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On Email Controversy, Clinton's Audience Is Voters And Investigators


The State Department is preparing to release another batch of Hillary Clinton's email messages today. It's the latest in what Clinton has called a process of drip, drip, drip. And it will extend into early next year. The email controversy has been causing the presidential hopeful a lot of political problems.

But here's one reason the former secretary of state has been careful in how she responds to questions. The FBI is investigating the possible compromise of security information. So when Clinton gets questions from reporters and voters about her emails, she's also talking to investigators. With us here to talk more about that is NPR justice correspondent Carrie Johnson.

Good morning.

CARRIE JOHNSON, BYLINE: Good morning, Renee.

MONTAGNE: Let's start with what Hillary Clinton has been saying all along as to why she decided to use a private server for her emails. She said - and has been saying - it was a matter of convenience.

JOHNSON: Yes, Renee. She says now that home server in her house turned out to be really inconvenient. There was a new wrinkle on Sunday's "Meet The Press." Moderator Chuck Todd asked whether she had Congress in mind when she set up that personal server. Let's take a listen.


CHUCK TODD: Republicans have been coming after you for years. You might have - may have been running for president in the future. And you wanted to make it a little more difficult for congressional investigators to subpoena your government emails and a little more difficult for Freedom of Information Act requests. Is that it, fair theory or no?

HILLARY RODHAM CLINTON: It's totally ridiculous. That never crossed my mind.

JOHNSON: Now, there's a reason she might have decided to answer that way. Remember, Renee, as you said, Clinton is talking to two audiences here - voters and investigators. And when it comes to avoiding subpoenas and taking steps to avoid subpoenas, lawyers will tell you there's an important law Congress passed in 2002 after the Enron scandal. That law makes it a crime to get rid of documents in anticipation of an investigation by the Justice Department or by Congress - a crime called obstruction of justice.

MONTAGNE: Well, the FBI is investigating how and why sensitive information got into her server. But Clinton herself is not a target of that investigation. She's talked about the issue of classification a lot -that is, to say whether something is classified. And here she is at a press conference last month, part of a long exchange with a reporter from Fox News.


CLINTON: Whether it was a personal account or a government account, I did not send classified material and I did not receive any material that was marked or designated classified, which is the way you know whether something is.

JOHNSON: Now, what's significant about that from a legal standpoint, Renee, is that she's talking here about personal knowledge. And that matters in the law because in order to prosecute someone for mishandling classified information, the Justice Department needs to show a defendant knowingly violated the law of it - the information was classified, but they went on to send it anyway.

MONTAGNE: Well, there's also this other question of whether Clinton turned over all of her messages that were work-related.

JOHNSON: That's right. The State Department and the Defense Department, in the past week, say they've turned up some new emails, messages, apparently, not shared with investigators in Congress. Clinton has signed a sworn statement as party of a lawsuit last month. In it, she didn't say that she turned over all the emails. Instead, the document says Clinton directed other people to take messages that are or might be considered federal records and turn them over to the State Department.

And Clinton says she believed that had happened as of August. Here's why this matters under the law. She didn't sift through these emails herself. Instead, she relied on lawyers to do that work, and reliance on attorneys is, of course, another legal defense getting us back to where we started - that issue of two audiences. And did I point out that Hillary Clinton is a Yale Law School graduate?

MONTAGNE: No, you didn't, but now you have. And it's something to think about. Thanks very much. We will obviously continue talking about this in the weeks and months to come.

JOHNSON: You're welcome. Transcript provided by NPR, Copyright NPR.

Carrie Johnson is a justice correspondent for the Washington Desk.
Renee Montagne, one of the best-known names in public radio, is a special correspondent and host for NPR News.
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