Hillary Clinton has insisted throughout the ongoing email scandal on two points repeated as a virtual mantra: there was no classified material sent on her unsecured personal email system and she was in total compliance with the law. I have questioned both points and noted that she is really saying that no “marked” classified material was sent (a less than compelling argument) and she is speaking of federal criminal laws as opposed to the clear official policy not to use such personal servers. It appears clear that some of this material was indeed classified and, as I discussed this week on NPR, the policy against doing what she did was clear and strong at the time of her tenure at State. Now, United States District Court Judge Emmet Sullivan has weighed in with comments this week that Clinton clearly did violate State Department policy and that violation caused much of the difficulty in retrieving her communications while in office.
What is now clear is that Clinton used her personal server exclusively (something that is extremely rare) and that she conducted official business of State over the unsecured system (including the transmission of material now deemed 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. As Secretary, Clinton received the highest level of intelligence and there is always a concern that second generation discussions will be influenced or reveal such information. That is why State Department people are asked to conduct official business on the secure system. 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.
The policy referenced by the Court was evident in a communication that out under Clinton’s name to all State Department employees that warned them to “[a]void conducting official Department business from your personal email accounts.” There is also a 2005 department manual covering the transmitting of information that is “sensitive but unclassified.” The manual said that department-related email should go through servers authorized by the department.
In the latest hearing on the Freedom of Information Act lawsuit, Judge Sullivan noted “We wouldn’t be here today if this employee had followed government policy.” The Court noted that the failure to comply with clear policies had complicated the State Department’s ability to respond to requests for records. He further ordered the server (which was only recently turned over by Clinton after months of refusal) to be examined for any response emails. That server was reportedly wiped clean before it was turned over by Clinton staff members though it may be possible for some of the material to be retrieved.
The Justice Department and State Department have been opposing all efforts to secure the information. Justice Department lawyer Peter Wechsler argued that the open records law normally doesn’t allow for searches of government officials’ private accounts, but Judge Sullivan said that this was a different situation because “there was a violation of government policy” and “We’re not talking about a search of anyone’s random email.”
In the FOIA lawsuit, Judicial Watch is seeking records about the employment arrangements of longtime Clinton aide Huma Abedin, who served Clinton’s deputy chief of staff at the State Department but later moved to a part-time position while also doing private consulting work.
A tense moment arose when Wechsler said he did not know whether the FBI was actually in possession of Clinton’s server or thumb drives. “You’re a Justice Department attorney?….You can’t tell me? . . . I need to get an answer . . . We’re tiptoeing on the head of a pin because there’s only one government.”