By Andrew P. Bakaj, Esq.
Recently I have had individuals, including those within the Federal Government, reach out to me with questions about the State Department’s announcement that administrative investigations will begin into Secretary Clinton’s use of an unauthorized email server at her home. The questions were asked in light of the upcoming Presidential election and the investigation’s possible impact on it. My goal is to answer some of these questions in order to help interested individuals understand exactly what is going on based on the information we publically know (or believe we know).
This needs to be underscored: while the general issues being addressed in the investigations are not entirely new, what is different is the prominence of the matter. Ultimately, this involves a presumptive nominee for President. Regardless of the political impact this may have, there are processes and procedures for handling such matters. For full disclosure: I have previously interned for Secretary Clinton when she was a United States Senator. This is not a political piece, but an overview of federal investigations and security clearance matters based on my experience both with the Federal Government and as a private practice attorney representing federal and national security employees who find themselves under investigation or possibly losing their security clearance.
Federal Criminal Investigation
The first question that was posed to me was why is there an administrative investigation when FBI Director James Comey declined to indict Secretary Clinton? The answer is fairly straight forward. The FBI’s investigation involved identifying and investigating whether Secretary Clinton, and any other individuals, violated federal criminal law. Director Comey made it clear in testimony on Capitol Hill that based upon the FBI’s inability to identify specific intent for Secretary Clinton to violate federal criminal law, they did not recommend the Department of Justice (“DOJ”) prosecute her. Recommending that no one be criminally prosecuted is different from not referring the matter to DOJ. The FBI did refer the matter to DOJ and Director Comey, as FBI Director, recommended the matter not be prosecuted. Once referred, it was ultimately up to Attorney General Loretta Lynch to make that final decision. Ultimately, DOJ declined to prosecute.
Criminal Investigation vs. Administrative Investigation
The standards governing federal administrative investigations are much lower than criminal investigations. The critical difference: conviction for a criminal offense requires that the evidence be proven “beyond a reasonable doubt.” This is the highest standard because such a conviction results in the loss of liberty. With federal administrative investigations, the burden of proof is either “a preponderance of the evidence” or “clear and convincing evidence,” depending on the matter being investigated. It is a lower standard because, if a violation is found, the worst that can happen is that someone could ultimately lose their security clearance and their job. No one has a “right” to a particular job or a security clearance. Liberties are not at stake. Furthermore, when it comes to matters involving security clearances, the investigation is skewed in favor of national security. That is to say, the amount of evidence it takes to deny or revoke someone’s security clearance is lower because, on balance, if someone is identified as a security risk the decision will be in favor of denying access to classified information to the detriment of the individual’s ability to obtain a security clearance.
Why an Administrative Investigation Now?
Whenever facts impact various federal law, rules, and regulations, if a criminal investigation is ongoing the administrative investigation takes a back seat. Criminal investigations can result in indictments and prosecutions, and the manner in which those investigations are conducted must be in line with strict criminal procedures and guidelines. The reason goes back to the evidentiary standard described, above.
Who is Being Investigated?
This is a difficult question. It is possible that Secretary Clinton’s personal conduct is being investigated administratively. However, given that Secretary Clinton’s use of a private email server, or at the very least use of an e-mail address not connected to the State Department, was fairly well known by officials within the State Department, it is conceivable that individuals many rungs below her and her senior staff are under administrative investigation. For example: anyone who could have stopped it, whether it was the State Department’s Security Officers, Information Technology specialists, or others, all of those individuals could be under investigation. It doesn’t mean that they are, but they could be. I think a legitimate concern here could be that a GS-12 or GS-13 employee’s action, or for that matter inaction, could be construed as engaging in administrative violations.
While everyone is concerned about Secretary Clinton, I think about her senior aides who, if she is elected as President, may be unable to obtain a security clearance. I also think about the career federal employees and foreign service officers who’s career this may impact for years to come.
What is Being Investigated?
This is a tricky question as well. Administrative investigations really run the gamut. I am certain that the Office of Inspector General and others want to know what fail-safe points failed or, in the alternative, were there any fail-safe’s in place to begin with? That is to say, how did we get to this point in the first place? Those findings could be used in yet another, separate, administrative investigation: a security clearance investigation and adjudication. I don’t believe Secretary Clinton will be under a clearance investigation at this time because she is no longer affiliated with the State Department in an official capacity. Conversely, other individuals still at the State Department may be.
As Director Comey stated in testimony, administrative actions can be taken against employees who may not have violated criminal law but who have demonstrated poor judgment or willful disregard for policies and regulations. Those actions include, but are not limited to, reprimands, suspensions, and termination of employment. Those are human resource penalties. Regarding security clearances, actions could include suspensions and revocations (which would lead to possible termination of federal employment). All of these decisions will require fact finding, ie. investigations, before decisions are made.
Duration of the Investigation(s) and its Impact on the Election
Administrative investigations can take well over a year. Adjudicating a security clearance can take just as long. In this particular case, the administrative investigators and security clearance adjudicators can adopt reports and facts gathered by the criminal investigation. This could reduce the investigative time period significantly. Ultimately, it depends on how many people are under investigation, how many investigators are actively working the cases, and how much of the investigation has to be conducted anew.
As to the impact this will have on Secretary Clinton’s presidential ambitions, that’s up to the American people. The same is not true for her aides and any foreign service officers under administrative investigation.