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I have a new piece up at CNN entitled "FBI Demolishes Hillary Clinton's Email Defense" discussing FBI Director James Comey's statement yesterday on the FBI investigation into Clinton's emails.  It begins:

While headlines about FBI Director James Comey's unprecedented announcement Tuesday largely focus on the agency recommending no charges against Hillary Clinton, the director's statement was a stinging public indictment of Clinton, her aides, and even her attorneys. While many had already concluded that charges were unlikely, the FBI investigation revealed new facts that illustrate that the possibility of criminal charges was closer than the public knew.

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The Wall Street Journal has a new piece by Byron Tau highlighting a crucial piece of information in the 墙翻伕理网址 obtained by Judicial Watch in their FOIA lawsuit against the State Department.  The piece phrases it as "Hillary Clinton Failed to Hand Over Key Email to State Department" but the real question is whether - and when exactly - Clinton destroyed 伕理http (as explained below, it is actually multiple emails).  I noted the possible significance of this email in my CNN piece last month as it once again raises serious questions about how Clinton's attorneys were determining what is, and is not, a federal record.  As I've argued from the beginning, Clinton and her attorneys should not have made those determinations and will likely continue to suffer political - if not legal - consequences for doing so.

The email was first highlighted in the highly critical State Department Office of Inspector General report.  Just after it was released Justin Fishel at ABC News pressed the State Department at this 墙翻伕理网址 about why it was not among the Clinton emails previously disclosed and an unnamed State Department official said they weren't sure where it came from, but that the emails previously released were only the ones Clinton had handed over.

The production of the full email appears to answer the mystery - it is marked in the lower right with "HA 09/01/15" which seems to indicate it was part of the September 1, 2015 production from Huma Abedin 墙翻伕理网址 that included "1.4 gigabytes of electronic files containing 348 pages of documents and 6,714 emails."  The State Department confirmed this to Tau.

This email in particular is important because - while it is not a slam dunk by any stretch - it is evidence of Clinton being motivated by something more than mere "convenience" in her choice to use a personal email address for State Department business.  The fact that Clinton did not produce it raises legitimate questions. It was not from the time prior to March 2009 when some Clinton emails were missing as a group, nor is it from any of the periods of time in which the National Archives identified "gaps" in the Clinton production.

The remaining possibilities are either that (1) Clinton deleted it early on in the normal course of business or (2) that Clinton and her attorneys categorized this email as "personal" and then destroyed it.

(1) Clinton deletion in the ordinary course of business

This possibility seems less likely based simply on the fact that in reviewing Clinton's other emails, she seems to be a bit of an email hoarder.  Consider, for example, other Clinton emails from the same day - they include a one liner from Jake Sullivan about "Denis" still being in a meeting, an email from Clinton about whether she should accept an award from designer Diane von Furstenberg, and another email from Huma simply forwarding a news article about the French government.  It is odd that Clinton retained this last email with the generic news article about France, but did not retain any part of the email chain that is the subject of this post which begins with scheduling a call with the resigning French Minister of Foreign Affairs Bernard Kouchner, which is arguably more substantive.  Other email chains from the same day are also produced as a series of individual emails, which highlights the fact that if Clinton decided to delete this email in the normal course as an unimportant scheduling email she apparently would have been deleting four emails - two emails from her inbox and two emails from her outbox.  It remains a possibility however.

(2) Destroyed as a "personal" email

The other possibility is that this email survived and was reviewed by Clinton's attorneys.  Under the detailed description Clinton has provided about that process, this email should have been captured.  According to Clinton, her attorneys identified any potential "non-'.gov' correspondence" by searching for first and last names of State officials including all of Clinton's close aides and staff, which should have included Huma and should have included the emails in this chain.  Clinton's current description also expressly states that "each email" was reviewed "erring on the side of including anything that might be even potentially work-related."  Again that would pretty clearly seem to include the emails in this chain.

Yet the detailed review of "each email" is actually what concerns me here. I presume that these emails were reviewed by Clinton's lawyers for production in a manner that is very similar to the production of documents in litigation.  It would not surprise me if there were rough categorizations into a few different piles, one of them being a "hot documents" file for close review. And it is not difficult to imagine Kendall and/or Mills and any junior attorney working on these emails having a meeting where they specifically discuss this email, that it is an inconvenient document that could be misinterpreted, that it is an email between two clintonemail.com addresses, that on its face it is not clear what "Kouchner" is being referred to here, and it is explicitly referring to "personal" information and after long analysis and thought they "get comfortable" that this goes in the "personal" pile for eventual destruction that would preclude second guessing.

If this sounds far-fetched, I would simply note that Kendall's letter (last attachment in this filing) describing his interpretation of the federal records laws can charitably be described as extremely aggressive (although I would go as far as to say manipulative and clearly wrong).  He was of course simply doing his job as an advocate for his client, but this is precisely why he should not have been making records determinations on her behalf and why Clinton has exposed herself to allegations, whether real or conspiratorial, that her emails were selectively sanitized and federal records were destroyed.

Destruction of Evidence at the 9/11 Military Commission: A Quick Theory

The defense motion in the 9/11 Military Commission case objecting to the destruction of evidence in violation of a preservation order based on a secret order from Judge Pohl (and requesting the Judge's recusal as a result) was released in redacted form today (see Spencer Ackerman's coverage here).

What was destroyed and why? Those answers are redacted, but here's a theory based on nothing but my own speculation.

Ackerman and Carol Rosenberg point to Judge Pohl's December 2013 order to preserve CIA black sites abroad as the most likely relevant preservation order.  If that is true, the redacted defense motion released today says that about six months later there were secret ex parte communications between the government and Judge Pohl as a result of which Judge Pohl "authorized the government to destroy the evidence in question."

One possibility is that the "evidence in question" was specifically the remnants of the CIA black site in Poland at Stare Kiejkuty and the "why" was the release (or pending release) of two European Court of Human Rights decisions -- seven months later in July 2014 -- in Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland that found Poland violated the European Convention on Human Rights for failing to carry out a real investigation into the torture of detainees at the CIA black site, thus obligating them to undertake one that might finally include collecting forensic evidence from that black site.

To flesh the theory out a bit, if six months after Judge Pohl's Dec. 2013 preservation order -- in about June 2014 -- the U.S. government acquired intelligence that the European Court of Human Rights would soon find Poland in violation of its legal obligations under the European Convention to conduct an effective investigation into the CIA black site; and if the U.S. knew that Poland could therefore no longer play along with the U.S. in delaying and obstructing an internal Polish criminal "investigation" -- on the back of which Poland had refused to provide evidence to the Court -- that had been going nowhere for years; it would not be a stretch that the U.S. would go to Judge Pohl ex parte and say that the CIA needed to destroy the remnants of the Polish black site because failing to do so could result in evidence falling into the hands of uncleared Polish investigators creating a U.S. national security issue, potentially providing actual confirmation of the black site which the CIA had studiously avoided, and creating political and diplomatic problems for U.S. relations with the Polish government to whom the U.S. had made promises of protection.

Moreover, the prosecutors could have argued for the ex parte nature of the discussion by stressing the sensitive nature of intelligence about the result of a pending court decision and the foreign affairs concerns that could not be shared with the defense.

Just a theory.  Katherine Hawkins at the Constitution Project also had an interesting theory that it was a black site in Afghanistan.

.@charlie_savage I think it's prob BROWN in Afghanistan, only one whose confirmed existence stretches into protective orders taking effect

— KatherineHawkins (@Krhawkins5) 伕理http

Apologies if anyone has already advanced the ECHR theory and I missed it and I will edit the name of this post to "A Quick, Discredited Theory" if and when it is shown to be wrong.

UPDATED to fix a typo.

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I have a new piece up at Just Security entitled "Why Federal Agencies Must Still Preserve (and Should Finally Read) the SSCI Torture Report" that digs down on the legal status of the SSCI Report under the federal records laws.  It begins:

This week’s news that the CIA’s Office of Inspector General destroyed two copies of the SSCI Report on the CIA’s Detention and Interrogation Program comes on the heels of last week’s DC Circuit decision in ACLU v. CIA that the SSCI Report is not an “agency record” subject to the Freedom of Information Act (FOIA). The 墙翻伕理网址 decision is another setback for transparency over torture and means that a review of the complete 6,700-page Report for public release will not come through FOIA anytime soon.

The DC Circuit’s decision does not mean, however, that agencies can destroy their copies of the SSCI Report or return them to the SSCI, as Sen. Richard Burr demanded earlier (and has apparently repeated since the DC Circuit’s decision). Agencies should still have to preserve their copies of the SSCI Report as agency “records” under federal recordkeeping laws, which should free them to finally open the Report, read it, and learn the full history of our use of torture in order to never repeat it – precisely what the SSCI intended in the first place. Unfortunately, the official empowered to make a determination binding on all agencies that the Report is a “record” – the Archivist of the United States – has thus far been reluctant to enter the fray despite demands from Sens. Dianne Feinstein (D-Calif.) and Patrick Leahy (D-Vt.), as well as a group of 墙翻伕理网址. Perhaps the realization that the lack of a mandate from the Archivist could have already contributed to the CIA’s “inadvertent” destruction of two copies of the Report – and the DC Circuit’s FOIA decision –– will finally persuade the Archivist that he must act to protect agency copies of the Report.

Previous coverage of the status of the SSCI Report on this blog is 伕理http and previous coverage of the Archivist's authority to determine record status is 墙翻伕理网址.

Clinton Email Controversy

I have a new piece "How Serious is the Clinton Email Controversy?" up at CNN that discusses the controversy in light of the new allegations that some of the emails contained classified information.  It begins:

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Previous coverage of the Clinton email issue on this blog is here.