Danielle McLaughlin: 'America's future hinges on Clinton's email setup'
OPINION: In her fourth 'Kiwi in New York' column, Danielle McLaughlin ponders how a home computer setup came to be so significant in the presidential campaign.
Who could have predicted that an email server would put the 2016 race for the US presidency on a knife-edge? That an IT guy might be in possession of critical knowledge that hands the keys to the White House to Donald Trump?
Get used to the idea that this year, the dreary foretells the dramatic. The FBI investigation into Hillary Clinton for violating US laws protecting classified information isn't just politically toxic for Clinton. It comes with enormous consequences for the direction of the US and her allies.
It's also legally murky. In my line of work as government investigations defence lawyer, I've spent many hours in windowless rooms with the FBI. Sitting alongside clients. Often outnumbered by government investigators, three to one. The line between guilt and innocence is often less about "what" happened, and more about "why". And that is the key here.
It is well known that Clinton used a private email address during her tenure as Secretary of State. Two of her predecessors did the same. What sets Clinton apart, and what puts her candidacy on the knife-edge, is that her email was routed through a privately-purchased server. A server that her IT guy, Bryan Pagliano, installed in the basement of her Chappaqua, New York home. It's an unceremonious place for the centre of a scandal that might bring down a presidential candidate. But that's often the nature of scandals.
It is illegal under US law to knowingly take classified information with the intent to keep it at an unauthorised location. This is cut and dried if you imagine a stack of documents emblazoned with a "classified" stamp, stuffed in a leather satchel, and stolen from a safe under cover of night. What happened here is more nuanced, and less likely to show up in a Hollywood script. Investigators have two big questions. Did she know her emails contained classified information? And did she intend to "take" the information and "keep" it illegally on that basement server?
As to the first question, Clinton has said that no email she sent or received while Secretary of State was marked "classified". The 30,000 emails she turned over to the FBI bear this out. Some of the emails are certainly embarrassing. Like those from US Ambassador David Huebner to Clinton, bemoaning his incompetent embassy staff in Wellington and Apia. But the only classified markings on Clinton's emails are post-hoc designations placed on about 2000 emails that the US government doesn't want released. She wrote fewer than 100 of them.
The second question is where Pagliano comes in, and where Clinton's candidacy – and, frankly, the fate of America for the next four years – sits on its uncomfortable edge. Did Clinton understand that using the server meant that she had "taken" all of her emails and was "keeping" them physically in her possession at home in New York?
My money's on "no," based on what we know right now. Clinton's a lawyer. But she's no IT guru.
I don't know for sure, but I suspect that her reasons for using a private server included convenience and a desire for privacy. That's what more than 35 years in the public eye, chased by scandals, real and imagined, will do to a person.
What I do know for sure is that Clinton's immediate future will involve one of those small windowless rooms. She will be questioned on her motives, and challenged with Pagliano's testimony. Much is at stake, for her personally, and for America's political stability. If Clinton tumbles off that knife-edge, a man who seems to spend more time on Twitter than formulating plans for governing the United States will likely have a clear path to the White House.
* Expat Kiwi Danielle McLaughlin, a Manhattan lawyer and American TV political commentator, is the Sunday Star-Times' correspondent in the USA.
- Sunday Star Times