Before Kerry, no SoS ever had an official e-mail account. Powell and Rice both used their private accounts. Clinton faced a bigger issue since e-mail use had become basically standard, and she was very politically connected, and if someone sent her anything political on a .gov address it’s a felony under the hatch act. And She was clearly aware of how the pubs would come after her. There was another issue, which is that if it was on .gov then its archived, even if personal, and given how the Pubs have rifled though her life, she did not want that.
Her private e-mail server presents two different issues. The first is whether it compromised top secret information (which could be criminal) and the second is if it complied with government record keeping requirements under the FOIA. This second issue is NOT criminal. The optics may be bad, but there is no criminal or civil sanction for failing to keep records under the FOIA.
As to “criminal” there would have to be a showing “beyond a reasonable doubt” that she recklessly and knowingly released secrets. The first problem is that nothing was marked secret, so the government would have to show she knew it was secreat. The second is that there is no evidence anything was hacked. And third, there is a lot of evidence that everyone knew/believed that the .gov e-mail system was hacked, so the alternative was not exactly safe either.
But the real kicker is that what is now being retroactively marked “confidential” or “highly confidential” is not in any respect confidential, and the information never started with Hillary, rather it was sent to her, or forwarded to her, by other officials in DoD, DoS, or DoJ. This is a very good piece in the WSJ, which (if you read between the lines, the WSJ will always slant things) shows that Clinton was a bit player, simply having things forwarded to her at the end, after many others, mostly career people, had send the things via e-mail.
The key take always are that e-mails on drone strikes in Pakistan appear to be the “top-secret” e-mails at issue, but (1) what was secret about them is not in any normal sense secret (everyone knew, we just were officially denying it). If this was put before a Jury they would laugh at it, and (2) there was no real alternative to e-mail (as the article shows, the official classified channels were too slow) which is why everyone used e-mail in these few cases.
A further report, from the Times says basically the same thing, and confirms (to my reading) that the 22 “top-secret” e-mails at issue all involved the CIA program in Pakistan, which is what the WSJ reported on:
Yet, for each of these e-mails they are (1) not marked secret, and (2) were originally sent OUT OF NEED by people with years of experience. If anyone is criminally culpable, it the ambassador in Pakistan, people in DoD and DoS, all of which sent this stuff via e-mail in the first place, and then to Clinton. Under the guidelines that govern these things, Clinton (who is less culpable) can’t be charged unless others are charged, and that is not going to happen.
Clinton’s problem has been that the IG (inspector general, the guy who released a report on May 25) is a partisan hack, who has been working with the republicans, and who is on a vendetta to show he is protecting national security. There is a lot of Ken Starr in him. Yet to show he is full of shit, Clinton would need to reveal what the e-mails say, none of which (if the Times and WSJ are to be believed) even remotely a danger to national security or something any normal person would have been worried about.
What Hillary needs is (1) for Obama to come out and defend her, or (2) to get a good chance to explain what actually happened, or (3) best of all have Obama declassify the e-mails noting that it is in the national interests to allow the people to understand the issues and decide. But Obama can’t do any of these things until the FBI finishes its investigation.
Hopefully in the next month the FBI will end its investigation, and then when Republicans attack (as they will, they can’t help themselves) and claim it’s a cover up, Obama releases everything to show there was no cover-up.