Clinton Reportedly To Turn Over Server To the Justice Department After Months of Demands From Congress

After months of refusing demands to turn over her personal email server, Hillary Clinton has agreed to do so. The server will be turned over to the Justice Department as part of the investigation into her use of a private email account as Secretary of State. It was also disclosed that at least two emails on the unsecured server were classified “Top Secret, Sensitive Compartmented Information” — one of the government’s highest classifications. Some of the information is reportedly linked to NSA/satellite intelligence and the Inspector General says that there was material that was classified at the time it was sent over the unsecured server.

We have been following the story as it has transformed from a purely political to a potentially criminal matter. While Clinton has insisted that there was nothing classified on her email system and that any dispute is just a bureaucratic squabble “between agencies” the classification of many of these emails is no surprise to many of us who regularly deal with classified material. The classification of these emails will likely reignite demands for Clinton to turn over the server and raise the question of those thousands of emails that Clinton’s aides unilaterally deleted before turning over emails to the government. The classification level however of most of these messages are at the lowest level of such designations.

Clinton continues to stress that she did not send or receive any material marked classified. I have previously discussed why that explanation is less than compelling, particularly for anyone who has handled sensitive or classified material. 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.

Clinton portrayed the dispute as entirely removed from her controversial decision to use a personal server — a move that gave her total control of the server and ultimately allowed her staff to delete thousands of emails before turning over emails to the State Department: “They can fight over it or argue over it. That’s up to them. I can tell you what the facts are.”

Dozens of emails have now been declared classified. Clinton’s refusal to turn over the server has become more and more problematic, even for some of her supporters on the Hill. The FBI recently contacted her counsel, David Kendall, regarding three thumb drives believed to contain classified material. What is particularly interesting is the statement from Senator Grassley this week that the inspector general of the nation’s intelligence community had reported that at least four emails were classified when they were sent and two were TS/SCI classified. That would directly contradict Clinton’s position and would fuel questions about the tens of thousands of emails that Clinton reportedly ordered deleted rather than turn over to the State Department.

The inspector general for the intelligence community reportedly told Congress that potentially hundreds of classified emails are among the cache that Clinton provided to the State Department.

In the meantime, Judge Emmet G. Sullivan has issued an order to the State Department to ask Clinton, Huma Abedin and Cheryl Mills not to destroy any emails. Neither Abedin nor Mills provided a certification under penalty of perjury as Sullivan had requested in an earlier order. Some sites have reported that attorneys for Mills had indicated that she was going to delete copies of emails. A letter from her counsel quoted in the filing stated “Ms. Mills does not believe that she has paper copies of potential records in her possession. Following our production on August 10, 2015 [of the defense counsel’s version of the electronic records], we have instructed her to delete any and all electronic records in her possession.” Presumably, the State Department will convey the request of the Court to Mills’ counsel and no deletions or further deletions will occur.

With these developments, it is not a surprise to see the two leading contenders for the Democratic nomination objecting the delay in any debates with Clinton and the limitation of the number of those debates. Supporters for Martin O’Malley and fellow candidate Bernie Sanders have objected to what they see as a process shaped by Clinton supporters in the highest ranks of the party. The thought of Clinton being pulled into a debate in the midst of this scandal is clearly not something that the campaign would want. There is also a clear desire to limit the number and exposure of the debates.

It is interesting to see the different approaches of the parties. The GOP has more debates expected and a far larger and more diverse pool of candidates. Many democrats and independents seem to be chaffing at the limited choices in the Democratic race and the view of Clinton (and Bush on the GOP side) as favorites in another Clinton-Bush contest. With all of these political and legal elements, this campaign is proving a bit less predictable than forecasted by political commentators.