State Department: 22 Emails Will Not Be Released As “Top Secret”

Hillary_Clinton_Testimony_to_House_Select_Committee_on_BenghaziThe email scandal has deepened for former Secretary of State Hillary Clinton today with the announcement that the State Department will not release 22 emails because they contain “top secret” information, the highest level of government classification. The latest batch of emails contains seven email chain with top secret information.  While Clinton once insisted that she never sent or received classified information, it is now official that many of the emails did indeed contain classified information. Clinton later argued that she did not send or receive information “marked” as classified. While many of us in the field noted that such markings are not the only issue for those who handle classified information, the classification level given so many emails will likely increase the criticism of Clinton’s decision to use exclusively her own, unsecure email system over the protected system in place at State. She has insisted that this was done for “convenience” and recently rejected the suggestion that the use of the system showed “an error in judgment.” In the very least, the decision to use a private email system was a horrendously bad decision for a Secretary of State when a secure system was available. It is hardly a compelling argument to advance that you took this reckless step for “convenience.”

Additional emails between President Obama and Clinton were withheld to protect presidential communications, though the use of a private server made such communications vulnerable to foreign interception.  Notably, the State Department said today that it has not been established that none of the email information was marked classified.

I have always viewed this scandal as quite serious. Clinton has insisted that “I never sent classified material on my email, and I never received any that was marked classified.” The key of this spin is again the word “marked.” 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. Indeed that understanding was formally agreed to by Clinton when she signed the “Classified Information Nondisclosure Agreement,” or SF-312, which states that “classified information is marked or unmarked classified information, including oral communications.” 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. Classified oral communications are not “marked” nor would classified information removed from secure systems and sent via a personal server. Likewise, classified oral communications that are followed up with emails would not be “marked.” 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. Even the Washington Post has now concluded that Clinton’s earlier statements that there was no classified information on her server are “untrue.”

State Department spokesman John Kirby said the documents, totaling 37 pages, were not marked classified at the time they were sent. However, he has said that the information has been flagged as top secret by the Intelligence Community. We discussed earlier that reports indicate that information include human intelligence listed as Special Access Program information.

UnknownTwo statements today stood out for me. One was from Brian Fallon, a spokesman for Clinton’s campaign, who called this a case of “over-classification run amok.” The only way to reach that conclusion is if Fallon or the campaign was aware of the content of the emails in question. Since they are not cleared to have access to classified information, such statements from the Clinton political team only deepen the problems for the Clinton legal team.  I understand that there is a story alleging that some of the top secret material involved an article reporting on the drone program.  I have been in cases with such over-classification concerns.  However, a Secretary of State is in a position to know whether such journalistic articles are accurate and can authenticate such disclosures in the course of discussing them.  Moreover, I fail to see how Fallon or the campaign staff could be so clear about the content and classification of such emails without discussing them or reviewing them — something that would concern most security officers.

220px-Josh_Earnest_2011The second curious statement came from White House Press Secretary Josh Earnest who told reporters that “based on what we know from the Department of Justice, it does not seem to be headed in that direction.” That would indicate that the Justice Department is giving the White House information on the unfolding investigation. It is problematic that political and media folks at the White House would have such information on a still unfolding investigation where key players like Clinton have not even been interviewed.  It is even more concerning for the White House to give effective assurances on the direction of a supposedly confidential criminal investigation.  Indeed, the White House should not be commenting on the progress of criminal investigations at all, let alone reference a basis of knowledge of the direction of such investigations.

What is most baffling is Clinton’s reversal in the last debate where she balked at the suggestion that she used bad judgment in the use of her own server despite the fact that she knew she was one of the top targets for foreign intelligence services. She simply repeated that she did it for convenience and it has not proven very convenient. That is hardly a compelling defense when others have been indicted for such mishandling of classified information. It is not a question of convenience but potential criminality that is the obvious concern.  Classification rules were designed specifically to prevent people from conveniently skipping security measures. They are inherently inconvenient but necessary.

Even if Clinton is able to avoid a criminal charge, her aides are now in a highly precarious position and should have independent counsel at this point. That does not mean that anyone will be indicted but, as a criminal defense attorney in this field, I would view this situation was potentially dangerous for those involving in transmitting and storing this information.  With the FBI now reportedly retrieving the tens of thousands of emails deleted by the Clinton staff, that danger will grow considerably if classified or official records were deleted.  It is also dangerous for campaign staff who are dealing with individuals subject to the investigation.  The most common charges in such scandals is obstruction or false statements or witness tampering.  This is particularly the case when people like Jake Sullivan are now working in the campaign.  It is time (if it has not been done before) for Clinton lawyers to create conflict walls and guarantee individual counsel for potential targets.

Source: CNN

48 thoughts on “State Department: 22 Emails Will Not Be Released As “Top Secret””

  1. Darren Smith; “The reason the time in the FBI surveillance video reads 00:25 is because they are using GMT which is eight hours ahead of Pacific Standard Time. The incident occurred at 4:25 PM local time which is 00:25 GMT.”

    Thanks for pointing that out Although there were other points brought up, that looks like an obvious over sight on his part. Here’s some more food for thought if you’re interested.

  2. $he wont be prosecuted. Its a catch 22. Murpheys law. The public wont support a conviction without knowing the “$coop”…..bc they dont trust the gov. She has the right to evidence against her….if that is “classified”…$he is rail roaded. Without due process….which to many is more fundamental than “$ecrets” that eventually get declassified. If any conviction it should be something like the stupid private server. On risk alone contents be damned. Bc if its on “secret” contents….no one gets due process. Patreus wont be demoted because to do so reveals secrets. Its a fix. But it is what it is. Would we rather convict her or keep a secret? Even if the cat is half out the bag? Then again manning is making big rocks into little rocks for life….for giving the same emails to wiki leaks.

    1. J – Hillary has done more than enough to get convicted. However, the ones who really need to worry are her aides. They are in the middle of the frying pan.

  3. Did someone say “Soviet?”

    “It has been 50 years since Alger Hiss was convicted of perjury for denying that he had been a Soviet spy,…”

    The CIA might know something about being a spy. Roosevelt was the President during the Soviet employment of Hiss. Roosevelt was a brilliant man, no doubt. He knew all about Pearl Harbor, right? Perhaps he knew all about the infestation of his State Department by communist spies. Maybe not.

    How does a country fall under the complete dictatorship of communism without having any communists around?

    Geez. Will mysteries never cease?

  4. Carlos wasn’t a Soviet. You Soviet types are confused by all the “state secret” stuff.

  5. Much ado about nothing.

    The idea that everything is a state secret is Soviet. Lots of secret Soviets seem to comment here.

  6. Paul S

    Mickey Mousse’s career as a desert chef got off to a rocky start, until Mickey met his distant cousin, Bullwinkle Mousse. Then he was hired to prepare deserts at the Furnace Creek Resort in Death Valley. Mickey’s favorite desert to make was baked Alaska, served with dry sherry.

    1. Don de Drain – Mickey’s desert career is now clear as mud to me. 😉

  7. What is strange is that any rational person could think that what Faux news reports is true.

  8. “Fox News: Contacts in the FBI and DOJ are ‘Super Pissed Off’ at the White House”

    According to Fox News’ chief intelligence correspondent Catherine Herridge, her contacts in the FBI and DOJ are “super pissed off” at what White House Press Secretary Josh Earnest said about Hillary Clinton’s email problems Friday. “That’s not something I’m worried about,” he told reporters at the daily briefing.

    Earnest threw cold water on predictions that Hillary Clinton will face a Justice Department indictment for mishandling classified information on her private and unsecure email server while secretary of State..

    “That will be a decision that will be made by the Department of Justice,” he said. “Some officials have said she is not the target of the investigation and it does not seem to be the direction in which it is trending.”

    Pressed again on whether he believed Clinton could get indicted, Earnest said firmly: “It doesn’t seem to be headed in that direction.”

    Catherine Herridge told Greta Van Susteren on Fox News Friday evening that her sources in the FBI and Justice Department have “their backs up” over Earnest’s comments.

    “That statement by Josh Earnest has got the back up of our contacts at the FBI and Justice Department for two reasons… They are super pissed off – to use a technical term. Number one, Josh Earnest has absolutely no clearance or visibility in the FBI investigation. Number two, they say it really seems part of a troubling pattern from the White House because the president earlier said he did not see any national security implications to the Clinton emails and then we found out he had never been briefed.”

    Herridge said that by “weighing in and leaving the public with an impression that is not backed up by the evidence in the case,” the White House was making the situation even more political than it needed to be.

    When she mentioned the “troubling pattern from the White House,” Herridge was referring to the October 60 Minutes interview in which the president called Clinton’s use of a private server “a mistake,” but said it had not endangered national security. He said the issue was being “ginned up” into an attack by Republicans for political reasons.

    FBI Director James Comey told the Senate Judiciary Committee in December that the president does not receive briefings on the investigation, so he would have no way of knowing how serious it is.

    Comey said, “anybody’s view about an investigation they’re not involved in is irrelevant. We care about finding out what is true and doing that in a competent, honest and independent way. I promise you that’s the way we conduct ourselves.”

    By a strange coincidence, Friday morning on MSNBC’s Morning Joe, the panel discussed the latest scuttlebutt on the FBI investigation, and what the White House knows.

    Bloomberg Politics Managing Editor Mark Halperin told Joe Scarborough and Mika Brzezinski that “there are some people in the White House who are starting to talk about this.”

    Halperin said though it is unclear to him whether White House officials know what is happening, “the body language among some Obama Administration official is, ‘This is more serious, and something’s gonna happen.’”

    So, according to Washington insider Mark Halperin, the White House knows full well how serious the situation is for Hillary, yet Josh Earnest was sent out there to offer this Gruberesque nonsense: “Some officials have said she is not the target of the investigation and it does not seem to be the direction in which it is trending.”

    Strange days.

  9. It is easy to spot the intel nuts or those who are only interested in partisan political attacks since they say things like ALL of the e-mails from the Sec. of State are presumptive as being CLASSIFIED. That means that Clinton wishing her kid happy birthday is CLASSIFIED as are the grocery list and other such traffic. Any person who can fall for that BS is not thinking or is a political hack and is a danger to our national security. One also knows that such folks are not rational or credible when they compare what Petraeus did since they leave out the FACT that ALL of what he gave access to WERE MARKED Secret of Top Secret. Even assuming that the person had a high level security clearance, as all who handle such material KNOW, the need to know rule applies. When I was in the USAF we all got briefed on how to handle such material and the rules. SO one wonders how it was that Dick Cheney got the intel that Valerie Plame was not only married to Wilson, but that she worked at the CIA. There sure was not concern about that either. So if Cheney, Bush, and all the others can skate, then this is a way overblown “scandal”. If Cheney and Bush head off to prison, then I will consider supporting doing the same for Clinton.

  10. We need “Our man Flint”. Mention pleasure and Flint is right on the job. What ever happens, Flint can handle it.

    1. Maxwell – Our Man Flint had the coolest phone ring tone. Wish I could get it for my cell.

  11. It is interesting to see how smug so many of these so called “intelligence” people are. They usually start out their rant with some statement about having been certified years back as a GS 8 or some such apCray and how they know it all. If they knew it all they would not use emails or play on the internet on some computer on which they also do their credit card account. Ask Turley for example if he is dumb enough to do that.

  12. Olly – Seriously, what worldview do you have to have that makes Clinton appear innocent, or at the very least trustworthy?

    Hillary maintains emails were not marked classified and is a case of “over-classification run amok.” Question 1. Will Hillary appoint girl friend Huma to an important post?
    Question 2. Could Hillary handle a WWIII scenario with that smug attitude?

    1. Maxwell – regardless of what happens to Hillary, Huma is toast. Orange is the new Black for her.

  13. She used a personal email account and server because it was more convenient than having to deal with the State Department system. That was her exit off the Presidential freeway toward prison. The FBI is in the process of clearing the roads and making sure all the lights are green. If she doesn’t make it into prison for this BLATANT violation of the law and her recklessness towards national security, then a precedent will be set that will prevent any prosecution of lesser offenses in the future. If she remains electable then we might as well indict her supporters as co-conspirators. Seriously, what worldview do you have to have that makes Clinton appear innocent, or at the very least trustworthy?

    1. Olly – it seems the FBI is ‘super pi**ed’ at the President for his interference into the investigation. They are making statements and have not been briefed.

  14. Her hair will go completely gray in prison. Not too sure that they will let her bring her boxes of Miss Clairol, Nice N’ Easy, Cuckoo Bird Blond, shade #3, to the big house. No worries. Huma likes ’em big like a barrel and gray.

  15. Look. Truth be told. The food in that Saudi Embassy tastes like apCray and when she emailed her employees back in DC of those facts she used her private email server. No Secretary of State can go eat dinner at some Embassy of another country and then ithcBay about it. Even if the Secretary is an itchBay from the word go. So it is top secret and should not have been sent on her private email. And every time there is some article about Hillary they always post one of those ugly photos of her either playing on her hand held cell phone or peering out from some podium with that bored look on her face. To defame can be shamed and the tactic is lame. So o u t spells “out” and out you go Hillary.

  16. In the video, the presenter claims the time stamp on the video is proof of this being forged or recreated.

    The reason the time in the FBI surveillance video reads 00:25 is because they are using GMT which is eight hours ahead of Pacific Standard Time. The incident occurred at 4:25 PM local time which is 00:25 GMT.

    The FBI’s operations span multiple time zones. Using GMT/UTC is a reasonable way to keep timestamps consistent.

    So, the presenter from the beginning doesn’t have the correct information.

  17. Suppose we take Secretary Clinton’s word and assume no classified email existed on her server. That would mean that no one in the White House, State Department, Defense Department or any other area of government that deals with sensitive information trusted her sufficiently to provide her with classified information. Not exactly a ringing endorsement.

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