Fox's Evidence Of Clinton Email Cover-Up Is Really Just Routine Privileged Information Exemption

Fox News cited anonymous sources to scandalize the State Department's decision to recategorize some of Hillary Clinton's emails, using technical language to avoid admitting that the emails were simply designated as privileged communications -- a common type of redaction to protect agency deliberations. Instead, Fox hyped the change as evidence of a concerted cover-up to “hide classified info.”

Fox Paints State Dept.'s “Category” Change To Some Clinton Emails As Attempt To Cover-Up Mishandling Of Classified Information

Intelligence Correspondent Catherine Herridge: Clinton Email Markings Changed To B5 Designation “To Hide Classified Info.”  Writing for FoxNews.com, network intelligence correspondent Catherine Herridge cited anonymous sources to speculate that the State Department changed the markings of some Clinton emails “to a category that shields the content from Congress and the public” in “an effort to hide the true extent of classified information on the former secretary of state's server” :

At least four classified Hillary Clinton emails had their markings changed to a category that shields the content from Congress and the public, Fox News has learned, in what State Department whistleblowers believed to be an effort to hide the true extent of classified information on the former secretary of state's server.

The changes, which came to light after the first tranche of 296 Benghazi emails was released in May, was confirmed by two sources -- one congressional, the other intelligence. The four emails originally were marked classified after a review by career officials at the State Department. But after a second review by the department's legal office, the designation was switched to “B5” -- also known as “deliberative process,” which refers to internal deliberations by the Executive Branch. Such discussions are exempt from public release.  

The B5 coding has the effect, according to a congressional source, of dropping the email content “down a deep black hole.” [FoxNews.com, 9/1/15]

Fox Contributor: Email Markings “Changed To A Category That Actually Shields Them From Being Released” Because "They Don't Want It Out There." On the September 2 edition of Fox News' Fox & Friends, co-hosts Elisabeth Hasselbeck and Pete Hegseth claimed that  “four of those classified emails had their markings changed to a category that actually shields them from being released to Congress and the public,” because  “they don't want it out there” :

HASSELBECK: Fox News has also learned as per Catherine Herridge's incredible reporting that at least four of those classified emails had their markings changed to a category that actually shields them from being released to Congress and the public. They actually changed them. They went from a B5, and you probably know more about this than I do Pete, they went from a B5 category, they were actually switched to B5, they were originally marked classified. And then when they're B5, according to a congressional source, it goes down thisdeep, dark black hole so no one could ever see it. Now, why would they switch that?

HEGSETH: It's considered an internal deliberation of the Executive Branch, and as a result not releasable. Why would they change it? They don't want it out there. I mean, that's what it comes down to. She said, as you said Brian in the lede, she said she hadn't sent it, she sent it. She said it wasn't classified, not only was it classified, top secret. I mean, America knows what the words top secret mean, this is stuff that shouldn't be seen by anybody, yet here it is on her private server heading on out.

HASSELBECK: Yeah, switched in classification. [Fox News, Fox & Friends9/2/15]

Emails Were Designated A Common FOIA Exemption For “Documents That Are Normally Privileged In The Civil Discovery Context”  

“Inter-Agency Or Intra-Agency Memorandums Or Letters”  Are Considered Privileged And Exempt From FOIA. The Department of Justice's 2014 Guide to the Freedom of Information Act explains that Exemption 5, which Herridge vaguely explained in her report, actually covers “privileged” “inter-agency or intra-agency memorandums or letters,”  an exemption the DOJ describes as  “quite broad” :

Exemption 5 of the Freedom of Information Act protects “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” Courts have construed this somewhat opaque language to “exempt those documents, and only those documents that are normally privileged in the civil discovery context.”

[...]

Although originally it was “not clear that Exemption 5 was intended to incorporate every privilege known to civil discovery,” the Supreme Court subsequently made it clear that the coverage of Exemption 5 is quite broad, encompassing both statutory privileges and those commonly recognized by case law, and that it is not limited to those privileges explicitly mentioned in its legislative history.

[...]

The most commonly invoked privilege incorporated within Exemption 5 is the deliberative process privilege, the general purpose of which is to “prevent injury to the quality of agency decisions.” Specifically, three policy purposes consistently have been held to constitute the bases for this privilege: (1) to encourage open, frank discussions on matters of policy between subordinates and superiors; (2) to protect against premature disclosure of proposed policies before they are actually adopted; and (3) to protect against public confusion that might result from disclosure of reasons and rationales that were not in fact ultimately the grounds for an agency's action.

Logically flowing from the foregoing policy considerations is the privilege's protection of the “decision making processes of government agencies.” In concept, the privilege protects not merely documents, but also the integrity of the deliberative process itself where

the exposure of that process would result in harm. [Department of Justice, 7/23/14]

State Dept. Previously Explained That The  “Deliberative Process”  Designation Is “Consistent With The Attorney General's 2009 FOIA Guidance”

In July, State Dept. Recommended That Certain Emails Detailing Agency Deliberations Be Changed From Classified To Privileged. The State Department's July 14 response to the Intelligence Community Inspector General explained the decision to redact  “deliberations among policy officials” under exemption B5 and was in a manner “consistent with the Attorney General's 2009 FOIA guidance”  (emphasis added):

The June 25 response states that final determinations of classification decisions are made by senior personnel within the Department's FOIA office, assisted by subject matter experts in relevant bureaus and in the Office of the Legal Adviser, after referral of other agency equities have been made to the appropriate agencies and their comments received. The July 14response refers specifically to four emails that were identified for additional consultations regarding a proposed “B1” (Classified Information) FOIA exemption being changed to a “B5” (Privileged Communications) FOIA exemption during the State Department Legal Office's review. The July 14 response states the following:

Four of the emails were identified for review by the Bureau of Near Eastern Affairs (NEA), which is the Bureau with relevant subject matter expertise; two of the documents were substantively duplicates of each other. NEA consulted with the Office of the Legal Adviser regarding FOIA exemptions that were potentially available, including B1 (§ 1.4 (d) of E.O. 13526) and B5. NEA decided, consistent with the Attorney General's 2009 FOIA guidance, to redact certain limited information under exemption B5 which reflected deliberations among policy officials. Two other documents were proposed for possible upgrade which involved equites of other agencies. In one document, the Department of Defense decided not to seek a classification upgrade. The other document, which contained an FBI equity, could have been redacted under exemption 1, pursuant to § 1.4 (d) of E.O. 13526, or exemption 7, as law enforcement information. [Office of the Inspector General, 7/14/15]