with the campaign, was allowed to do that. And then he was then put on the State Department payroll, which struck many of us being a bit odd.

  • 10:51:56

    TURLEYBut when people talk about the risk to national security, you have to remember that the State Department is not just a diplomatic organization, it's also an intelligence generating information. The secretary hears of sources, people whose lives are at stake, who are helping the United States, moves that we're going to make internationally that can put lives at stake. And most importantly, methods, like signals intelligence. It is saturated with the most important secrets that go through our government. And that's why these inspector generals have raised this flag, I think.

  • 10:52:27

    REHMAll right. To Thomasville, Ga. Henry, you're on the air.

  • 10:52:33

    HENRYThanks for having me on the show. I just want to bring up the point that (unintelligible) that Hillary Clinton exchanged is classified or not, whatever the status is, I think for me the concern is Hillary Clinton's decision to communicate on a non-secure server as secretary of state is very worrisome. And to do it 60,000 times. I mean it shows poor judgment and -- at base line. I mean, is this the person we want leading the free world? Rather she broke any laws or not, is not a concern of ours. The public will never know. Thirty-thousand of the emails are missing. And I just think, you know, to defend her is ludicrous. It's…

  • 10:53:15

    REHMAll right. Thanks for your call. And you're listening to "The Diane Rehm Show." Ellen Tauscher, poor judgment?

  • 10:53:28

    TAUSCHERI think that everybody just needs to step back and remember that the secretary's intentions were to have convenience, to communicate with family and friends and use one device. I think that everybody looks back now at that decision, including secretary, and says, for whatever convenience may have been achieved, it created a sense of concern about how some things were managed. And I think it's important that we go forward. I think that these emails being released, you know, is something that the secretary made very clear from the beginning she wanted people to see the emails.

  • 10:54:07

    REHMBut the -- if I may, if I may, Ellen Tauscher, the question of poor judgment is really what's on the caller's mind and perhaps on a great many voters' potential voters' minds, her standing with the public has dropped considerably. Now it's below 50 percent. So this concern about judgment is really there.

  • 10:54:41

    TUMULTYWell, and…

  • 10:54:41

    TAUSCHERI agree with you, Diane. But I think it's important, too, that people remember that, you know, this is in retrospect. And I think that the secretary has made clear that she regrets using one device, having a convenient, you know, private email address and a server. But I think that what's important is that we go through this process. And then we can see what the secretary has to say.

  • 10:55:09

    REHMAll right. Karen?

  • 10:55:10

    TUMULTYWell, it certainly is showing up in the polls and in the favorability numbers for Secretary Clinton. And I think one reason is that it sort of reinforces what people have seen from her throughout her career, which is this tendency to secrecy. Whether it was refusing to turn over the White Water documents, which, you know, that investigation turned out not to be about a whole lot, but, you know, the fact that she wouldn't give up the documents led to an independent counsel who turned out to be Ken Starr and we all know where that went.

  • 10:55:38

    TUMULTYSo there is this sort of characteristic tendency on her part that I think this whole saga, whether you want to call it a scandal, a controversy or nothing at all, is kind of stirring up again.

  • 10:55:49

    REHMBut, at the same time, to be fair, Hillary Clinton has been a target from the time she and her husband got to the White House.

  • 10:56:01

    TUMULTYAbsolutely. And, again, she, you know, this is clearly how she views this entire thing. She keeps saying that this is just, you know, it's just a political issue, that this is really just all about Benghazi.

  • 10:56:14

    REHMWell, we shall see as time goes on, as the FBI, the investigative elements of our government go through this. It's going to be fascinating to see where it goes. Thank you all. Ellen Tauscher, former undersecretary.

  • 10:56:35

    TAUSCHERThank you.

  • 10:56:36

    REHM…at the State Department. Karen Tumulty, of The Washington Post and Jonathan Turley of the George Washington University's School of Law. And thanks all for listening. I'm Diane Rehm.

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