In a major development on the Clinton email scandal, the New York Times is reporting that the inspectors general for the State Department and the intelligence community have asked the Justice Department to open an investigation into whether there was mishandling of classified information by Hillary Clinton using a personal email account while secretary of state. While the newspaper referred to the action as a criminal referral, the Administration quickly moved to counter the story and insist that it is not technically a criminal referral. We have previously discussed this story and the insistence of Clinton that she did nothing wrong in maintaining a private email system and that none of the emails were classified. I disagreed with both premises as well as expressed great skepticism over Clinton’s insistence that she was really not trying to control her emails and insulate them from review but rather simply did not want to carry around two phones. According to the New York Times, investigators believe that Clinton’s email archive contained “hundreds of potentially classified emails.” Nevertheless, the Justice Department appears to be moving to counter any expectation of a criminal investigation against the former Secretary of State under Obama. We have previously discussed the special treatment historically given powerful figures in violating national security rules or practices.
That is if anything a conservative estimate. As I discussed earlier, virtually anything coming out of the office of the Secretary of State would be considered classified as a matter of course. I have had a TS/SCI clearance since Reagan due to my national security work and have lived under the restrictions imposed on email and other systems. The defense is that this material was not technically classified at the time that it was sent. Thus it was not “classified” information. The problem is that it was not reviewed and classified because it was kept out of the State Department system. Moreover, most high-level communications are treated as classified and only individually marked as classified when there is a request for disclosure. You do not generate material as the Secretary of State and assume that it is unclassified. You are supposed to assume and treat it as presumptively classified. Otherwise, there would be massive exposure of classified material and willful blindness as to the implications of the actions of persons disregarding precautions. For example, there is not a person standing next to the President with a classification stamp in the Oval Office. However, those communications are deemed as presumptively classified and are not disclosed absent review. Under the same logic, the President could use a personal email system because his text messages by definition are not marked as classified. This is the whole reason that Clinton and others were told to use the protected email system run by the State Department. We have spent hundreds of millions of dollars to secure such systems.
The Justice Department has confirmed that it has a request for an inquiry and I fail to see any basis upon which it would not open an investigation. This is a major escalation and will make it more difficult for Clinton to maintain the past spin on the scandal as a purely political hatchet job.
It will also make Clinton’s order to destroy thousands of emails even more problematic. Those emails might now be considered to be potential evidence of a crime like destroying classified papers that you improperly brought home and than insisting that you judged them to be unclassified. The investigation could also expose her aides to criminal questioning under the threat of 18 U.S.C. 1001. That could lead to disclosure of what they were told and what they saw in the emails. It also means that the continued refusal of Clinton to turn over the server will be increasingly difficult to maintain.
As impressive as this exclusive statement is for the Times, there is a controversy over changes made at the request of the Clinton campaign that were not disclosed. Politico is reporting that the Clinton campaign insisted on a change of a line that read that the inspector generals asked for an investigation “into whether Hillary Rodham Clinton mishandled sensitive government information on a private email account she used as secretary of state.” That was changed to “into whether sensitive government information was mishandled in connection with the personal email account Hillary Rodham Clinton used as secretary of state.” The headline was also changed from “Criminal Inquiry Sought in Hillary Clinton’s Use of Email” to “Criminal Inquiry Is Sought in Clinton Email Account.” Both changes are obviously designed to give Clinton a little deniability as to her own role and accountability. However, she has never denied being fully aware that she was electing to circumvent the State Department account for her communications. Indeed, she has indicated that it was a conscious decision based on her earlier views of convenience and multiple phones. Her repeatedly claim that she was never subject to a subpoena has been described as false by media like CNN after it was disclosed that she had indeed been given a subpoena for the emails.
If there is an investigation, this means that Clinton will have to continue much of her campaign facing a possible criminal indictment and subject to questioning from investigators. It will also mean that media will be hard pressed to ignore the story or accept the past soundbites on convenience or political motivations. It also means that, while Clinton has described the release of the emails as “kind of fun,” it is about to get a lot less fun.
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“In the end what matters is an intelligent progressive President. Two in a row might just do some good. A Republican President would set this country back a generation.”
Some good? Considering this country is a stage IV progressive cancer patient, I would agree if the goal is to end the suffering caused by progressivism. Call in hospice care and finish this thing. OR, believing the patient is worth saving, then avoid electing a progressive Republican or Democrat and instead set this country back as many generations as necessary to allow time to implement a cure.
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Oh yeah, Biden would make a good molester-in-chief.
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” Everything is classified until it is determined “unclassified”.”
Um, no. You are a bureaucrat’s delight.
Nothing is classified unless there is a specific grounds to classify it based on a written classification guide. Very few government official possess “original classification authority”. In the end, the top cabinet-level officials have the authority to declassify anything they want to.
IIRC, it was revealed on the Kelly File a few months ago that HRC never signed such a form. The Clintons are above such mundane affairs. I wonder if this is perhaps a “cover up” investigation done so she can be “officially” cleared before the election.
“As a Vietnam era veteran who was at a base that was engaged in secret work, I can say that while we had a lot of secret material, everything was NOT classified and we had many briefings on how to handle secret material.”
I took the same oath as the POTUS and security briefings are part of it. Might be why we lost the Vietnam war. Look at what Geraldo did, he “stupidly” revealed locations of troops in secret operations on national television and why the press was put out of the war operations going on in the middle east.
I use Microsoft Outlook Professional. I created folders to better organize the emails:
China folder
Russia folder
North Korea folder
Europe folder
Asia folder
Central America folder
South America folder
Mideast folder
Nukes folder
Terrorism folder
Big Money Donor/Sweet Deal Folder
If there’s something to hide, I use special military grade delete program. Overwrites multiple times, never get it back. Incinerated permanently. See, hands clean.
Clinton knew the rules. Here is a copy of what all government employees must sign before employment or assignment begins;
CLASSIFIED INFORMATION NONDISCLOSURE AGREEMENT
AN AGREEMENT BETWEEN AND THE UNITED STATES
(Name of Individual – Printed or typed)
1. Intending to be legally bound, I hereby accept the obligations contained in this Agreement in consideration of my being granted access to classified information. As used in this Agreement, classified information is marked or unmarked classified information, including oral communications, that is classified under the standards of Executive Order 13526, or under any other Executive order or statute that prohibits the unauthorized disclosure of information in the interest of national security; and unclassified information that
meets the standards for classification and is in the process of a classification determination as provided in sections 1.1, 1.2, 1.3 and 1.4(e) of Executive Order 13526, or under any other Executive order or statute that requires protection for such information in the interest of national security. I understand and accept that by being granted access to classified information, special confidence and trust shall be placed in me by the United States Government.
2. I hereby acknowledge that I have received a security indoctrination concerning the nature and protection of classified information, including the procedures to be followed in ascertaining whether other persons to whom I contemplate disclosing this information have been approved for access to it, and that I understand these procedures.
3. I have been advised that the unauthorized disclosure, unauthorized retention, or negligent handling of classified information by me could cause damage or irreparable injury to the United States or could be used to advantage by a foreign nation. I hereby agree that I will never divulge classified information to anyone unless: (a) I have officially verified that the recipient has been properly authorized by the United States Government to receive it; or (b) I have been given prior written notice of authorization from the United States
Government Department or Agency (hereinafter Department or Agency) responsible for the classification of information or last granting me a security clearance that such disclosure is permitted. I understand that if I am uncertain about the classification status of information, I am required to confirm from an authorized official that the information is unclassified before I may disclose it, except to a person as provided in (a) or (b), above. I further understand that I am obligated to comply with laws and regulations that prohibit the
unauthorized disclosure of classified information.
4. I have been advised that any breach of this Agreement may result in the termination of any security clearances I hold; removal from any position of special confidence and trust requiring such clearances; or termination of my employment or other relationships with the Departments or Agencies that granted my security clearance or clearances. In addition, I have been advised that any unauthorized disclosure of classified information by me may constitute a violation, or violations, of United States criminal laws, including the provisions of sections 641, 793, 794, 798, *952 and 1924, title 18, United States Code; *the provisions of section 783(b}, title 50, United States Code; and the provisions of the Intelligence Identities Protection Act of 1982. I recognize that nothing in this Agreement constitutes a waiver by the United States of the right to prosecute me for any statutory violation.
5. I hereby assign to the United States Government all royalties, remunerations, and emoluments that have resulted, will result or may result from any disclosure, publication, or revelation of classified information not consistent with the terms of this Agreement.
6. I understand that the United States Government may seek any remedy available to it to enforce this Agreement including, but not limited to, application for a court order prohibiting disclosure of information in breach of this Agreement.
7. I understand that all classified information to which I have access or may obtain access by signing this Agreement is now and will remain the property of, or under the control of the United States Government unless and until otherwise determined by an authorized official or final ruling of a court of law. I agree that I shall return all classified materials which have, or may come into my possession or for which I am responsible because of such access: (a) upon demand by an authorized representative of the United States
Government; (b) upon the conclusion of my employment or other relationship with the Department or Agency that last granted me a security clearance or that provided me access to classified information; or (c) upon the conclusion of my employment or other relationship that requires access to classified information. If I do not return such materials upon request, I understand that this may be a violation of sections 793 and/or 1924, title 18, United States Code, a United States criminal law.
8. Unless and until I am released in writing by an authorized representative of the United States Government, I understand that all
conditions and obligations imposed upon me by this Agreement apply during the time I am granted access to classified information, and at all times thereafter.
9. Each provision of this Agreement is severable. If a court should find any provision of this Agreement to be unenforceable, all other provisions of this Agreement shall remain in full force and effect.
NSN 7540-01-280-5499
Previous edition not usable.
STANDARD FORM 312 (Rev. 7-2013)
Prescribed by ODNI 32 CFR PART 2001.80 E.O. 13526
10. These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions,
requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling.
11. These restrictions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by Executive Order No. 13526 (75 Fed. Reg. 707), or any successor thereto section 7211 of title 5, United States Code (governing disclosures to Congress); section 1034 of title 10, United States Code, as amended by the Military Whistleblower Protection Act (governing disclosure to Congress by members of the military); section 2302(b) (8) of title 5, United States Code, as amended by the Whistleblower Protection Act of 1989 (governing disclosures of illegality, waste, fraud , abuse or public health or safety threats); the Intelligence Identities Protection Act of 1982 (50 U.S.C. 421 et seq.) (governing disclosures that could expose confidential Government agents); sections 7(c) and 8H of the Inspector General Act of 1978 (5 U.S.C. App.) (relating to disclosures to an inspector general, the inspectors general of the Intelligence Community. and Congress); section 103H(g)(3) of the National Security Act of 1947 (50 U.S.C. 403-3h(g)(3) (relating to disclosures to the inspector general of the Intelligence Community); sections 17(d)(5) and 17(e)(3) of the Central Intelligence Agency Act of 1949 (50 U.S.C. 403g(d)(5) and 403q(e)(3)) (relating to disclosures to the Inspector General of the Central Intelligence Agency and Congress); and the statutes which protect against disclosure that may compromise the national security, including sections 641, 793, 794, 798, *952 and 1924 of title 18, United States Code, and *section 4 (b) of the Subversive Activities Control Act of 1950 (50 U.S.C. section 783(b)). The definitions, requirements, obligations, rights, sanctions, and liabilities created by said Executive Order and listed statutes are incorporated into this agreement and are controlling.
12. I have read this Agreement carefully and my questions, if any, have been answered. I acknowledge that the briefing officer has made available to me the Executive Order and statutes referenced in this agreement and its implementing regulation (32 CFR Part 2001 , section 2001 .80(d)(2) ) so that I may read them at this time, if I so choose.
SIGNATURE DATE SOCIAL SECURITY NUMBER (See Notice below)
ORGANIZATION (IF CONTRACTOR, LICENSEE, GRANTEE OR AGENT, PROVIDE: NAME, ADDRESS, AND, IF APPLICABLE, FEDERAL SUPPLY CODE
NUMBER) (Type or print)
WITNESS
THE EXECUTION OF THIS AGREEMENT WAS WITNESSED
BY THE UNDERSIGNED.
SIGNATURE DATE
NAME AND ADDRESS (Type or print)
ACCEPTANCE
THE UNDERSIGNED ACCEPTED THIS AGREEMENT
ON BEHALF OF THE UNITED STATES GOVERNMENT.
SIGNATURE DATE
NAME AND ADDRESS (Type or print)
SECURITY DEBRIEFING ACKNOWLEDGEMENT
I reaffirm that the provisions of the espionage laws, other federal criminal laws and executive orders applicable to the safeguarding of classified information have been made available to me; that I have returned all classified information in my custody; that I will not communicate or transmit classified information to any unauthorized person or organization; that I will promptly report to the Federal Bureau of Investigation any attempt by an unauthorized person to solicit classified information, and that I (have) (have not) (strike out inappropriate word or words) received a security debriefing.
SIGNATURE OF EMPLOYEE DATE
NAME OF WITNESS (Type or print) SIGNATURE OF WITNESS
NOTICE: The Privacy Act, 5 U.S.C. 552a, requires that federal agencies inform individuals, at the time information is solicited from them, whether the disclosure is mandatory or voluntary, by what authority such information is solicited, and what uses will be made of the information. You are hereby advised that authority for soliciting your Social Security Number (SSN) is Public Law 104-134 (April 26, 1996). Your SSN will be used to identify you precisely when it is necessary to certify that you have access to the information indicated above or to determine that your access to the information indicated has been terminated. Furnishing your Social Security Number, as well as other data, is voluntary, but failure to do so may delay or prevent you
being granted access to classified information.
STANDARD FORM 312 BACK (Rev. 7-2013)
Clinton says thatshe never recieved a sunpoena for emails. The Republican Congress hauls out a document dated several months earlier and says, “Here it is, this is the subpoena she says she never received.” The media says, “Nothing to see here, move along.”
Do you really think that the same thing will not happen with your silly “criminal investigations” of those emails? The media has important things to cover, like the fact that Trump was wearing white golf shoes when he toured the border.
Time for Hillary to drop out of the race. Joe Biden could step in, he is one of the most decent human beings in Washington. If Trump is smart enough to be President so is Biden. I liked Biden since he ran against Obama in the Primaries in 2008. He’s a good man with lots of experience. If he puts his foot in his mouth once in a while, it’s less mean spirited than Trump at any rate. Elizabeth Warren would have no problems winning the Presidency. Can you imagine a debate between Warren and Trump? It would be amazing.
And, as far as Isaac’s historical analysis. How did Ford pardoning Nixon work out for him and his party?? LOL!
So, Obama can pardon her. Ford pardoned Nixon. This is nothing in the great scheme of things. Take a trip down memory lane through the newspapers. It will be hay for those who still sport a tail and have yet to develop opposing thumbs. In the end what matters is an intelligent progressive President. Two in a row might just do some good. A Republican President would set this country back a generation. Ah, the good old days.
Right on cue!
“Not true. Nothing is classified unless a classification authority makes a determination and can cite the specific legal justification for doing so. Then the document must be officially marked as classified and logged.”
Not true, Everything is classified until it is determined “unclassified”. She broke the law and anyone else would have been charged. Even low level employees emails are classified. Then if a FOIA request is made, then the determination of un-classifying will be done. I am a former gov’t employee.
Lisa, Then if what you say is true, then I hope you will also call for a similar investigation of Sec. Powell, and Rice who did the same. Now if you can show that what she did was exceptional or illegal or different from her predecessors, THEN you have a point.
As a Vietnam era veteran who was at a base that was engaged in secret work, I can say that while we had a lot of secret material, everything was NOT classified and we had many briefings on how to handle secret material.
I expect the Clinton operatives will be here twisting and turning. But, at what point do Dems realize she is a LOSER?? Normal people, who don’t follow politics, see her for what she is, a lying, phony, Lady Macbeth.
I hope that Prof Turley will ALSO demand that Sec. Powell, and Rice face similar charges, since they did the same. Of course, I think that we all know the answer to that one. Sort of like an armed coup in the Ukraine is not a coup if it is done by the guys he and the State Dept like. Too hell with legal niceties.
“virtually anything coming out of the office of the Secretary of State would be considered classified as a matter of course. ”
Not true. Nothing is classified unless a classification authority makes a determination and can cite the specific legal justification for doing so. Then the document must be officially marked as classified and logged.
If the Sec. of State chooses not to classify something, then it is not classified. This is an absolute.
This is a different question as to whether the e-mail includes documents that have been correctly classified, but I observe that the post doesn’t say that.
And Jeh Johnson is very happy to do the same.