The State Department confirmed on Friday that a number of the emails found on former Secretary of State Hillary Clinton’s private e-mail server contained highly classified material and therefore decided to withhold that email from disclosure:
The State Department acknowledged for the first time Friday that “top secret” information has been found in emails that passed through the private email server Hillary Clinton used while leading the agency, elevating the issue in the presidential campaign three days before the hotly contested Iowa caucuses.
The information was contained in 22 emails, across seven email chains, that were sent or received by Clinton, according to a State Department spokesman. The emails will not be disclosed as part of an ongoing release of Clinton’s email correspondence from her years as secretary of state, even in highly redacted form.
The finding is likely to complicate Clinton’s efforts to move past the controversy, which has dragged down her poll ratings in her bid for the Democratic presidential nomination. And it comes as her potential Republican rivals have called for Clinton to be prosecuted for what they say was her mishandling of national secrets.
In responding Friday, Clinton’s campaign took the unusual step of criticizing the intelligence community, accusing spy agencies of engaging in “overclassification run amok.” Some Clinton allies suggested that intelligence officials were politically motivated.
Clinton’s spokesman, Brian Fallon, presented the findings as the latest turn in an ongoing struggle between government officials over whether to retroactively classify emails that were not marked as sensitive when they were sent and that Clinton thinks should be made public.
“After a process that has been dominated by bureaucratic infighting that has too often played out in public view, the loudest and leakiest participants in this interagency dispute have now prevailed in blocking any release of these emails,” Fallon said. “This flies in the face of the fact that these emails were unmarked at the time they were sent, and have been called ‘innocuous’ by certain intelligence officials.”
Fallon told MSNBC that withholding the emails from view in their entirety made it impossible for the public to independently judge the validity of the State Department’s conclusion.
Friday’s announcement came at a politically sensitive moment for Clinton. She is locked in a dead heat in Iowa with Sen. Bernie Sanders of Vermont, whose long-shot bid for the Democratic nomination has gained momentum in recent weeks, and the revival of the email matter could increase anxiety among Clinton supporters who had hoped that the issue would fade as the primaries began and a general election loomed.
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The Friday announcement was significant because it appeared to undercut Clinton’s argument in recent months that she was merely the victim of a bureaucratic squabble between overly strict analysts at the intelligence agencies and more reasonable reviewers at the State Department.
The intelligence community’s inspector general had previously indicated that he thought that some of the emails contained top secret material. Until Friday, however, the State Department had declined to concur with that assessment.
State’s reviewers had said that more than 1,300 Clinton emails contained classified material, but the vast majority were just “confidential,” a lower level of sensitivity.
Clinton has said that none of her emails were marked classified when they were sent. But it is the responsibility of individual government officials to handle classified material appropriately, including by properly marking it as classified, according to experts.
Clinton has also said that the information in question was not classified at the time the emails were sent — a point that intelligence officials have disputed.
This report isn’t exactly new information, instead what we have here is the State Department essentially confirming the report that came out earlier this month that an intelligence community Inspector General had determined that some unknown quantity of the email chains that were found on Clinton’s server were determined to be highly classified, in some cases bearing a classification above “Top Secret” due to the sensitive nature of the material that was contained in the message. As was the case when I first wrote about these reports, it’s still unclear whether the material in question was marked classified when it was sent to/received by Clinton on her private server. If that was the case, then there would be a clear violation of the laws baring the sharing of classified information on unsecure networks or with people who don’t have authorization to view the material. If it wasn’t marked classified when Clinton received it, it’s not clear based on these reports if someone made the decision to remove the classified designation from the material before sending it or if we are talking about material that wasn’t marked classified at the time but has only been designated as such as part of the ongoing review of Clinton’s emails before their release to the public. We also don’t know the nature of the material has been marked classified, and in that regard the Clinton’s campaign claims about overclassification are worth noting. In the past, there have been plenty of examples of intelligence authorities marking material ‘classified” or higher when they was no legitimate case to do so. In some cases, for example, there have been reports of articles from newspapers being marked ‘classified’ notwithstanding the fact that the material is, obviously, already public. Finally, we don’t know what Clinton knew, or should have know, regarding the classified nature of the material on her server. As noted, the former Secretary of State has said that none of the emails that she sent or received were marked classified, but that doesn’t entirely answer the question since the relevant laws also impose an independent duty on government employees to recognize material that should be classified, such as human intelligence or signals intelligence, whether it is properly marked or not.
Circling above all of this, of course, is the ongoing FBI investigation about how classified information that may have ended up on Clinton’s server and whether there was any violation of the law. In recent weeks, there have been reports that the bureau is ready to recommend an indictment to the Justice Department, but of course, reports of that nature can be easily dismissed due to the fact that the FBI does not make recommendations regarding whether or not an indictment would be proper. That is a decision that is left to the Justice Department, specifically the U.S. .Attorney that may be assigned to handle the matter and, ultimately, a Grand Jury. The FBI’s role is limited to gathering the evidence and handing it over, perhaps with a conclousory report. From there, the question of whether or not to indict is up to the Justice Department. So far, there has been no indication that any Grand Jury related to this matter has been convened, nor has the FBI interviewed Clinton regarding the matter. Most importantly, it’s entirely unclear how far along the FBI investigation actually is or when it can expected to be concluded.
Depending on who you listen to, Clinton is either in potentially serious legal trouble based merely on reports such as these in the media, or this is all much ado about nothing. Given the fact that the investigation has not concluded, it strikes me that it is far too early to jump to either conclusion, and it may be some time before we know for sure how this will all pan out. In the meantime, trying to get a clear answer to some of the legal issues in this case has proven to be difficult in no small part because it is all going on in the middle of a Presidential election in which Clinton remains the likely Democratic nominee. In the end, though, it appears that Clinton’s ultimate culpability from a legal point of view will depend largely on whether she was aware at the time that material being shared on her server was highly classified and therefore didn’t belong there, and whether she was aware that someone, such as one of her deputies, was removing classified markings so that information could be shared on unsecure networks, Absent evidence that any of this is the case, and under the circumstances it would have to be evidence that the U.S. Attorneys involved believed they could prove beyond a reasonable doubt, an indictment seems highly unlikely and speculating about the same is really just an exercise in partisanship.
Of course, in the end, this entire story is as much about about the election as it is about the legal issues involved. Regardless of the status of the FBI investigation, Republicans will continue to emphasize this issue because of the political benefits of doing so. During the primary race, it serves the candidates in proving their conservative bona fides to the Republican base notwithstanding the fact that they don’t know any more about the case or the investigation than what the rest of us read in The Washington Post and The New York Times. Beyond the Republican base, though, polling has shown that a majority of Americans think Clinton knowingly lied about issues surrounding her use of a private email server and that her use of private server was ‘illegal or unethical.’ As long as that’s the case, Republicans will continue bringing the issue up all the way until Election Day in November if necessary. In the end, this is not likely to be a story that hurts Clinton in her quest for the Democratic nomination, but if the story continues to drag itself out it’s likely to cause the Clinton campaign headaches for months to come.
