“No Charges Are Appropriate In This Case”: Over A Year Of Errors, Mischaracterizations, and False Reporting About Hillary Clinton’s Email Use

Sixteen months after it was first discovered that Hillary Clinton used a private email server and address as secretary of state, which eventually triggered a security referral, the FBI has announced that it will recommend to Department of Justice prosecutors that “no charges are appropriate in this case.” Media Matters looks back at the errors, mischaracterizations, and false reporting surrounding the media coverage of Clinton’s email usage since March 2015.

March 2015

April 2015

May 2015

July 2015

August 2015

September 2015

October 2015

November 2015

January 2016

February 2016

March 2016

May 2016

June 2016

March 2015: NY Times And Other Outlets Made Incorrect Claims About Clinton Emails From The Start

NY Times Falsely Claimed Clinton Violated Federal Law Over Retention Of Private Emails

NY Times: Clinton's Use Of Private Email During Time At State Department May Have Violated Federal Law. In a March 2, 2015, report, The New York Times accused former Secretary of State Hillary Clinton of possibly having “violated federal requirements that officials' correspondence be retained as part of the agency's record” with the use of a personal email account for official government business during her time at the department. The Times reported, “Under federal law, however, letters and emails written and received by federal officials, such as the secretary of state, are considered government records and are supposed to be retained so that congressional committees, historians and members of the news media can find them. There are exceptions to the law for certain classified and sensitive materials.” [The New York Times, 3/2/15]

But The Law Overseeing Retention Of Private Emails Was Not Changed Until After Clinton Left The State Department

President Obama Signed Update To Federal Records Act In 2014. The Presidential and Federal Records Act Amendments of 2014 became law on November 26, 2014. [Congress.gov, accessed 3/3/15]

  • National Archives Official: 2014 Federal Records Law Clarified How Private Email Should Be Handled. Among the “major points” in the 2014 law highlighted by the National Archives was “Clarifying the responsibilities of Federal government officials when using non-government email systems.” [Records Express, National Archives, 12/2/14]
  • 2014 Federal Records Law Marked “The First Significant Changes To The Federal Records Act Of 1950.” According to the National Archives, the 2014 law marked “the first significant changes to the Federal Records Act of 1950.” [Records Express, National Archives, 12/2/14]

Law Was Signed “Two Years After Clinton Stepped Down.” Among the many who criticized the Times' insinuation that Clinton violated the law as secretary of state, Daily Banter contributor Bob Cesca was one of the first to note, “The article doesn't say which federal regulation, though. Why? Perhaps because the federal regulations went into effect in late November, 2014 when President Obama signed H.R. 1233, modernizing the Federal Records Act of 1950 to include electronic communications. It was signed two years after Clinton stepped down.” [The Daily Banter, 3/3/15, via Media Matters, 3/3/15]

The National Law Journal: Clinton “Obeyed The Law.” After the story broke, The National Law Journal consulted legal experts who corrected the Times’ original suggestion and explained that Clinton “obeyed the law” at the time with her use of email as secretary of state. From a March 9, 2015, article:

“There's not any blanket prohibition on any federal employee from using a personal email account to conduct government business,” said Potomac Law Group partner Neil Koslowe, a former Justice Department special litigation counsel who has worked on cases involving the Federal Records Act.

If it turns out that Clinton destroyed documents or mishandled classified information, that would be another story -- such violations can be criminal. However, the State Department has said there are “no indications” that Clinton improperly used her email for classified information.

The New York Times on March 2 reported that Clinton relied on her personal email account exclusively when she ran the State Department between 2009 and 2013, thwarting government record-keeping procedures.

National Archives and Records Administration regulations require emails to be “preserved in the appropriate agency recordkeeping system,” but when Clinton was in government there was no specified deadline for turning them over.

In 2013, David Ferriero, who heads the archives, testified before the House Committee on Oversight and Government Reform that the agency “discourages the use of private email accounts to conduct federal business, but understands that there are situations where such use does occur.”

Following that hearing, according to a statement from the archives, Congress amended the Federal Records Act and the Presidential Records Act in November 2014 -- 21 months after Clinton left government -- to “prohibit the use of private email accounts by government officials unless they copy or forward any such emails into their government account within 20 days.” [The National Law Journal, 3/9/15, via Media Matters, 3/9/15]

Multiple Media Figures Acknowledged That No Law Was Broken, In Contrast To NY Times' Rush To Judgment

NBC's Chuck Todd: “We Know She Followed The Letter Of The Law.” On the March 10, 2015, edition of MSNBC's MSNBC Live, Chuck Todd acknowledged that no law was broken, stating, “we know there are disclosure laws, we know she followed the letter of the law.” [MSNBC, MSNBC Live, 3/10/15]

MSNBC's Andrea Mitchell: “Absolutely” Agree That Clinton's Actions Were Legal. During the March 10, 2015, edition of MSNBC's Andrea Mitchell Reports, host Andrea Mitchell said she “absolutely” agreed with an assertion by her guest James Carville that Clinton's actions were “totally legal.” [MSNBC, Andrea Mitchell Reports, 3/10/15]

Newsweek's Kurt Eichenwald: Clinton Did Not Violate Any Regulation. In a March 10, 2015, Newsweek piece, senior writer and former New York Times columnist Kurt Eichenwald lambasted the Times' “weak standards employed to manufacture the scandal du jour,” noting that Clinton did not violate any regulations, because the Federal Records Act rules changed after Clinton left office. [Newsweek, 3/10/15, via Media Matters, 3/11/15]

CNN: “It Doesn't Appear Clinton Violated Federal Laws.” In a March 9, 2015, article, CNN reported that “experts have said it doesn't appear Clinton violated federal laws” and explained that Clinton's emails have “become more about bad optics and politics than any actual wrongdoing.” [CNN.com, 3/9/15, via Media Matters, 3/11/16]

Media Suggested That Clinton’s Use Of Private Email Was Unprecedented

Bloomberg: Revelation Of Personal Email Use “Is An Opportunity For Bush ... To Contrast Himself With Clinton.” On March 3, 2015, Bloomberg Politics reported that Jeb Bush's 2016 presidential campaign team “pounced on the revelation that Hillary Clinton used only personal e-mail as secretary of state” and called the Times report “an opportunity” for Bush “to contrast himself with Clinton” ahead of a 2016 presidential race:

The revelation is an opportunity for Bush, a likely Republican presidential candidate, to contrast himself with Clinton, the presumed Democratic frontrunner, on the issue of transparency. Bush, a famously active e-mailer as governor of Florida, in December said he intended to release about 250,000 messages from his time as governor, to accompany an e-book. [Bloomberg Politics, 3/3/15]

But Other Secretaries Of State Also Used Non-Official Email Accounts

Colin Powell: I Used Personal Email To Contact Staff, Ambassadors, Foreign Ministers. In his book It Worked For Me: In Life And Leadership, former Secretary of State Colin Powell wrote that during his tenure at the State Department during the Bush administration he used a personal email account and a private laptop computer to contact staff, ambassadors, and foreign ministers. From his book:

To complement the official State Department computer in my office, I installed a laptop computer on a private line. My personal email account on the laptop allowed me direct access to anyone online. I started shooting emails to my principal assistants, to individual ambassadors, and increasingly to my foreign-minister colleagues who like me were trying to bring their ministries into the 186,000-miles-per-second world. [Colin Powell, It Worked For Me: In Life And Leadership, page 151, via Media Matters, 3/3/15]

John Kerry Was Reportedly First Secretary Of State To Have A Government-Issued Email Account. The New York Times' Michael Schmidt noted during the March 3, 2015, edition of MSNBC's Morning Joe that according to the State Department, “John Kerry is the first Secretary of State in the history of the United States to have a government email account.” [MSNBC, Morning Joe, 3/3/15, via Media Matters, 3/3/15]

Right-Wing Media Claimed U.S. Ambassador To Kenya Was Forced To Resign Over Personal Email Like Clinton’s

Washington Examiner: “Clinton Ousted U.S. Ambassador For Using Private Email.” A March 5, 2015, Washington Examiner piece headlined “Clinton ousted U.S. Ambassador for using private email in 2012” claimed, “Despite relying exclusively on her own private email system during her time in office, Secretary of State Hillary Clinton ousted the U.S. ambassador to Kenya in 2012 in part for the same offense.” The Examiner went on to note that Ambassador Gration had also publicly berated staff members and “was roundly criticized for his confrontational leadership style.” [Washington Examiner, 3/5/15]

Weekly Standard: “Clinton State Department Ousted Ambassador Using Private Email.” Weekly Standard writer Mark Hemingway highlighted in a March 5, 2015, post the 2012 State Department inspector general's report under the headline “Clinton State Department Ousted Ambassador Using Private Email.” Hemingway noted that Gration “was fired for a myriad of reasons,” none of which he named, but he added that the incident nonetheless confirms that the “State Department policy was very clear. Using a private email outside the State Department's secure system was completely unacceptable. If this applied to ambassadors, one would think it was sensible policy for the Secretary of State as well.” [The Weekly Standard, 3/5/15]

Daily Caller: “US Ambassador Fired For Hillary-Like Use Of Private Email.” Daily Caller reporter Neil Munro in a March 5, 2015, post headlined “US Ambassador Fired For Hillary-Like Use Of Private Email” wrote, “The U.S. ambassador to Kenya was forced out in 2012 after an inspector general report showed managerial incompetence, including his use of a private email system to evade agency rules.” [The Daily Caller, 3/5/15]

But The Ambassador Was Forced Out Over A Damning Investigation Into His Management Failures, Not Simply Email

AP: “Gration Resigned After Seeing A Draft” Of Report “Highly Critical Of Gration's Leadership And Management Of The Embassy.” The Associated Press reported on June 30, 2012, that a State Department audit of Gration was “highly critical of Gration's leadership and management of the embassy.” From the article:

State Department officials said an internal audit of the U.S. Embassy in Nairobi to be released next month will be highly critical of Gration's leadership and management of the embassy, said the officials, who spoke on condition of anonymity because the audit is still being prepared and is confidential.

Gration resigned after seeing a draft of the report, the officials said.

Three U.S. Embassy employees told The Associated Press that Gration led the embassy using a “my way or the highway” military leadership style that didn't translate well in the civilian embassy world. The employees asked not to be identified, fearing retribution. [The Associated Press, 6/29/12]

Foreign Policy: Gration’s Review Was “One Of The Worst Reviews” Of An Ambassador “In Several Years.” Foreign Policy reported in June 2012 that Gration's review by the State Department's Office of the Inspector General “was described ... by multiple people briefed on its contents as one of the worst reviews of an ambassador's performance written by the IG's staff in several years.” From the article:

The impending release of a highly critical report by the State Department's Inspector General's office prompted the sudden resignation Friday of U.S. Ambassador to Kenya Scott Gration, according to administration and congressional sources.

The report was described to The Cable by multiple people briefed on its contents as one of the worst reviews of an ambassador's performance written by the IG's staff in several years. The bulk of the criticisms focused on Gration's terrible relationship with embassy staff since he took over as ambassador in February 2011 following a controversial two-year stint as President Barack Obama's special envoy for Sudan. [Foreign Policy's The Cable, 6/29/12]

State Inspector General Report: Gration “Lost The Respect And Confidence Of The Staff To Lead The Mission” And Was “Divisive And Ineffective.” The August 2012 report from the Department of State's Office of Inspector General noted that Gration “lost the respect and confidence of the staff to lead the mission.” From the report:

The Ambassador has lost the respect and confidence of the staff to lead the mission. Of more than 80 chiefs of mission inspected in recent cycles, the Ambassador ranked last for interpersonal relations, next to last on both managerial skill and attention to morale, and third from last in his overall scores from surveys of mission members. The inspectors found no reason to question these assessments; the Ambassador's leadership to date has been divisive and ineffective. [Inspection of Embassy Nairobi, Kenya, Department of State's Office of Inspector General, August 2012, via Media Matters3/6/15]

Politico Claimed Clinton Violated 2005 Rule Against Personal Email Accounts

Politico: “Clinton Private Email Violated 'Clear-Cut' State Dept. Rules.” Politico in a piece headlined “Clinton private email violated 'clear-cut' State Dept. rules” claimed, “The State Department has had a policy in place since 2005 to warn officials against routine use of personal email accounts for government work.” The article went on say the regulation was “in force during Hillary Clinton’s tenure as secretary of state” and “appears to be at odds with her reliance on a private email for agency business.” From the March 5, 2015, piece:

The State Department has had a policy in place since 2005 to warn officials against routine use of personal email accounts for government work, a regulation in force during Hillary Clinton’s tenure as secretary of state that appears to be at odds with her reliance on a private email for agency business, POLITICO has learned.

The policy, detailed in a manual for agency employees, adds clarity to an issue at the center of a growing controversy over Clinton’s reliance on a private email account. Aides to Clinton, as well as State Department officials, have suggested that she did nothing inappropriate because of fuzzy guidelines and lack of specific rules on when and how official documents had to be preserved during her years as secretary. [Politico, 3/5/15, via Media Matters, 3/6/15]

But Exemptions In 2005 Rule Could Allow Private Email Account

CNN: 2005 Rule “Filled With Exemptions That Could Allow Clinton To Use A Private Account.” A CNN report noted that the 2005 guidelines “were filled with exemptions that could allow Clinton to use a private account.” The article also relied on a source to claim that Clinton “was not automatically in violation of State Department policy when she exclusively used a private email during her four years as America's top diplomat.” From the March 6, 2015, article:

Clinton aides and department officials stressed this week that the former secretary of state did not violate State policy when she exclusively used a private email account for government work. However, it is currently unclear whether Clinton broke a State guideline dating back to 2005 that suggested “normal day-to-day operations be conducted on an (authorized information system), which has the proper level of security control.”

Those guidelines were filled with exemptions that could allow Clinton to use a private account.

The department official was careful to say that the people reviewing the documents are “not going to prejudge the outcome of the review of Secretary Clinton's 55,000 pages of emails.”

Clinton was not automatically in violation of State Department policy when she exclusively used a private email during her four years as America's top diplomat, the source added, contradicting other media on Thursday. [CNN, 3/6/15, via Media Matters, 3/6/15]

Washington Post Claimed State Department Was Reviewing Clinton’s Email To See If She Violated Policy

Wash. Post: “State Department Reviewing Whether Clinton E-mails Violated Security Rules.” The Washington Post, in a piece headlined “State Department reviewing whether Clinton e-mails violated security rules,” originally claimed that the State Department was “reviewing whether Hillary Rodham Clinton’s use of private e-mail during her four years leading the agency violated policies designed to protect sensitive information.” [The Washington Post, 3/6/15]

But State Department’s Investigation Was Looking Into What Emails Could Be Released Publically

CNN: State Department Reviewing Emails “To Determine What Can Be Released To The Public,” Not Whether There Was Wrongdoing. CNN reported that the State Department was “reviewing Hillary Clinton's emails to determine what can be released to the public, not whether she did anything wrong, according to a senior department official.” [CNN, 3/6/15]

Wash. Post Backtracked And Clarified Report. The Washington Post later clarified its original report, changing the headline of the article and the lead paragraph to note that the State Department was not reviewing Clinton herself, according to a March 6, 2015, article from media reporter Erik Wemple:

Here’s the headline on the original version of The Washington Post’s story on former secretary of state Hillary Rodham Clinton’s e-mail troubles:

State Department reviewing whether Clinton e-mails violated security rules

This is now the current headline:

Clinton e-mail review could find security issues

Quite a difference lies between those two versions. The first asserts a purpose behind the review — namely, that the State Department wants to see whether Clinton did something improper or perhaps illegal. The second suggests that any such finding would be incidental.

Or, as State Department Deputy Spokesperson Marie Harf told the Erik Wemple Blog this afternoon, “There’s a big difference between reviewing something for public release and reviewing whether regulations are broken.” Indeed, says Harf, the review will examine which of the more than 50,000 pages of e-mails handed over by Clinton last fall from her personal e-mail archives are suitable for release to the public. A review will consider whether sensitive or classified information should preclude their issuance.

Here’s a side-by-side of the story’s lead paragraph. Initial lead:

The State Department is reviewing whether Hillary Rodham Clinton’s use of private e-mail during her four years leading the agency violated policies designed to protect sensitive information, a senior department official said Thursday night.

New lead:

A State Department review of Hillary Rodham Clinton’s e-mails from her time leading the agency could reveal whether she violated security policies with her use of a private e-mail server, a senior department official said Thursday night. [The Washington Post, 3/6/15, via Media Matters, 3/16/15]

AP Claimed Clinton Used Fake Identity To Register Domain Name For Her Email Account

AP: Person Who Set Up Or Maintained Server Traced To “Eric Hoteham.” The Associated Press claimed that it was “unclear whom Clinton hired to set up or maintain her private email server, which the AP traced to a mysterious identity, Eric Hoteham.” The AP noted that the name “does not appear in public records databases, campaign contribution records or Internet background searches.” From a March 4, 2015, report:

It was unclear whom Clinton hired to set up or maintain her private email server, which the AP traced to a mysterious identity, Eric Hoteham. That name does not appear in public records databases, campaign contribution records or Internet background searches. Hoteham was listed as the customer at Clinton's $1.7 million home on Old House Lane in Chappaqua in records registering the Internet address for her email server since August 2010.

The Hoteham personality also is associated with a separate email server, presidentclinton.com, and a non-functioning website, wjcoffice.com, all linked to the same residential Internet account as Mrs. Clinton's email server. The former president's full name is William Jefferson Clinton. [The Associated Press, 3/4/15]

But The Identity Was Just A Misspelled Name Of A Clinton Aide

NY Times: “Eric Hoteham” Is A “Misspelled” Name Of A “Former Aide To The Clintons.” The New York Times noted that “Eric Hoteham” is actually Eric Hothem, “a former aide to the Clintons, [who] now works in finance in Washington.” The Times also noted that his name was “misspelled in Internet records.” From a March 4, 2015 article:

In earlier years, Mrs. Clinton’s account at clintonemail.com was connected to a server registered to the Clintons’ Chappaqua home in the name of Eric P. Hothem. Mr. Hothem, a former aide to the Clintons, now works in finance in Washington, according to regulatory disclosure documents.

Mr. Hothem, whose name was misspelled in Internet records, did not return a message left on Wednesday with an assistant at his office. Mr. Cooper, whose name is on the clintonemail.com domain registration, now works at Teneo Holdings, a corporate advisory firm with a broad array of global business clients partly run by Douglas J. Band, a former adviser to Bill Clinton. [The New York Times, 3/4/15, via Media Matters, 3/8/15]

Right-Wing Media Claimed Clinton Improperly Deleted Emails

Fox's Megyn Kelly: Clinton “Culled Through” Emails To Remove Some Before Handing Them Over To State Department. On the March 6, 2015, edition of The Kelly File, Megyn Kelly speculated that Clinton “destroyed” some emails before handing over 55,000 pages of emails to the State Department, saying, “What about the ones that she culled through to get it down to 55,000 pages? How many pages are there? How many e-mails are there? We don't know.” [Fox News, The Kelly File, 3/6/15, via Media Matters, 3/9/15]

WSJ: “No One Else Will Be Able To See How Much Of That 'Private' Business Was Really Private.” The Wall Street Journal's editorial board claimed that it was suspiciously “convenient” for Clinton to choose which emails were work-related and which were private. From a March 10, 2015, editorial:

The biggest news Tuesday was Mrs. Clinton's disclosure that she has since destroyed the rest of the emails that she didn't turn over to State. These were “personal” business, she averred, and “I didn't see any reason to keep them.” They were about, you know, things like daughter Chelsea's wedding, her mother's funeral, and her “yoga routines,” and “no one wants their personal emails made public.”

Now, that's what we call convenient. With those emails gone, and her private server off-limits to investigators, no one else will be able to see how much of that “private” business really was private. Though Mrs. Clinton conducted both State business and personal business in her personal account, only she gets to determine what was really personal and what was the business of State. [The Wall Street Journal, 3/10/15, via Media Matters, 3/12/15]

State Policy Lets Employees Pick Which Emails To Preserve

State Department Regulations: Employees “Must Decide Whether A Particular Message Is Appropriate For Preservation.” According to the U.S. Department of State's official guidance for “e-mail communications,” the specific creators and recipients of electronic correspondence “must decide whether a particular message is appropriate for preservation.” The guidelines specifically note that the State Department does not intend to preserve “every e-mail message” sent or received by employees:

The intention of this guidance is not to require the preservation of every E-mail message. Its purpose is to direct the preservation of those messages that contain information that is necessary to ensure that departmental policies, programs, and activities are adequately documented. E-mail message creators and recipients must decide whether a particular message is appropriate for preservation. In making these decisions, all personnel should exercise the same judgment they use when determining whether to retain and file paper records. [U.S. Department of State, Foreign Affairs Manual, accessed 3/11/15, via Media Matters3/12/15]

Fox Host Claimed Clinton Lied About Not Being Able To Have Multiple Email Accounts On BlackBerry Phone

Fox’s Eric Bolling: Clinton “Lying” About Being Unable To Have Multiple Email Accounts On BlackBerry. Fox co-host Eric Bolling accused Clinton of “blusters” and “lying” for saying in her March 10, 2015, press conference that she was unable to securely access multiple email accounts on her mobile phone as secretary of state, opting to use her own email server instead of using two phones. Said Bolling, “Are you kidding me? Any tenth grader could set up multiple email accounts on a single handheld device. Does she think the American people are that stupid?" [Fox News, The Five, 3/10/15, via Media Matters, 3/10/15]

But BlackBerrys In 2009 Could Not Have Two Secure Email Accounts

BlackBerrys In 2009 Could Not Secure Two Email Accounts Like Clinton’s. Mashable noted that maintaining separate personal and government accounts on the same device is less secure, presenting a “real concern of attack vectors on the personal side.” Moreover, when Clinton became secretary of state in 2009, “there was no standard way to secure a BlackBerry like Clinton's with two email accounts, at least not without giving the IT person in charge complete dominion over all the data on the phone. To fulfill the criteria that Clinton demanded -- secure email that's not sitting on a cloud service, plus a single-BlackBerry solution -- she had just one option: Set up her own email server.” [Mashable, 3/10/15, via Media Matters, 3/10/15]

CNN Claimed Clinton Gave Her Emails To State Department In Paper Form To Make It Harder For Government To Review Them

CNN: Clinton Handing Over Emails To State Department In Paper Form Designed To “Slowdown” Review. A CNN article claimed Clinton intentionally handed over to the State Department “55,000 pages of emails for public release — but in paper, not their original electronic format.” CNN added that this would make “it harder and more expensive for the federal government to quickly review her emails and decide what’s OK for the public and what’s not,” and called it a “data dump” intended to “slowdown opponents.” From the March 11, 2015, article:  

In an act of semi-transparency, Hillary Clinton has handed the State Department 55,000 pages of emails for public release — but in paper, not their original electronic format.

That complicates things.

By doing it that way, Clinton has made it harder and more expensive for the federal government to quickly review her emails and decide what’s OK for the public and what’s not.

[...]

The State Department will probably scan them all to make them digital again (a process that’s maybe 30 hours long). Then it’ll have to run optical character recognition software on it to make it searchable (up to another 30 hours). Then its lawyers will read them line-by-line to block out material deemed classified (taking a few weeks or months).

Trial lawyers who are used to suing big companies say this is a classic “data dump.” That’s when a company fighting a lawsuit attempts to slowdown opponents by drowning them in unorganized information that’s difficult to comb through. [CNN, 3/11/15]

But State Department Policy Requires Preserved Emails To Be Printed Out

State Department Manual: Messages Being Preserved As Records “Must Be Printed Out.” The State Department Foreign Affairs Manual says that all “messages warranting preservation as records …must be printed out and filed with related records”:

Until technology allowing archival capabilities for long-term electronic storage and retrieval of E-mail messages is available and installed, those messages warranting preservation as records (for periods longer than current E-mail systems routinely maintain them) must be printed out and filed with related records. [State Department Foreign Affairs Manual, accessed 3/11/15]

CNN Forced To Correct Flawed Report. Following the release of the article, CNN added an editor’s note saying that “the State Department told CNNMoney that it is standard practice to print emails for review”:

An earlier version of this story said that Hillary Clinton's decision to provide only printed copies -- as opposed to electronic copies - of her emails would be harder and more expensive for the government to review. After our story was published, the State Department told CNNMoney that it is standard practice to print emails for review. As a result, that point was removed, and the headline was changed. [CNN, 3/12/15, via Media Matters, 3/12/15]

Right-Wing Media Speculated That If Clinton Signed OF-109 Separation Form, She Must Have Violated The Law

Fox's Steve Doocy: “Essentially [Clinton] Would Be Committing Perjury” If She Had Signed OF-109 Form. Speaking about whether Clinton had signed the OF-109 form -- a document State Department employees must sign upon leaving the department, proclaiming that they have turned over all official documents -- Fox & Friends co-host Steve Doocy alleged on March 17, 2015, that if she had signed the form, “essentially [Clinton] would be committing perjury.” Co-host Elisabeth Hasselbeck agreed, adding that “she either signed it and hasn't turned over the documents, which is a crime, or she was given special treatment.” [Fox News, Fox & Friends, 3/17/15, via Media Matters, 3/17/15]

Fox's Megyn Kelly: Clinton May Have Committed A Felony By Signing Form OF-109. Host Megyn Kelly alleged during the March 11, 2015, edition of Fox News’ The Kelly File that Clinton may have broken the law had she signed the OF-109 form upon leaving the State Department and not immediately turned over her emails. Interviewing Shannen Coffin, former legal counsel to former Vice President Dick Cheney, Kelly asked, “Did [Clinton] commit a crime?” [Fox News, The Kelly File, 3/17/15]

National Review: “If [Clinton] Signed The Form, ... She May Have Committed A Felony.” In a March 16, 2015, post, National Review claimed that the question of whether Clinton signed the OF-109 documents is key to “understanding whether Clinton violated the law,” and that if she did, “she may have committed a felony.” [National Review, 3/16/15]

But Neither Clinton Nor Colin Powell Signed That Form

State Dept. Spokesperson: No Record That Clinton Or Her Predecessors Signed Separation Statement Upon Leaving State Department. State Department spokesperson Jen Psaki explained in a March 17, 2015, press briefing that after looking through Clinton's documents at the State Department, the department did not find “any record of her signing the OF-109,” and in addition, “we did not locate any record of either of her immediate predecessors signing this form.” [State Department Press Briefing, 3/17/15]

Colin Powell Admitted He Did Not Save Emails From Personal Account During Time As Secretary Of State. Speaking on ABC's This Week, former Secretary of State Colin Powell addressed the fact that not only did he not use government email, but he also failed to save email records from his time at the State Department. From a March 8, 2015, Yahoo News article:

On ABC's “This Week,” former Secretary of State Colin Powell declined to comment on the Clinton controversy, saying his emails as secretary were never disclosed because he did not save them.

“I don't have any to turn over,” Powell said. "I did not keep a cache of them. I did not print them off. I do not have thousands of pages somewhere in my personal files. And, in fact, a lot of the emails that came out of my personal account went into the State Department system. They were addressed to State Department employees and the state.gov domain. But I don't know if the servers at the State Department captured those or not.

“They were all unclassified and most of them, I think, are pretty benign,” Powell added. “So I'm not terribly concerned even if they were able to recover them.” [Yahoo News, 3/8/15, via Media Matters, 3/17/15]

AP Claimed Clinton’s iPad Use Contradicted Her Claim That She Used Private Email For Convenience

AP: Clinton's iPad Use “Contradicts Her Earlier Claims” About Email Account. The Associated Press claimed emails it received from the State Department in a Freedom Of Information Act (FOIA) request show Clinton used an iPad for email, “despite her explanation she set up a private email account and homebrew server while she was the nation's top diplomat so that she could carry a single device.” From the April 1, 2015, AP report.

The State Department says it can find only four emails sent between former Secretary Hillary Rodham Clinton and her staff concerning drone strikes and certain U.S. surveillance programs, and those notes have little to do with either subject.

She asks for a phone call in one, a phone number in another. She seeks advice on how best to condemn information leaks, and accidentally replies to one work email with questions apparently about decorations.

The messages also reveal Clinton used an iPad to email while secretary of state in addition to her BlackBerry, despite her explanation she set up a private email account and homebrew server while she was the nation's top diplomat so that she could carry a single device.

The four emails were obtained by The Associated Press under a 2013 Freedom of Information Act request and offer one of the first looks into Clinton's correspondence at the State Department. It is the first time it has provided Clinton-related documents in response to several outstanding FOIA requests, the first of which AP filed in 2010. [The Associated Press, 4/1/15]

But Apple Released The iPad In 2010, After Clinton's Email Account Was Already Established

CNN: “Apple Released The iPad In 2010, A Year After Clinton Took Over At State.” A March 31, 2015, CNN report about Clinton using an iPad noted that Apple “released the iPad in 2010, a year after Clinton took over at State,” and it also quotes a source saying what Clinton was trying to avoid carrying was “‘a second phone.’” [CNN, 3/31/15, via Media Matters, 4/1/15]

April 2015: NY Times Continued To Suggest Wrongdoing From Clinton

NY Times Claimed Clinton Purposely Ignored 2012 Letter From Congress Asking If She Had Private Email Account

NY Times: Clinton Did Not Reply To Letter Asking If She Used Private Email. The New York Times reported that Clinton “was directly asked by congressional investigators in a December 2012 letter” whether she used a private email address. The Times added that Clinton “did not reply to the letter” and when the State Department “answered in March 2013, nearly two months after she left office, it ignored the question and provided no response.” From the April 14, 2015, article:

Hillary Rodham Clinton was directly asked by congressional investigators in a December 2012 letter whether she had used a private email account while serving as secretary of state, according to letters obtained by The New York Times.

But Mrs. Clinton did not reply to the letter. And when the State Department answered in March 2013, nearly two months after she left office, it ignored the question and provided no response.

The query was posed to Mrs. Clinton in a Dec. 13, 2012, letter from Representative Darrell Issa, the Republican chairman of the House Committee on Oversight and Government Reform. Mr. Issa was leading an investigation into how the Obama administration handled its officials’ use of personal email.

[...]

When Mr. Issa received a response from the State Department on March 27, [2013,] all he got was a description of the department’s email policies. According to the letter, any employee using a personal account “should make it clear that his or her personal email is not being used for official business.” [The New York Times, 4/14/15]

But Other Agencies Received The Same Question From Congress And Did Not Answer Either

Other Agencies Got Same Letter And Did Not Answer Email Question. Media Matters obtained responses to Issa’s letter from the Department of Labor (DOL) and the Department of Housing and Urban Development (HUD). Rather than answer the letter directly, both agencies gave a description of department policies:

Media Matters has obtained the responses from two other agencies: the Department of Labor (DOL) and the Department of Housing and Urban Development (HUD). Both letters to Issa provide a description of department policies rather than direct responses to the congressional inquiry, and one was sent a month later than State's.

The Labor Department responded to Issa's letter on April 26, 2013. The congressional inquiry had been sent to then-Secretary Hilda Solis, who stepped down before Labor responded, just as Clinton had stepped down as Secretary of State between State's receipt of and response to Issa's letter.

In his response, Assistant Secretary for Congressional and Intergovernmental Affairs Brian Kennedy did not directly address Issa's inquiry about whether Solis had used personal email, instead stating that the Department “takes seriously its responsibility to ensure that DOL officials and employees are educated on and comply with all applicable laws, rules, and regulations governing official communications and document management policies” and providing a general overview of Department policies, specifically on social media.

The Department of Housing and Urban Development responded to Issa's inquiry on January 11, 2013. Assistant Secretary for Congressional and Intergovernmental Relations Peter A. Kovar wrote that the “forwarding of HUD email by HUD employees to their personal email account is permitted only in narrow circumstances,” but noted that “originators” of emails on any system are “responsible for determining the record value of any transmission.” HUD did not directly address Issa's inquiry into whether former HUD Secretary Shaun Donovan had ever used a personal email account to conduct government business. [Media Matters, 4/15/15]

May 2015: More False Claims Emerged Over FOIA And Clinton’s Email Address

Fox Used NY Times Report To Claim Clinton Had A Second Email Address

NY Times Published Documents Showing Two Clinton Email Address Names. The New York Times on May 18, 2015, released selected emails from Clinton while she was secretary of state, which showed her sending emails from HDR22@clintonemail.com and hrod17@clintonemail.com. [The New York Times, 5/18/15]

Fox’s Doug McKelway: “Second Email Account” A “Direct Contradiction” Of What Clinton Claimed. Fox correspondent Doug McKelway claimed Clinton had a “second email account,” which he called a “direct contradiction” to what she previously claimed. From the May 19, 2015, edition of Fox News’ America’s Newsroom:

DOUG MCKELWAY: Of greater concern to Secretary Clinton is the revelation that she used a second email account, in direct contradiction to what she said March 10 at the United Nations, when she first addressed the personal email server controversy.

[...]

That statement was not made in testimony, nor was it made under oath, so perhaps there's some wiggle room there, but I'm not sure how she gets out of that. [Media Matters, 5/19/15]

Fox’s Gregg Jarrett: Either Clinton “Forgot” Or “Was Lying” About Having A Second Email Address. Guest host Gregg Jarrett claimed that the Times “reveal[ed]” Clinton had a second address and said, “Either she forgot, or she was lying” about having a second address. From the May 19, 2015, edition of Fox News’ Happening Now:

GREGG JARRETT (HOST): Newly surfaced documents revealing that 2016 front-runner used a second private address while running the State Department.

[...]

Rich, we played the soundbite at the top of the hour of Hillary Clinton insisting she only had one email account. Now it turns out she had two. Either she forgot, or she was lying. What do you think?" [Fox News, Happening Now, 5/19/15]

Clinton Had Only One Email Address, And The Account Name Changed After She Left State

Clinton Changed Address Name After Leaving State Department. Clinton’s lawyer in a March 2015 letter noted that Clinton changed her email address when she left the State Department in 2013 because the website Gawker had published emails that revealed her “HDR22” address. According to her office, when this change occurred, the new address replaced the old address on the digital records of her previous emails, which is why her old emails provided to the State Department had her new email address name. [Media Matters, 5/19/15]

Wall Street Journal Suggested Clinton’s Staff Blocked Documents And Emails Requested Under FOIA

WSJ: Clinton’s Staff “Blocked” Documents Requested Under FOIA. A Wall Street Journal article claimed that Clinton’s staff while she was secretary of state “scrutinized politically sensitive documents requested under public-records law and sometimes blocked their release.” The article in particular claimed that Clinton’s staff of staff, Cheryl Mills, “told State Department records specialists she wanted to see all documents requested on the controversial Keystone XL pipeline, and later demanded that some be held back.” From the May 19, 2015 article:

When Hillary Clinton was secretary of state, her staff scrutinized politically sensitive documents requested under public-records law and sometimes blocked their release, according to people with direct knowledge of the activities.

In one instance, her chief of staff, Cheryl Mills, told State Department records specialists she wanted to see all documents requested on the controversial Keystone XL pipeline, and later demanded that some be held back.

In another case, Ms. Mills’s staff negotiated with the records specialists over the release of documents about former President Bill Clinton’s speaking engagements—also holding some back.

[...]

Questions about the transparency of Mrs. Clinton’s State Department tenure have been bubbling ever since it was revealed that she exclusively used a private email account to conduct her work as secretary. The existence of that private system, which is being investigated by a House special committee probing the 2012 attack on a U.S. diplomatic outpost in Benghazi, Libya, meant the department didn’t have access to her emails when public requests to see them came in.

[...]

State Department spokesman Alec Gerlach said documents aren’t withheld unless they fit under exemptions spelled out in the public-records law. These include avoiding harm to national security, trade-secret exposure or privacy violations.

“It is entirely appropriate for certain Department personnel to be made aware of documents that could potentially respond to Freedom of Information Act requests,” and these people may be asked for guidance, Mr. Gerlach said, adding: “This is not unique to any Secretary’s tenure.”

[...]

Experts on FOIA said it might be acceptable for records reviewers to seek the views of political appointees, but there should be no negotiation. “Ultimately, the career people have to be the ones who make the final call,” said Miriam Nisbet, who recently retired as director of the federal FOIA ombudsman office at the National Archives and Records Administration. [The Wall Street Journal, 5/19/15, via Media Matters, 5/20/15]

But WSJ’s Report Has No Proof Clinton’s Staff Actually Blocked Documents From Public Release

Sources Cited In WSJ Article Did Not Show Aide Had Final Say In Document’s Release. The sources cited in the Wall Street Journal article never showed that Mills was the person directly responsible for whether to release these documents, and a former State Department official told Media Matters, “My experience with the Keystone FOIA review was no different than other FOIA reviews” and “to suggest that anyone inappropriately inserted themselves in the process would be wrong”:

The article does not establish that Mills made the final decisions with regard to those documents rather than career employees -- indeed, as the article notes, some of those documents she flagged were nonetheless released with redactions.

A former State Department official familiar with the Keystone XL review disputed the suggestion of undue pressure in a statement to Media Matters, saying, “My experience with the Keystone FOIA review was no different than other FOIA reviews. There was a process, and it was followed. There was of course intense press attention, which meant we would keep senior officials apprised of when documents would be released, but to suggest that anyone inappropriately inserted themselves in the process would be wrong.”

[...]

But that source would not allege that Mills' office had the “final say” over the release of the documents, and acknowledged that while “some” of the flagged documents were withheld, others were redacted or released, again undermining the Journal's implication of wrongdoing. [Media Matters, 5/20/15]

July 2015: NY Times Botched Report Alleging Criminal Probe, And Conservative Media Misleadingly Compared Clinton To David Petraeus

Politico Claimed Clinton Emailed That She Would Pass Along Email Regarding Media Matters To White House

Politico: Clinton Said In Email, “I’m Pushing To [White House]” Media Matters Articles. Politico claimed that Clinton confidant and Media Matters consultant Sidney Blumenthal emailed Clinton in October 2012 “links to four Media Matters posts criticizing Fox News and Republicans for politicizing the Benghazi attacks,” to which Clinton responded, “Thanks, I'm pushing to WH.” From the original text of the June 17, 2015, article (preserved by Media Matters):

While still secretary of state, Clinton emailed back and forth with Blumenthal about efforts by one of the groups, Media Matters, to neutralize criticism of her handling of the deadly assault on the U.S. consulate in Benghazi, Libya, sources tell POLITICO.

“Got all this done. Complete refutation on Libya smear,” Blumenthal wrote to Clinton in an Oct. 10, 2012, email into which he had pasted links to four Media Matters posts criticizing Fox News and Republicans for politicizing the Benghazi attacks and challenging claims of lax security around the U.S. diplomatic compound in Benghazi, according to a source who has reviewed the email exchange. Blumenthal signed off the email to Clinton by suggesting that one of her top aides, Philippe Reines, “can circulate these links,” according to the source. Clinton responded: “Thanks, I'm pushing to WH,” according to the source.

The emails were not included in documents originally turned over by the State Department. [Politico, 6/17/15, via Media Matters, 6/17/15]

But Clinton Was Responding To An Email Regarding A Salon Article, Not Content From Media Matters

Rep. Elijah Cummings: Clinton Statement Not “In Response” To Media Matters Email. Rep. Elijah Cummings (D-MD), ranking member of the House Select Committee on Benghazi, wrote in a letter to chairman Rep. Trey Gowdy (R-SC) that Clinton “did not make that statement in response to this email” reported by Politico. Rather, she was “responding to an email from Mr. Blumenthal forwarding an article from Salon.com reporting that Republicans were planning to claim inaccurately during the presidential debates that the White House had advance knowledge about the Benghazi attacks and failed to act on it.” From the July 6, 2015 letter:

Now that the emails quoted in this story have been released, it is clear that this source provided the following inaccurate information:

  • First, the source claimed that Secretary Clinton wrote “Thanks, I’m pushing to WH” in response to an email from Mr. Blumenthal on October 10. In fact, she did not make that statement in response to this email. Secretary Clinton was responding to a completely different email more than a week earlier, on October 1.
  • Second, the source claimed that Secretary Clinton was responding to a suggestion from Mr. Blumenthal that Philippe Reines circulate links to four Media Matters articles that refuted the way the “right-wing media” was covering Republican statements about the Benghazi attacks. In fact, Secretary Clinton was responding to an email from Mr. Blumenthal forwarding an article from Salon.com reporting that Republicans were planning to claim inaccurately during the presidential debates that the White House had advance knowledge about the Benghazi attacks and failed to act on it. The article included no reference to Mr. Reines at all.

[...]

It appears that this source fed Politico an inaccurate characterization of these emails and that Politico accepted this mischaracterization without obtaining the emails themselves. [Letter to Trey Gowdy, chairman of the Select Committee on the Events Surrounding the 2012 Terrorist Attack in Benghazi, 7/6/15]

Cummings: Email Had Been Turned Over To The State Department. Cummings also wrote that the email had been turned over to the committee by the State Department itself “on February 13, 2015, marked with Bates number STATE-SCB0045548-SCB0045550.” [Letter to Trey Gowdy, chairman of the Select Committee on the Events Surrounding the 2012 Terrorist Attack in Benghazi, 7/6/15]

Politico Later Corrected The Article. In response to Cummings’ letter, Politico removed, “‘Thanks, I'm pushing to WH,’ according to the source” from the article, writing in a correction at the bottom, “A previous version of this story incorrectly attributed a Clinton email as a response to the Blumenthal email.” [Politico, 6/18/15]

Trey Gowdy Claimed Clinton Lied About Never Being Subpoenaed About Her Emails

CNN's Brianna Keilar Suggested Clinton Deleted Emails That Were Under Subpoena. CNN's Brianna Keilar suggested that Clinton deleted emails that were under subpoena in an interview with Clinton, who refuted the claim, saying, “I've never had a subpoena.” From the July 7, 2015, edition of CNN’s The Situation Room:

BRIANNA KEILAR: One of the issues that has eroded some trust that we've seen is the issue of your email practices while you were secretary of state. I think there's a lot of people who don't understand what your thought process was on that.

Can you tell me the story of how you decided to delete 33,000 emails and how that deletion was executed?

HILLARY CLINTON: Well, let's start from the beginning. Everything I did was permitted. There was no law, there was no regulation, there was nothing that did not give me the full authority to decide how I was going to communicate. Previous secretaries of state have said they did the same thing. And people across the government knew that I used one device. Maybe it was because I am not the most technically capable person and wanted to make it as easy as possible.

KEILAR: But you said they -- that they did the same thing, that they used a personal server and --

CLINTON: Well, personal e-mail --

KEILAR: -- while facing a subpoena, deleted emails from them?

CLINTON: You know, you're starting with so many assumptions that are -- I've never had a subpoena. There is -- again, let's take a deep breath here. Everything I did was permitted by law and regulation. I had one device. When I mailed anybody in the government, it would go into the government system. Now, I didn't have to turn over anything. I chose to turn over 55,000 pages, because I wanted to go above and beyond what was expected of me, because I knew the vast majority of everything that was official already was in the State Department system. [CNN, The Situation Room, 7/7/15]

Benghazi Committee Press Release: Subpoena Release Is “In Response To [Clinton's] Inaccurate Claim She Had Not Been Subpoenaed.” A press release by the House Select Committee on Benghazi, chaired by Gowdy, accused Clinton of making an “inaccurate claim she had not been subpoenaed” regarding her emails. From the July 8, 2015, press release :

The House Select Committee on Benghazi today released its March 4, 2015, subpoena to former Secretary of State Hillary Clinton in response to her inaccurate claim she had not been subpoenaed. The committee subpoenaed Clinton directly after it became aware of her exclusive use of personal email and a server and that the State Department was not the custodian of Clinton's official record. The State Department failed to reveal this essential information to the Benghazi Committee or any other investigation into the Benghazi terrorist attacks until days before a media outlet was going to publish the information, meaning no investigation prior to the Benghazi Committee's had access to the Secretary of State's communications as part of its review.

“The committee has issued several subpoenas, but I have not sought to make them public,” said committee Chairman Trey Gowdy. “I would not make this one public now, but after Secretary Clinton falsely claimed the committee did not subpoena her, I have no choice in order to correct the inaccuracy. The committee immediately subpoenaed Clinton personally after learning the full extent of her unusual email arrangement with herself, and would have done so earlier if the State Department or Clinton had been forthcoming that State did not maintain custody of her records and only Secretary Clinton herself had her records when Congress first requested them.” [House Select Committee on Benghazi, 7/8/15]

Right-Wing Media Push Gowdy’s Claim

Fox's Eric Bolling: Clinton Was “Busted” In A “Big Whopper” Of A Lie. Co-host Eric Bolling parroted Gowdy’s claim on the July 8, 2015, edition of Fox News' The Five, declaring that Clinton was “busted” by the Benghazi committee chairman and labeling her claim a “big whopper.” Bolling also claimed that Clinton “said several things that can be construed as lies.” [Fox News, The Five, 7/8/15]

Fox's Mike Emanuel: Clinton Made An “Unforced Error” About Email Subpoena Question. Fox senior congressional correspondent Mike Emanuel on the July 8, 2015, edition of Fox News’ Special Report with Bret Baier aired a response from Gowdy and said Clinton made “an unforced error on the subpoena.” [Fox News, Special Report with Bret Baier, 7/8/15]

Breitbart News: “Clinton Lied About Subpoenas In CNN Interview.” A Breitbart News article headlined “Clinton Lied About Subpoenas In CNN Interview” suggested that Clinton “destroy[ed] information covered by a subpoena” and lied about it to CNN. From the July 8, 2015 article:

In between inviting Hillary Clinton to talk about how much she disapproves of her Republican rivals for president, Brianna Keilar of CNN managed to slip in a perfunctory question about Clinton's outrageous violation of law and policy to set up a private email server, where correspondence she didn't want Congress or the American people to see could be quietly disposed of.

Of course, because this is Hillary Clinton we're talking about, she couldn't get through even the softest of softball interviews without lying.

“Well, let's start from the beginning, everything I did was permitted,” Clinton insisted. “There was no law, no regulation, there was nothing that did not give me the full authority to decide how I was going to communicate.”

[...]

A quick safety reminder, as a public service to all readers: if you, unlike Hillary Clinton, destroy information covered by a subpoena, you're going to have a lot more than a mildly uncomfortable moment during an interview with a star-struck reporter to deal with. [Breitbart News, 7/8/15]

But Clinton Denied She Had Been Subpoenaed When She Deleted Emails, Not That She Had Ever Received A Subpoena

Rep. Elijah Cummings: Clinton Was Responding To Question About Whether She Deleted Emails “While Facing A Subpoena.” Business Insider reported that Rep. Elijah Cummings (D-MD), the ranking minority member of the Benghazi Select Committee, noted that Clinton in the CNN interview was asked about whether “she deleted emails ‘while facing a subpoena.’” The article also quoted a Clinton spokesperson who said the question suggested “that a subpoena was pending at the time” that she deleted personal emails. From the July 8, 2015, Business Insider article:

Rep. Elijah Cummings (D-Maryland), the ranking Democratic member on the committee, argued in response to the release of the subpoena that Clinton was responding to a question in the interview about whether she deleted emails “while facing a subpoena.”

“The Committee's press release today supposedly revealing the existence of the subpoena is nothing but a stunt in this latest taxpayer-funded attack against Secretary Clinton,” Cummings said.

A spokesman for Clinton said she “was asked about her decision to not retain her personal emails after providing all those that were work-related, and the suggestion was made that a subpoena was pending at the time.” [Business Insider, 7/8/15]

FactCheck.org: Clinton Objected To Keilar's “Assumption” That Personal Emails Were Deleted “While Facing A Subpoena.” FactCheck.org explained that Clinton was denying the suggestion that she deleted personal emails while under subpoena. From the July 8, 2015, FactCheck.org report:

As Gowdy pointed out, Clinton did receive a House subpoena on March 4, and it was well reported. But Clinton's denial came in response to a question about deleting emails “while facing a subpoena,” and Clinton objected to Keiler's “assumption.” Clinton's campaign said that the emails were deleted before she received the subpoena and that was the point Clinton was making. [FactCheck.org, 7/8/15]

NY Times Reported That Two Inspectors General Sought A Criminal Probe Into Clinton Emails

NY Times Reports Clinton Is Target Of Criminal Probe Into Personal Email Use. On July 23, 2015, The New York Times published a report headlined “Criminal Inquiry Sought In Clinton's Use Of Email,” which reported that two inspectors general were seeking a criminal investigation into Clinton's use of personal email while at the State Department, according to anonymous "senior government officials.” From the text of the original version of the article:

Two inspectors general have asked the Justice Department to open a criminal investigation into whether Hillary Rodham Clinton mishandled sensitive government information on a private email account she used as secretary of state, senior government officials said Thursday. [NewsDiff.org, 7/23/15]

NY Times Article Fell Apart As Justice Department Said It Was Never Asked To Open Criminal Probe Into Clinton’s Emails

AP: U.S. Official Said Request Of DOJ “Doesn't Suggest Any Wrongdoing By Clinton.” The AP quoted an anonymous U.S. official who noted that the referral did not implicate Clinton in any wrongdoing. From the July 24, 2015, article:

Federal investigators have asked the Justice Department to look into a “potential compromise of classified information” surrounding the private email server used by former Secretary of State Hillary Rodham Clinton, a department official said Friday.

The official said the referral by the investigators did not relate to possible criminal wrongdoing, despite saying earlier Friday that it did. Another U.S. official said it was unclear whether classified information was mishandled and that the referral didn't necessarily suggest any wrongdoing by Clinton, the leading Democratic candidate in the 2016 presidential race. [The Associated Press, 7/24/15]

Ranking Member On Benghazi Committee: State IG Said "He Never Asked The Justice Department To Launch A Criminal Investigation.” The Hill reported that Benghazi Committee ranking member Rep. Elijah Cummings (D-MD) said he “spoke personally to the State Department Inspector General on Thursday, and he said he never asked the Justice Department to launch a criminal investigation of Secretary Clinton's email usage.” From the July 24, 2015, article:

Rep. Elijah Cummings (D-Md.) is rebutting reports that the State Department has formally requested a federal investigation into Hillary Clinton's use of a private email server while she was secretary of State.

“I spoke personally to the State Department Inspector General on Thursday, and he said he never asked the Justice Department to launch a criminal investigation of Secretary Clinton's email usage,” Cummings, the top Democrat on the House Select Committee on Benghazi, said Friday in a statement.

Instead, State Inspector General Steve A. Linick “told me the Intelligence Community IG notified the Justice Department and Congress that they identified classified information in a few emails that were part of the [Freedom of Information Act] review, and that none of those emails had been previously marked as classified.” [The Hill, 7/24/15]

NY Times’ John Harwood: “Justice Dept Official Says ‘Referral’ Related To Hillary Clinton's Email Is NOT For A Criminal Investigation - Contradicting Earlier Reports.”

[Twitter, 7/24/15, 7/24/15]

Inspectors General Release Joint Statement Saying IC Inspector General “Did Not Make A Criminal Referral.” The inspectors general of the Intelligence Community and State Department released a joint statement saying the referral “was to notify security officials that classified information may exist on at least one private server and thumb drive that are not in the government’s possession.” The statement also said the Intelligence Community Inspector General “did not make a criminal referral.” From the July 24 statement:


[Twitter, 7/24/15]

NY Times Forced To Backtrack And Make Two Separate Corrections

NY Times Altered Report To Remove Claim That Clinton Is Target Of Criminal Probe. After publication, the Times changed its report to remove the statement that Clinton is the target of the requested criminal probe, without notification or explanation for the alteration. The headline was changed to “Criminal Inquiry Is Sought In Clinton Email Use." The new report said:

Two inspectors general have asked the Justice Department to open a criminal investigation into whether sensitive government information was mishandled in connection with the personal email account Hillary Rodham Clinton used as secretary of state, senior government officials said Thursday. [NewsDiff.org, 7/23/15, via Media Matters, 7/27/15]

NY Times Originally Denied “Factual Error,” Said It Would Not Issue Correction. The Washington Post's Erik Wemple reported that a Times spokeswoman said, “There was no factual error, so there was no reason for a correction” in the piece. From Wemple’s July 24, 2015, article:  

One of the story's reporters, Michael Schmidt, told Politico, “It was a response to complaints we received from the Clinton camp that we thought were reasonable, and we made them.”

In an e-mail to the Erik Wemple Blog, New York Times spokeswoman Eileen Murphy notes, “As often happens, editors continued to revise this story after initial publication to make it as clear and precise as possible. There was no factual error, so there was no reason for a correction.” [The Washington Post, 7/24/15, via Media Matters7/27/15]

NY Times Subsequently Issued Factual Correction That Clinton Was Not Personally Subject Of Referral. The Times issued a correction to the piece on the afternoon of July 24, 2015, explaining that Clinton was not personally the subject of the referral to investigate, although it did not cite the Justice Department official saying it was not a criminal referral in nature. From the July 25, 2015, correction:

An earlier version of this article and an earlier headline, using information from senior government officials, misstated the nature of the referral to the Justice Department regarding Hillary Clinton's personal email account while she was secretary of state. The referral addressed the potential compromise of classified information in connection with that personal email account. It did not specifically request an investigation into Mrs. Clinton. [The New York Times, 7/25/15, via Media Matters, 7/27/15]

NY Times Issued Second Correction Noting Referral Was Not Criminal. On July 26, 2015, the Times issued a second correction to the piece, noting that the referral was a “security referral,” not a “criminal referral.” However, the correction did not point out that only one inspector general made a referral, not two. From the July 26, 2015, correction:

An article in some editions on Friday about a request to the Justice Department for an investigation regarding Hillary Clinton’s personal email account while she was secretary of state referred incorrectly, using information from senior government officials, to the request. It was a “security referral,” pertaining to possible mishandling of classified information, officials said, not a “criminal referral.” [The New York Times, 7/26/15, via Media Matters7/27/15]

NY Times Public Editor Margaret Sullivan: Article Was A “Mess” And Suffered From “At Least Two Major Journalistic Problems.” Noting the multiple corrections to the original story, Times public editor Margaret Sullivan called it a “mess” in a blog post, saying there were “at least two major journalistic problems” with the piece. From Sullivan’s July 27, 2015, blog post:

There are at least two major journalistic problems here, in my view. Competitive pressure and the desire for a scoop, led to too much speed and not enough caution.

[...]

When you add together the lack of accountability that comes with anonymous sources, along with no ability to examine the referral itself, and then mix in the ever-faster pace of competitive reporting for the web, you've got a mistake waiting to happen. Or, in this case, several mistakes.

Reporting a less sensational version of the story, with a headline that did not include the word “criminal,” and continuing to develop it the next day would have been a wise play. Better yet: Waiting until the next day to publish anything at all.

Losing the story to another news outlet would have been a far, far better outcome than publishing an unfair story and damaging The Times's reputation for accuracy. [The New York Times, 7/27/15, via Media Matters7/27/15]

Daily Beast Walked Back Claims That There Was A Two-Month Gap In Clinton’s Benghazi Emails Released By State Department

Original Daily Beast Article: “Conspicuous Two-Month Gap” In Clinton Benghazi Emails. The Daily Beast published an article headlined “The Missing Hillary Emails No One Can Explain” with the subhead: “There is a two-month gap in Hillary Clinton's emails that coincides with violence in Libya and the employment status of a top Clinton aide, Huma Abedin.” From the July 28 article:

Among the approximately 2,000 emails that former Secretary of State Hillary Clinton has released from her private account, there is a conspicuous two-month gap. There are no emails between Clinton and her State Department staff during May and June 2012, a period of escalating violence in Libya leading up to the September 11 attack on the U.S. consulate in Benghazi that left four Americans dead.

A State Department spokesman told The Daily Beast that for the year 2012, only those emails related to the security of the consulate or to the U.S. diplomatic presence in Libya were made public and turned over to a House committee investigating the fatal Benghazi assault. But if that's true, then neither Clinton nor her staff communicated via email about the escalating dangers in Libya. There were three attacks during that two-month period, including one that targeted the consulate. [The Daily Beast, 7/28/15, via Media Matters7/30/15]

Revised Daily Beast: “Of Course” Email Isn't “Preferred” Way State Department Makes Such Communications. The Daily Beast updated its story to note that “email isn't the only or even the preferred way State Department officials communicate about sensitive issues.” It also changed the subheadline to: “Two very different groups are trying to track down months' worth of Clinton emails. One wants to know about her reaction to Libyan violence; the other, about her aide Huma Abedin.” The first two paragraphs of the story were changed to read (emphasis added):

Among the hundreds of emails released by the State Department from former Secretary of State Hillary Clinton's private account, there is a conspicuous two-month gap. So far, there are no emails between Clinton and her State Department staff during May and June 2012, a period of escalating violence in Libya leading up to the September 11 attack on the U.S. consulate in Benghazi that left four Americans dead.

A State Department spokesman told The Daily Beast that for the year 2012, only those emails related to the security of the consulate or to the U.S. diplomatic presence in Libya were made public and turned over to a House committee investigating the fatal Benghazi assault. But if that's true, then neither Clinton nor her staff communicated via email about the escalating dangers in Libya during those two crucial months. There were three attacks during that two-month period, including one that targeted the consulate. (Of course, email isn't the only or even the preferred way State Department officials communicate about sensitive issues--especially if one of those officials is using a private server ill equipped to handle classified information.) [The Daily Beast, 7/28/15, via Media Matters, 7/30/15]

Original Daily Beast Article: Two-Month Email Gap “Also Coincides” With Clinton Aide Huma Abedin Getting “Special Exemption.” The Daily Beast originally reported that the supposed gap in Clinton emails “also coincides with” aide Huma Abedin getting a “special exemption” to work for both the State Department and Clinton Foundation. From the July 28 article:

That two-month period also coincides with a senior Clinton aide obtaining a special exemption that allowed her to work both as a staff member to the secretary and in a private capacity for Clinton and her husband's foundation. The Associated Press has sued to obtain emails from Clinton's account about the aide, Huma Abedin. [The Daily Beast,7/28/15, via Media Matters, 7/30/15]

Revised Daily Beast Piece: Abedin Emails Wouldn't Be Included In Released Emails To Benghazi Committee, “Which Asked Only For Libya-Related Material.” The Daily Beast updated the story to note that there would be no reason to expect emails about Abedin to be included in the “two-month gap” because the emails released to the Benghazi committee deal only with “Libya-related material” :

That two-month period also coincides with a senior Clinton aide obtaining a special exemption that allowed her to work both as a staff member to the secretary and in a private capacity for Clinton and her husband's foundation. The Associated Press has sued to obtain emails from Clinton's account about the aide, Huma Abedin. So far, the State Department has rebuffed those efforts. Nor, understandably, did Foggy Bottom turn over any emails about Abedin's employment status to the Benghazi Committee, which asked only for Libya-related material. [The Daily Beast, 7/28/15, via Media Matters7/30/15]

The Daily Beast’s Update Noted Additions To Story Related To Clinton's Emails And Abedin. The update reads:

UPDATE: This story has been modified to make clear that the State Department -- not the former Secretary of State herself -- is releasing Clinton's emails. The number of emails has been changed from “approximately 2,000” to “hundreds,” to more accurately reflect how many messages from 2012 have been released. The story now also notes that email is hardly the only way that State Department officials communicate. And the piece has been clarified to underscore that emails about Huma Abedin's employment status would not necessarily be in the tranche of messages released to the Benghazi Committee. [The Daily Beast, 7/28/15, via Media Matters, 7/30/15]

There Was No Gap, As Clinton Staffers Explained That Email Wasn’t Clinton’s Preferred Or Exclusive Method Of Communication

Clinton Aide: She Rarely Used Email -- It Wasn't A Good Way To Get Her Attention. As the Daily Beast’s update made clear, the reason there are no emails about “escalating dangers in Libya during those crucial months” may be because email wasn't the method used to discuss such information. Bloomberg Politics reported on March 3, 2015, that a former State Department official said that he generally communicated with Clinton in person or by phone and that email “wasn't the best way to get Clinton's attention.” From the March 3, 2015, Bloomberg article:

One former State Department official who worked for Clinton told Bloomberg Politics he did not find the practice unusual, given how little Clinton actually used e-mail. Most of the time, the former official said, his interactions with Clinton and across the department were either face to face or over phone.

When he did get an e-mail from Clinton, the former official said, it was generally a directive and his response usually came on paper or in person the next time they saw each other. When Clinton was traveling, the former official said, he generally conveyed messages to Clinton through a core group of four senior aides-Cheryl Mills, Jake Sullivan, Huma Abedin, and Philippe Reines.

E-mail, the former official added, also wasn't the best way to get Clinton's attention, since she couldn't bring her BlackBerry into diplomatic meetings at home or abroad, or into the White House situation room, because of security reasons. Even when sitting at a computer, an official e-mail address would have been a clunky way for Clinton to communicate, since many aides would have had to been copied and responses would have piled up quickly, filling her inbox. [Bloomberg Politics, 3/3/15, via Media Matters, 7/30/15]

Clinton Campaign: She Consumed Classified Information Through “Separate, Closed” State System And Via “Hard Copy.” Another possible explanation for the “gap” is that the communications detailing the Libyan situation were classified. According to the Clinton campaign, such information would be consumed through a separate State Department system or in hard copy:

Clinton only used her account for unclassified email. A separate, closed system was used by the State Department for the purpose of handling classified communications, which was designed to prevent such information from being transmitted anywhere other than within that system.

[...]

The Secretary's office was located in a secure area. Classified information was viewed in hard copy by Clinton while in the office. While on travel, the State Department had rigorous protocols for her and traveling staff to receive and transmit information of all types. [HillaryClinton.com, accessed 7/29/15, via Media Matters, 7/30/15]

Right-Wing Media Repeatedly Compared Clinton’s Email Use To General David Petraeus' Illegal Mishandling Of Top-Secret Information

Wash. Examiner's Susan Ferrechio: “The Differences Are Not All That Great” Between Clinton And David Petraeus. Susan Ferrechio of the Washington Examiner compared Clinton's emails to David Petraeus' criminal case, while Fox host Gretchen Carlson claimed there was a “double standard.” From the July 31, 2015, edition of Fox News’ The Real Story with Gretchen Carlson:

GRETCHEN CARLSON (HOST): Critics are now comparing Clinton to David Petraeus. There has been no raids of Clinton's house. Is there a double standard here?

[...]

SUSAN FERRECHIO: But it's really hard not to just see the stark comparison here. Everybody is bringing up the General Petraeus case. He was prosecuted for storing classified material in his home. He was criminally charged and convicted, and he had to lose his job as head of the CIA, and he ended up on probation and paying a hefty fine. Yet, if you look at what Mrs. Clinton is doing, the differences are not all that great between the two parties, although he also did give classified information to Paula Broadwell, his biographer and his mistress. [Fox News, The Real Story with Gretchen Carlson, 7/31/15, via Media Matters, 8/4/15]

Fox Correspondent: There's A “Double Standard” Between Treatment Of David Petraeus And Clinton. Fox chief intelligence correspondent Catherine Herridge claimed that the lack of a criminal investigation into Clinton's email use “strongly suggests a double standard” between Clinton and Petraeus. From the July 31, 2015, edition of Fox News’ The Kelly File:

CATHERINE HERRIDGE: If you do a search of the more than 1,300 documents dropped today, using a code for classified information, you'll find 37. This, after the intelligence community's watchdog concluded there are potentially hundreds of classified documents on Clinton's personal server.

[...]

Court documents filed in the prosecution of former CIA Director David Petraeus strongly suggests a double standard. The retired general was prosecuted for the unauthorized removal, sharing and storage of classified information held at his home, quote “The FBI executed a court-authorized search warrant at the Petraeus residence and seized the black books from an unlocked drawer in the first-floor study of the Petraeus residence.” [Fox News, The Kelly File, 7/31/15, via Media Matters8/4/15]

But The Comparison Is False Because General David Petraeus Knowingly And Intentionally Mishandled Classified Information, Unlike Clinton

David Petraeus Admitted To Giving Biographer “Highly Classified” Black Books. The New York Times reported that Petraeus reportedly told his biographer Paula Broadwell that some of the information contained in the black books detailing activities on the war in Afghanistan he was giving her was “highly classified.” From an April 23, 2015, article:

As part of the plea agreement, Mr. Petraeus admitted that he gave his lover, Paula Broadwell, who was writing a biography about him, black notebooks that contained sensitive information about official meetings, war strategy and intelligence capabilities, as well as the names of covert officers.

According to court documents, he discussed the black books during an interview that Ms. Broadwell taped with Mr. Petraeus while she was working on the biography, telling her, “They are highly classified, some of them.”

Three weeks later, he gave her the notebooks. [The New York Times, 4/23/15, via Media Matters, 8/4/15]

David Petraeus Admitted To Delivering Classified Documents Containing Code Words To Unauthorized Private Residence. The factual basis that accompanied the plea agreement in Petraeus' case, which Petraeus acknowledged contains the facts as they occurred, laid out how Petraeus handed over to Broadwell classified books containing “code word stuff” while she was staying at a private home in Washington, D.C., that was not an approved location for the storage of classified information. From the details of Petraeus’ plea agreement:

On or about August 4, 2011, after defendant DAVID HOWELL PETRAEUS returned permanently to the United States from Afghanistan, during a conversation, recorded by his biographer, defendant DAVID HOWELL PETRAEUS stated that the Black Books were “highly classified” and contained “code word” information:

Biographer: By the way, where are your black books? We never went through,..

PETRAEUS: They're in a rucksack up there somewhere.

Biographer: Okay .. . You avoiding that? You gonna look through 'em first?

PETRAEUS: Umm, well, they're really - I mean they are highly classified, some of them. They don't have it on it, but I mean there's code word stuff in there.

On or about August 27, 2011, defendant DAVID HOWELL PETRAEUS sent an e-mail to his biographer in which he agreed to provide the Black Books to his biographer.

On or about August 28, 2011, defendant DAVID HOWELL PETRAEUS delivered the Black Books to a private residence in Washington, D.C. (the “DC Private Residence” ), where his biographer was staying during a week-long trip to Washington, D.C. The DC Private Residence was not approved for the storage of classified information. [U.S. v. Petraeus, Factual Basis in Support of Plea Agreement, 3/3/15, via Media Matters8/4/15]

Petraeus Pleaded Guilty To Violating 18 U.S.C. § 1924, “Unlawfully And Knowingly” Moving Classified Materials “With Intent To Retain Such Documents ... At Unauthorized Locations.” Petraeus pleaded guilty to one count of violating Title 18, United States Code, Section 1924. From a filing by federal prosecutors:

Between in or about August 2011 and on or about April 5, 2013, defendant DAVID HOWELL PETRAEUS, being an employee of the United States, and by virtue of his employment, became possessed of documents and materials containing classified information of the United States, and did unlawfully and knowingly remove such documents and materials without authority and with the intent to retain such documents and materials at unauthorized locations, aware that these locations were unauthorized for the storage and retention of such classified documents and materials;

All in violation of Title 18, United States Code, Section 1924. [U.S. v. Petraeus, Bill of Information, 3/3/15, via Media Matters, 8/4/15]

David Petraeus Found To Have “Unlawfully And Knowingly” Removed Classified Documents. Petraeus was found to have “unlawfully and knowingly” removed classified documents “without authority” before moving them to “unauthorized” locations:

Between in or about August 2011, and on or about April 5, 2013, defendant DAVID HOWELL PETRAEUS, being an employee of the United States, and by virtue of his employment, became possessed of documents and materials containing classified information of the United States, and did unlawfully and knowingly remove such documents and materials without authority and thereafter intentionally retained such documents and materials at the DC Private Residence and the PETRAEUS Residence, aware that these locations were unauthorized for the storage and retention of such classified documents and materials. [U.S. v. Petraeus, Factual Basis in Support of Plea Agreement, 3/3/15, via Media Matters, 8/4/15]

Experts Have Repeatedly Dismissed The Comparison Between Clinton’s Email Use And Petraeus’ Mishandling Of Classified Information

Government Secrecy Expert: “There's No Way” To Have Case Against Clinton If She Didn't Knowingly Misuse Classified Information. William Jeffress, an attorney who has handled government secrecy cases, told Time magazine that if Clinton didn’t knowingly mishandle classified information, “there's no way in the world [prosecutors] could ever make a case" against her. From a July 29, 2015, Time magazine article :

Legally, the question is pretty clear-cut. If Clinton knowingly used her private server to handle classified information she could have a problem. But if she didn't know the material was classified when she sent or received it she's safe.

[...]

Clinton has explicitly and repeatedly said she didn't knowingly send or receive any classified information. “The facts are pretty clear,” she said last weekend in Iowa, “I did not send nor receive anything that was classified at the time.” Intelligence Community Inspector General I. Charles McCullough III, disagrees, saying some of the material was in fact classified at the time it was sent. But in his letter last week to Congressional intelligence committee leaders, McCullough reported that, “None of the emails we reviewed had classification or dissemination markings.” And there has been no indication Clinton knew she was sending and receiving anything classified.

The public doesn't yet know the content of the classified emails, and the State Department and the inspectors general have tens of thousands still to review. If evidence emerges that Clinton knew she was handling secrets on her private server, “She could have a problem,” says William Jeffress, a leading criminal trial lawyer at Baker Botts who has represented government officials in secrecy cases. Barring that, says Jeffress, “there's no way in the world [prosecutors] could ever make a case” against her. [Time magazine, 7/29/15, via Media Matters, 8/4/15]

National Security Law Expert: “It Isn't Enough For Hillary To Have Sent Classified Information Over A Private Server. She Must Have Known It Was Classified.” Syracuse University Law professor Nathan Sales, a national security expert, explained that to be legally at fault, Clinton must have “knowingly” mishandled classified information, a standard her conduct does not reach. From an August 1, 2015, National Review article:

The federal statute on mishandling classified information makes it a crime to “knowingly remove[] [classified] documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location.”

[...]

The e-mails may not have had the standard markings indicating the presence of classified information - confidential, top secret, and so on. But they apparently did contain information derived from other materials that were so marked.

The e-mails were, in other words, derivatively classified. This doesn't necessarily mean that Secretary Clinton broke the law. The key word in the statute is “knowingly.” It isn't enough for Hillary to have sent classified information over a private server. She must have known it was classified. (This is what did in General Petraeus -- he admitted knowing that his black books contained classified information.) [National Review, 8/1/15, via Media Matters, 8/4/15]

Prosecutor Who Led Conviction Of General David Petraeus: Comparison With Hillary Clinton's Email Use “Has No Merit.” Anne M. Tomkins, the former U.S. attorney who oversaw the prosecution of Petraeus, wrote in an August 30, 2015, USA Today opinion piece that the comparison between Clinton and Petraeus “has no merit" because “Petraeus knowingly engaged in unlawful conduct” and “Clinton is not being investigated for knowingly sending or receiving classified materials improperly.” From the August 30 piece:

Both the law and his oath required Petraeus to mark these books as “top secret” and to store them in a Secured Compartmented Information Facility. He did neither.

Rather, Petraeus allowed his biographer to take possession of the journals in order to use them as source material for his biography.

Importantly, Petraeus was well aware of the classified contents in his journals, saying to his biographer, Paula Broadwell on tape, “I mean, they are highly classified, some of them. They don't have it on it, but I mean there's code word stuff in there.”

When questioned by the FBI, Petraeus lied to agents in responding that he had neither improperly stored nor improperly provided classified information to his biographer. As Mukasey also highlighted, the key element is that Petraeus' conduct was done “knowingly.” That is, when he stored his journals containing “highly classified” information at his home, he did so knowingly. Petraeus knew at that time that there was classified information in the journals, and he knew they were stored improperly.

In sharp contrast, Clinton is not being investigated for knowingly sending or receiving classified materials improperly. [USA Today, 8/30/15, via Media Matters, 8/31/15]

August 2015: Media Misinformed On Classification Of Clinton’s Emails

Fox Argued Emails Weren't Marked As “Classified” Because Clinton Used A Private Server Instead Of State Dept. Email

Fox's Steve Doocy: Emails “Were Never Classified” Because Clinton Used A Private Server Rather Than The State Department's Email System. Fox co-host Steve Doocy blamed the lack of classification on Clinton's use of a private server instead of “the State Department email system,” arguing the emails “were never classified because she never submitted it.” From the August 12, 2015, edition of Fox News’ Fox & Friends:

STEVE DOOCY (CO-HOST): The problem here is the fact that she didn't want her bosses at the White House to know what she was writing about, it is perceived.

ANDREW NAPOLITANO: She also didn't want her colleagues in the State Department to know.

DOOCY: Right. So she had her own server, which is, you know, against protocol. Her spokespeople, and she herself has said, you know, it wasn't classified at the time. But that ignores how the process works. The reason you use the State Department email system is so that it is classif - it is vetted before you hit 'send.'

NAPOLITANO: She is probably going to argue that because the phrase, boom, 'top secret' was not stamped on each document, it wasn't top secret. That's not what the law says. Before every person in the federal government, from the president to a file clerk, gets a national security clearance, they have a 30 minute in-person interview with an FBI agent who explains, if there's doubt about whether it's classified or not, it's classified.

DOOCY: Let me just add this one thing. It was never classified because she never submitted it. [Fox News, Fox & Friends, 8/12/15, via Media Matters, 8/12/15]

Emails Originated In State Dept. System And Questions About Retroactive Classification Would Have Occurred Regardless Of Clinton's Server Use

Emails Originated With State Department Employees And Were Forwarded To Clinton. The State Department's statement on the retroactive “top secret” designation made clear that the emails at issue originated with State Department employees, not Clinton herself. From the August 11 statement:

The following is attributable to Spokesperson John Kirby:

"The State Department takes seriously its obligations to protect sensitive information, holding its employees to a high standard of compliance with regulations and procedures.

"The Intelligence Community has recommended that portions of two of the four emails identified by the Intelligence Community's Inspector General should be upgraded to the Top Secret level. Department employees circulated these emails on unclassified systems in 2009 and 2011 and ultimately some were forwarded to Secretary Clinton. They were not marked as classified.

“These emails have not been released to the public. While we work with the Director of National Intelligence to resolve whether, in fact, this material is actually classified, we are taking steps to ensure the information is protected and stored appropriately.” [Twitter.com, 8/11/15, via Media Matters, 8/12/15]

Clinton Campaign: Emails Originated From “Unclassified .Gov Email System.” A fact sheet released by Clinton’s campaign explains that the emails at issue originated on “the unclassified .gov email system” :

Would this issue not have arisen if she used a state.gov email address?

Even if Clinton's emails had been on a government email address and government device, these questions would be raised prior to public release.

While State Department's review of her 55,000 emails brought the issue to the Inspectors Generals' attentions, the four emails were on the unclassified .gov email system. They were not on the separate, closed system used by State Department for handling classified communications. [hillaryclinton.com, “Updated: The Facts About Hillary Clinton's Emails,” accessed 8/12/15, via Media Matters, 8/12/15]

Vox: Whether Or Not Emails Should Have Been Marked Classified Is Part Of “Bureaucratic Turf War.” Vox pointed out how the intra-agency disagreement over whether the emails were appropriately categorized “is a bureaucratic fight about how the State Department has handled the emails, not about Hillary Clinton.” From a July 28, 2015, Vox article (emphasis added):

The State Department has been ordered by a federal judge to make public the 55,000 pages of emails Clinton turned over to the agency. So the State Department has Freedom of Information Act experts sifting through the documents to make sure that no information will be released that is either classified or sensitive (meaning not technically classified but also not covering material that the government doesn't want in the public domain).

This has caused a bureaucratic turf war between the department and the intelligence community, which believes at least one email that's already been released contains classified information and that hundreds of others in the full set may also have material that's not ready for public consumption. For a couple of months, the inspectors general of the State Department and the combined intelligence community agencies have been battling Patrick Kennedy, the lead State Department official, over who has access to the documents and the authority to release or withhold them.

Now, according to the Times and other publications, the IG team is asking the Justice Department to get involved in reviewing whether State has mishandled the emails. If Clinton was sending information that was, or should have been, classified -- and knew that it was, or should have been, classified -- that's a problem. But no one has accused her of that so far. Given the anodyne nature of what she sent in the emails we've already seen, it's entirely possible, perhaps even likely, that any sensitive information was sent to Clinton, not by her (though it's not clear whether forwarding such emails would constitute a legal issue for her). [Vox, 7/28/15, via Media Matters, 8/12/15]

NY Times’ John Harwood: “OVERLOOKED: Both [Republican] & [Democratic] Hill Staff Say Legal Issue [Regarding] Classified Info In HRC Emails Has NOTHING WHATSOEVER To Do [With Use] Of Private Server.”


[Twitter, 8/15/15, 8/15/15, via Media Matters, 8/18/15]

Fox Speculated Clinton Herself Is Under A Criminal Investigation By The FBI

Fox's Chris Stirewalt: Clinton Might Be “The Subject Of A Federal Criminal Investigation.” On the August 12, 2015, edition of Fox News' America's Newsroom, digital editor Chris Stirewalt claimed that Clinton might become “the first major party nominee that is the subject of a federal criminal investigation.” [Fox News, America's Newsroom, 8/12/15, via Media Matters, 8/12/15]

Clinton Herself Was Not The Target Of The FBI’s Probe

Wash. Post: Officials Say Clinton “Is Not A Target” Of FBI Probe. The Washington Post reported that government officials said Clinton is “not a target” of the FBI's investigation. From an August 11 article:

Hillary Rodham Clinton's attorney has agreed to provide the FBI with the private server that housed her e-mail during her four years as secretary of state, Clinton's presidential campaign said Tuesday.

[...]

The inquiry by the FBI is considered preliminary and appears to be focused on ensuring the proper handling of classified material. Officials have said that Clinton, the Democratic presidential front-runner, is not a target.

The FBI's efforts have included contacting the Denver-based technology firm that helped manage the Clintons' unusual private ­e-mail system. [The Washington Post, 8/11/15, via Media Matters, 8/12/15]

Fox Guest Claimed FBI Grabbed Clinton’s Server

Jay Sekulow: The FBI “Grabbed Control Of The Server.” On the August 27, 2015, edition of Fox News' America's Newsroom, the American Center for Law and Justices' Jay Sekulow and host Gregg Jarrett discussed Clinton's recent comments about her emails. During the segment Sekulow claimed that the FBI had “grabbed control of the server.” [Fox News, America's Newsroom, 8/27/15, via Media Matters, 8/27/15]

Clinton’s Server Was Voluntarily Handed Over Server To The FBI

ABC News: “The Server Was Handed Over Voluntarily.” Hillary Clinton's team arranged for the technology company Platte River Networks, which managed her email system previously, to give her private email server to the FBI. ABC News reported that the server “was handed over voluntarily” and was transferred “with no subpoena.” From an August 13, 2015, article:

Barbara Wells, a lawyer for Platte River Networks, the technology company that has managed Clinton's email server since 2013, said the company turned the server over to the FBI Wednesday afternoon at a New Jersey facility.

She said the server was handed over voluntarily, under an agreement between Platte River and Clinton's presidential campaign, with no subpoena. [ABC News, 8/13/15, via Media Matters, 8/27/15]

Fox Guest Claims Clinton's Lawyer Lacked Security Clearance To Handle Emails

Fox Guest: Clinton's Lawyer Lacked Security Clearance To Handle Emails. Jay Sekulow claimed on the August 27 edition of Fox News' America's Newsroom that Clinton “handed over the thumb drive of the emails to her lawyer who did not have security clearance.” [Fox News, America's Newsroom, 8/27/15]

Clinton's Lawyer Has “Top Secret” Security Clearance

Politico: Clinton's Lawyer “Had 'Top Secret' Clearance.” Politico reported that Hillary Clinton's lawyer, David Kendall, had “top secret' security clearance granted by the State Department” so that he could review information relating to the House Benghazi investigation, and that those clearances remain active. From an August 25 article:

In a new letter to Grassley, Kendall says he got a Top Secret/Sensitive Compartmented Information clearance from the Justice Department in November 2013 and a Top Secret clearance from the State Department about a year later. Kendall says his Williams & Connolly law partner, Katherine Turner, also got a Top Secret clearance from State in December 2014.

“These State Department security clearances remain active. We obtained them in order to be able to review documents at the Department of State, to assist former Secretary Clinton in preparing to testify before the House Select Committee on Benghazi,” Kendall wrote on Monday. [Politico, 8/25/15]

Fox Pushed Conspiracy That Clinton’s Aides Stripped Classification Markings From Her Emails

Fox’s Megyn Kelly: An Unnamed State Source Claimed A “Clinton Insider May Have Removed 'Top Secret' Markings.” Fox anchor Megyn Kelly claimed that an “unnamed State Department official” suggested that “a Clinton insider must have been the one to actively strip classification marking off” the emails, adding that would be “a felony, potentially punishable by serious prison time.” From the August 12 edition of Fox News’ The Kelly File:

MEGYN KELLY (HOST): Big news in Hillary Clinton email scandal. Just before we came to air tonight, an unnamed State Department official telling Fox News that some of the nation's most sensitive, top secret information was communicated on Mrs. Clinton's server. It was highly classified at the time, contradicting one of the key arguments in team Clinton's defense. Also, another big development, this State Department source suggesting to Fox that a Clinton insider must have been the one to actively strip the classification markings off of the information before sending it, which is a felony, potentially punishable by serious prison time. Judge Andrew Napolitano is our Fox News senior judicial analyst, and Judge, I just want to clear it up for the viewers -- so this State Department official is saying, we now know at least one email was top, top, top, top secret, that the State Department doesn't have the capability to mark a document that way. So it had to come to State from someplace else in the Intelligence Community.

[...]

KELLY: Why are they so sure that happened? Why couldn't it be someone in the Intelligence Community screwed up, and didn't mark the documents classified.  

ANDREW NAPOLITANO: Possible, but extremely unlikely. The reason it is unlikely is because the Intelligence Community knows their members can go to jail for simple negligence by exposing a top secret document. [Fox News, The Kelly File, 8/12/15, via Media Matters, 8/14/15]

Fox & Friends’ Brian Kilmeade And Steve Doocy: “Logic Would Tell You” A Clinton Insider May Have Illegally Removed The Markings. Fox co-host Brian Kilmeade suggested that “logic would tell you” that only a Clinton insider would put “their career on the line” for Clinton, which led co-host Steve Doocy to speculate that it was “probably someone in [Clinton's] inner circle" who “stripped off the 'top secret' from the documents.” From the August 13 edition of Fox News’ Fox & Friends:

STEVE DOOCY (CO-HOST): We know that Hillary Clinton has turned over to the FBI her home server which was unsecured and that's really a problem because as it turns out she had top secret documents on there. But now we're learning from a cover memo from the Intel community's Inspector General that apparently classified and secret -- “top secret” documents came into the State Department and were headed for Hillary Clinton but somebody at the Department of State, and it is presumed not to be a career employee of the state department --

BRIAN KILMEADE (CO-HOST): Because logic would tell you why would someone put their career on the line for somebody that is going to be termed out.

DOOCY: Exactly, so probably somebody in her inner circle, somebody stripped off the top secret from the documents and then sent it on her way. So that is a problem because Judge Napolitano says that is two felonies. It's altering a “top secret” document and it's placing top secret documents in unsafe places. [Fox News, Fox & Friends, 8/13/15, via Media Matters, 8/14/15]

Fox’s Peter Doocy: “We Now Know ... Someone On [Clinton's] Staff Or Someone From Her Inner Circle Must Have Altered The Messages.” Fox reporter Peter Doocy asserted that “we now know” that “someone on [Clinton's] staff or someone from her inner circle must have altered the messages” to remove the classification markings. From the August 13 edition of Fox News’ America's Newsroom:

PETER DOOCY: We now know at some point between the time the State Department first received these top secret files and the time those files were forwarded to Secretary Clinton's home server, someone on her staff or someone from her inner circle must have altered the messages so they didn't say top secret right on the top. A State Department official tells us the messages would have been marked classified “top secret” by someone at an intel agency, because they contained satellite imagery and signals intelligence and that's not stuff that diplomats can go out and get themselves. But a diplomat or a member of the secretary's staff could have taken the “top secret” markings off if things went the way the State Department continues to say they did. [Fox News, America's Newsroom, 8/13/15, via Media Matters, 8/14/15]

But The State Department Said There Was No Evidence Classification Markers Were “Stripped” From Emails

State Dept. Spokesperson: “No Indications” That Classification Markings Were “Stripped” From Emails. State Department spokesman Adm. John Kirby said that the State Department had “no indications” that classification markings were stripped from the emails. From an August 13 briefing :

QUESTION: John, thank you. I have two quick questions on Secretary Clinton's server. Has the State Department been able to determine whether each of the four classified emails sent to Secretary Clinton's server originated within the State Department or whether they originated within another agency?

MR KIRBY: I don't have any updates for you in terms of original sourcing on those emails.

QUESTION: And secondly, has the State Department been able to determine whether any classification markings may have been stripped from any of those documents from anyone within the State Department?

MR KIRBY: We have no indications that there were any - that there was at all any stripping of classification markings on these. [U.S. Department of State, 8/13/15, via Media Matters, 8/14/15]

Right-Wing Media Claimed Clinton’s Server Was Kept In A Denver Bathroom Closet

Daily Mail: Platte River IT Company Hired By Clinton “Kept Its Server In The Bathroom Closet.” The Daily Mail claimed that Platte River Networks, the Denver IT firm Hillary Clinton hired to “maintain her private email account,” kept the server “in a bathroom closet.” The article quoted Tom Welch, the co-founder of Platte River, who claimed that the servers were kept in a “bathroom connected to the master closet.” From an August 18 article:

The IT company Hillary Clinton chose to maintain her private email account was run from a loft apartment and its servers were housed in the bathroom closet, Daily Mail Online can reveal.

[...]

Founded in 2002 by entrepreneurs Treve Suazo, Brent Allshouse and Tom Welch, Platte River Networks worked out of a 1,858 square feet loft apartment in downtown Denver up until this earlier year when they moved to a much bigger 12,000 sq.ft space.

[...]

Clinton's 'homebrew' computer system housed her emails while she was Secretary of State between 2009 and 2013. Platte River Networks provided its services in mid-2013 according to Barbara Wells, the company's lawyer.

[...]

Welch confirmed his former company kept its servers in the bathroom closet.

He said: 'The space that we had our office was essentially designed as a residential unit... the bathroom connected to the master closet and that's what we retrofitted as a server room.'

He claimed the set up was secure, adding: 'Our internal network was extremely secure. At the time Inca St was a relatively obscure location, second floor office. The technology we had in place was pretty good. The security we had in place at the office was really good to protect our well-being.' [Daily Mail, 8/18/15, via Media Matters, 8/20/15]

MSNBC’s Joe Scarborough: Clinton “Can't Answer Basic Questions” Like “Why She Got A Server In A Denver Condo Loft Bathroom.” MSNBC co-host Joe Scarborough used the Daily Mail's report to claim that Hillary Clinton's campaign was not able to answer “basic questions” about her server, including why it was left in a bathroom. From the August 20 edition of MSNBC’s Morning Joe:

JOE SCARBOROUGH (CO-HOST): They can't answer basic questions because there are no good answers to those questions. There are no good answers to the question of why she got a server in a Denver condo loft bathroom and why America's national security [MSNBC, Morning Joe, 8/20/15, via Media Matters, 8/20/15]

NY Post: Clinton's Server Was “Run Out Of An Old Bathroom Closet.” The New York Post claimed that “Clinton's email servers were” maintained in “an old bathroom closet.” From an August 18 article:

Hillary Clinton's email servers were maintained by a mom-and-pop outfit -- run out of an old bathroom closet in a downtown Denver loft, according to a published report on Tuesday.

While Platte River Networks has ties to Colorado Gov. John Hickenlooper, it wasn't immediately clearly how the company got hooked up with the former secretary of state and Democratic presidential front-runner, the Daily Mail said. [The New York Post, 8/18/15, via Media Matters, 8/20/15]

Clinton’s Server Was Never Stored In A Bathroom, Or Even In Denver

Denver Post: None Of Clinton's Data Was Ever Stored In A Denver Bathroom. The Denver Post reported that Platte River Networks had never stored the server holding Clinton's emails in Denver. The Post explained that the server had been moved to “a New Jersey data center” in accordance with “industry best practices” and had never been “in any bathrooms.” From an August 19 article:

“There never was, at any time, data belonging to the Clintons stored in Denver. Ever,” said Dovetail Solutions CEO [and Platte River Spokesman] Andy Boian, who added that Clinton's server was always in a New Jersey data center. “We do not store data in any bathrooms.”

[...]

“We were literally hired in June 2013,” Boian said, “and because we use industry best practices, we had (Clinton's) server moved to a data center in New Jersey. It remained in that spot until last week,” when the FBI picked it up Aug. 12.

Platte River also is not in possession of any Clinton e-mail backups, he said.

“The role of Platte River Networks was to upgrade, secure and manage the e-mail server for both the Clintons and their staff beginning June 2013. Platte River Networks is not under investigation. We were never under investigation. And we will fully comply with the FBI,” he said. [The Denver Post, 8/19/15, via Media Matters, 8/20/15]

Fox Dubiously Scandalized Standard Practice Of Clinton Aides’ BlackBerrys Being Reset

State Dept.: Clinton Aides' Government-Issued BlackBerrys Were Reset After Clinton Left Agency. The State Department responded to a lawsuit from the conservative group Judicial Watch with information about Clinton aides Huma Abedin and Cheryl Mills' government-issued BlackBerrys used while Clinton was secretary of state, noting the BlackBerrys issued to them were likely destroyed or sold. From an August 19 Politico article:

BlackBerry devices the State Department issued to former Hillary Clinton aides Cheryl Mills and Huma Abedin have likely been destroyed or sold off as surplus, a State official said in a court filing Wednesday.

The secretary of state's information technology office “believes that Ms. Mills and Ms. Abedin were each issued BlackBerry devices,” State Executive Secretary Joseph Macmanus wrote in a declaration submitted to a federal court in Washington (and posted here). The office, referred to as S/ES-IRM in agency parlance, “has not located any such device at the department” and “standard procedure upon return of such devices is to perform a factory reset (which removes any user settings or configurations) and then to reissue the device to another employee, to destroy it, or to excess it,” he added.

“Because the devices issued to Ms. Mills and Ms. Abedin would have been outdated models, in accordance with standard operating procedures those devices would have been destroyed or excessed. As stated above, the state.gov email accounts themselves are generally housed on the Department's servers," Macmanus said. [Politico, 8/19/15, via Media Matters, 8/20/15]

Fox’s Brian Kilmeade: Clinton Aides “Wiped [BlackBerrys] Clean” Before Turning Them In, “And Nobody Now Knows Where They Are.” Fox co-host Brian Kilmeade claimed Abedin and Mills “wiped [their BlackBerrys] clean first, and nobody now knows where they are,” while co-host Steve Doocy added, “they can't find them. Have they been wiped clean? Don't know.” From the August 20 edition of Fox News' Fox & Friends:

BRIAN KILMEADE (CO-HOST): So there's another thing we'd like to find out is -- Actually what happened during her four years at the State Department. To do that, you have to have people on the record, for example people who used private servers, who used government equipment like BlackBerrys, which were once cutting edge when President Obama was taking office, now they're looked at as antiquated. So it turns out that Huma had a BlackBerry given to her. And so did Cheryl Mills. She had a BlackBerry. They handed them in like they were supposed to, and wiped them clean first, and nobody now knows where they are.

STEVE DOOCY (CO-HOST): Yeah, they can't find them. Have they been wiped clean? Don't know. They just aren't there. And Hillary Clinton, as it turns out, you didn't know, you've seen all those pictures of her where she's secretary of state and she's on a BlackBerry, or she's on an iPhone. As it turns out, whatever -- Nobody knows where those came from. Because the Department of State did not issue her any of those. So those are completely unsecured. [Fox News, Fox & Friends, 8/20/15,via Media Matters, 8/20/15]

Fox’s Kristin Fisher: Clinton Aides' BlackBerrys Were “Likely Destroyed.” Fox host Martha MacCallum and correspondent Kristin Fisher hyped news that the aides' BlackBerrys have “likely already been destroyed.” From the August 20 edition of Fox News' America's Newsroom:

MARTHA MACCALLUM (HOST): There are new reports that the presidential candidate wiped her server clean before heading out on the campaign trail. We're also learning that her BlackBerry was not government-issue, and the ones that were, for her aides Cheryl Mills and Huma Abedin, were likely destroyed.

[...]

KRISTIN FISHER: What [Judicial Watch has] done is, they've filed a Freedom of Information Act request to get records from that same Clinton aide, Huma Abedin. But we now know according to a State Department official, that her BlackBerry has also likely already been destroyed. [Fox News, America's Newsroom, 8/20/15, via Media Matters, 8/20/15]

It's Standard Procedure For State Department To Reset Or Wipe Clean Devices After Use

State Department Executive Secretary: BlackBerrys Were Reset “In Accordance With Standard Operating Procedures.” State Department executive secretary Joseph E. Macmanus, wrote in a statement that Abedin and Mills turned in their State Department-issued BlackBerrys before leaving their positions with the Department, and those devices were then reset or wiped clean “in accordance with standard operating procedures” before giving them to someone else for reuse. From an August 19 CNN article:

BlackBerry phones were issued to Abedin and Mills, he said, but those devises would have been cleared through a factory reset once they were returned to the department.

“Because the devices issued to Ms. Mills and Ms. Abedin would have been outdated models,” he said, “in accordance with standard operating procedures those devices would have been destroyed or excessed.” [CNN, 8/19/15], Media Matters, 8/20/15]

State Department Spokesman: BlackBerrys Were Returned To State Department. State Department Spokesman John Kirby also confirmed that Abedin and Mills returned their BlackBerrys to the State Department upon leaving office. From an August 19 The Hill article:

State Department spokesman John Kirby confirmed later on Wednesday afternoon that the two former officials' devices were returned to the department after they left office.

“They belong to the United States government, and when you leave an agency you just turn it in,” Kirby said. "So yes, they were turned in. Where they are now I couldn't begin to tell you.

“It's also likely, because this was a while ago, that those devices may have been destroyed,” he added. “I don't have the records of it because they were old and outmoded and often times we purchase new devices” in those circumstances. [The Hill, 8/19/15, via Media Matters, 8/20/15]

Right-Wing Media Pushed False Comparison Of Clinton’s Email Use To Former CIA Director’s Illegal Mishandling Of Top-Secret Information

National Review Likens Clinton's Email Use To Deutch's Access Of “Classified Material On Unsecured Home Computers.” National Review likened Clinton's email use to former CIA Director John Deutch’s mishandling of classified information, writing “Perhaps [Clinton has] forgotten” the “presidential pardon to former CIA director John Deutch” for “keeping classified material on unsecured home computers.” From the August 21 article:

Former secretary of state Hillary Clinton insists she did nothing wrong by running all of her government communications, including classified material, through her unsecured, home-brewed computer server. Perhaps she's forgotten one of her husband's final acts in the Oval Office: issuing a presidential pardon to former CIA director John Deutch.

Deutch's offense? Keeping classified material on unsecured home computers. [National Review, 8/21/15, via Media Matters, 9/2/15]

Fox’s Marc Thiessen: Deutch Case Represents An “Ominous Precedent For Hillary Clinton.” Washington Post columnist and Fox News contributor Marc Thiessen wrote that Deutch's case represents an “ominous precedent for Hillary Clinton,” asserting, “The parallels between the Deutch and Clinton cases suggest that come January 2017, instead of planning her presidential transition, Clinton may find herself lobbying for a last-minute pardon of her own.” From the August 24 Washington Post column:

Former CIA director John Deutch was also found to have stored classified documents -- including top-secret intelligence -- on computers in his homes in Bethesda and Belmont, Mass., leading to an investigation by the CIA inspector general and a criminal investigation by the Justice Department. Deutch was stripped of his security clearance and ended up reaching a plea agreement admitting to his crimes -- but was saved by a last-minute pardon from none other than . . . President Bill Clinton.

The parallels between the Deutch and Clinton cases suggest that come January 2017, instead of planning her presidential transition, Clinton may find herself lobbying for a last-minute pardon of her own.

[...]

Another parallel with Clinton: The inspector general found that Deutch had used the same unclassified computers to process both classified information and conduct personal business, which made the “classified information residing on Deutch's computers . . . vulnerable to possible electronic access and exploitation.” [The Washington Post, 8/24/15, via Media Matters, 9/2/15]

Fox's Dana Perino Likens Clinton To Deutch Because “He Had Classified Information On His Home Server.” Fox co-host Dana Perino compared Clinton to Deutch, saying, “Bill Clinton, as president, had to actually pardon John Deutch from the CIA. Why? Because he had classified information on his home server.” From the August 21 edition of Fox News' The Five,

DANA PERINO (CO-HOST): But why would her husband -- Jedediah, Bill Clinton, as president, had to actually pardon John Deutch from the CIA. Why? Because he had classified information on his home server.

JEDEDIAH BILA (CO-HOST): That's exactly right.

PERINO: Why do you pardon somebody? You don't pardon them for burping at the table. You pardon them because they were going to be convicted of a crime. [Fox News, The Five, 8/21/15, via Media Matters, 9/2/15]

But Deutch Intentionally Created And Mishandled Classified Information, Unlike Clinton

Deutch “Intentionally Created The Most Sensitive Of Documents On Computers Configured For Unclassified Use.” The Inspector General for the CIA concluded in 2000 that Deutch intentionally placed classified material he created on personal computers not configured for classified use. As explained by the IG, "Deutch intentionally processed on those computers large volumes of highly classified information to include Top Secret Codeword material.” From the 2000 report:

  1. (U/ /FOUO) During his tenure as DCI, Deutch said that he intentionally created the most sensitive of documents on computers configured for unclassified use. Deutch stated that if these documents were created on the classified CIA computer network, CIA officials might access the system at night and inappropriately review the information. Deutch said that he had not spent a significant amount of time thinking about computer security issues.
  2. (U/ /FOUO) Throughout his tenure as DCI, Deutch intentionally processed on those computers large volumes of highly classified information to include Top Secret Codeword material. [ “Improper Handling of Classified Information by John M. Deutch,” Central Intelligence Agency Inspector General, 2/18/00, via Media Matters, 9/2/15]

Wash. Post's David Ignatius: Unlike Clinton, Deutch Knowingly Used An Unsecured CIA Computer To Access Classified Information Improperly At Home. The Washington Post's David Ignatius explained the difference between Clinton and Deutch’s email use noting that Deutch's use of “an unsecured CIA computer at his home to improperly access classified material” does not “fit[] the fact pattern with the Clinton emails,” despite the fact they've been “cited as parallels.” From an August 27 opinion piece:

Potential criminal violations arise when officials knowingly disseminate documents marked as classified to unauthorized officials or on unclassified systems, or otherwise misuse classified materials. That happened in two cases involving former CIA directors that are cited as parallels for the Clinton e-mail issue, but are quite different. John Deutch was pardoned in 2001 for using an unsecured CIA computer at his home to improperly access classified material; he reportedly had been prepared to plead guilty to a misdemeanor. David Petraeus pleaded guilty to a misdemeanor in April for “knowingly” removing classified documents from authorized locations and retaining them at “unauthorized locations.” Neither case fits the fact pattern with the Clinton e-mails. [The Washington Post, 8/27/15, via Media Matters, 9/2/15]

AP: Unlike Deutch, There Is No Evidence That Clinton Improperly Stored Indisputably Classified Emails. The Associated Press wrote on August 31 that, contrary to Deutch's improper handling of highly classified material, “there is no evidence of emails stored in Hillary Clinton's private server bearing classified markings” or being self-evidently classified “whether marked or not.” From an August 31 article:

Some Republicans, including leading GOP presidential candidate Donald Trump, have called Clinton's actions criminal and compared her situation to that of David Petraeus ... Others have cited the case of another past CIA chief, John Deutch, who took highly classified material home.

But in both of those cases, no one disputed that the information was highly classified and in many cases top secret. Petraeus pleaded guilty to a misdemeanor; Deutch was pardoned by President Bill Clinton.

By contrast, there is no evidence of emails stored in Hillary Clinton's private server bearing classified markings. State Department officials say they don't believe that emails she sent or received included material classified at the time. And even if other government officials dispute that assertion, it is extremely difficult to prove anyone knowingly mishandled secrets.

[...]

A case would be possible if material emerges that is so sensitive Clinton must have known it was highly classified, whether marked or not, McAdoo said. But no such email has surfaced. And among the thousands of documents made public, nothing appears near the magnitude of the Top Secret material Petraeus and Deutch mishandled. [The Associated Press, 8/31/15, via Media Matters, 9/2/15]

September 2015: More Media Confusion Over How Classification Works & False Claims From Fox

 

Fox Claimed Some Of Clinton’s Emails Were Automatically Classified Under 2009 Executive Order

Fox Contributor Monica Crowley: Clinton “Obviously Should Have Known” That Some Of Her Unmarked Emails Were “Automatically Classified” By Obama's Executive Order. Fox contributor Monica Crowley pointed to an executive order issued by President Obama in 2009 to claim it required all information discussing foreign governments to be automatically classified and thus Clinton should have known she was handling classified information. From the September 1 edition of The O'Reilly Factor:  

MONICA CROWLEY: Look, in 2009, Barack Obama issued an executive order called Classified National Security Information. And by doing that, he automatically classified information that is related to information that foreign governments have provided. What we're now hearing from this latest batch, what we can see from these emails, is that nearly all of the emails in question contain information provided by foreign governments.

[...]

Automatically classified. Mrs. Clinton obviously should have known that. [Fox News, The O'Reilly Factor, 9/1/15]

Fox Contributor Stephen Hayes: Clinton's Emails Were “Indisputably Classified” Under Obama's Executive Order. Fox contributor Stephen Hayes claimed that Clinton's email communication concerning foreign officials were “indisputably classified” according to Obama's executive order, and claimed that Clinton violated the executive order. From the September 2 edition of Fox News’ America's Newsroom:

HAYES: The fact that the information that she sent, that she created and sent and also received, was classified -- it's indisputably classified. It's classified according to President Obama's executive order 13526 issued in December of 2009 which suggests that information derived from foreign government sources included in a non-classified setting violates that executive order. That's a huge problem for her. [Fox News, America's Newsroom, 9/2/15, via Media Matters, 9/2/15]

But Classification Of Communication With Foreign Officials Is Not Mandatory Under 2009 Executive Order

Executive Order 13526: Classification Is Not Automatic But Can Be Considered If Unauthorized Disclosure May Cause Damage To National Security. In December 2009, Obama signed an executive order prescribing “a uniform system for classifying, safeguarding, and declassifying national security information.” The order did not mandate classification for “foreign government information” and “foreign relations,” but instead authorized the consideration for classification if “its unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security.” The order further clarified that "[i]f there is significant doubt about the need to classify information, it shall not be classified." From the order:

Section 1.1. Classification Standards.

(b) If there is significant doubt about the need to classify information, it shall not be classified. This provision does not:

(1) amplify or modify the substantive criteria or procedures for classification; or

(2) create any substantive or procedural rights subject to judicial review.

[...]

Sec. 1.4. Classification Categories. Information shall not be considered for classification unless its unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security in accordance with section 1.2 of this order, and it pertains to one or more of the following:

(a) military plans, weapons systems, or operations;

(b) foreign government information;

(c) intelligence activities (including covert action), intelligence sources or methods, or cryptology;

(d) foreign relations or foreign activities of the United States, including confidential sources;

(e) scientific, technological, or economic matters relating to the national security;

(f) United States Government programs for safeguarding nuclear materials or facilities;

(g) vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security; or

(h) the development, production, or use of weapons of mass destruction. [Executive Order 13526 -- Classified National Security Information, 12/29/09, via Media Matters, 9/2/15]

Security Expert: Order “Authorizes Classification; It Doesn't Require It.” In an interview with Mother Jones, security expert Steven Aftergood explained that Executive Order 13526 on classification “is permissive, not mandatory.” Rather than requiring that communication between foreign officials be marked classified, the order “authorizes classification.” From the August 21 article:

“Strictly speaking, the executive order on classification is permissive, not mandatory,” Steven Aftergood, who writes Secrecy News for the Federation of American Scientists, told Mother Jones. “In other words, it authorizes classification; it doesn't require it.” Aftergood pointed to Executive Order 13526, signed by President Obama in December 2009, which says “information may be originally classified,” but does not explicitly mandate it.

Government policy encourages these sorts of communications to be classified in most instances. “It is obviously good practice to respect the confidentiality of communications from foreign partners if one hopes to maintain a productive relationship,” Aftergood says. But it's not always mandatory, making it hard to judge from the outside whether Clinton mishandled the information in specific instances. [Mother Jones, 8/21/15, via Media Matters, 9/2/15]

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

Fox Correspondent Catherine Herridge: Clinton Email Markings Changed To B5 Designation “To Hide Classified Info.” Writing for FoxNews.com, Fox’s 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.” From a September 1 article:

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, via Media Matters, 9/2/15]

Fox’s Elisabeth Hasselbeck: Email Markings “Changed To A Category That Actually Shields Them From Being Released” Because “They Don't Want It Out There.” Fox 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.” From the September 2 edition of Fox News' Fox & Friends:

ELISABETH HASSELBECK (CO-HOST): 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 this deep, dark black hole so no one could ever see it. Now, why would they switch that?

PETE HEGSETH (CO-HOST): 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 & Friends, 9/2/15, via Media Matters, 9/2/15]

Clinton Emails Were Designated A Common FOIA Exemption For "Documents That Are Normally Privileged In The Civil Discovery Context,” Consistent With Attorney General's 2009 FOIA Guidance

“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.” From the guide:

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, via Media Matters, 9/2/15]

State Dept. Recommended That Certain Emails Detailing Agency Deliberations Be Changed From Classified To Privileged, “Consistent With The Attorney General's 2009 FOIA Guidance.” The State Department's response to the Intelligence Community Inspector General explained the decision to redact “deliberations among policy officials” under exemption B5 was in a manner “consistent with the Attorney General's 2009 FOIA guidance.” From the July 14, 2015 memorandum (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 14 response 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 equities 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, via Media Matters, 9/2/15]

Wash. Post Claimed State Department Was Inconsistent On When It Requested Records Of Clinton’s Emails

Wash. Post: “State Department Provided New Information Tuesday That Undercuts Clinton's Characterization” Of Records Request Pertaining To Emails. The Washington Post reported that “State Department officials provided new information Tuesday that undercuts Clinton's characterization” of her “decision last year to turn over thousands of work-related e-mails as a response to a routine-sounding records request.” The Post wrote that the request for Clinton's work-related emails “was not simply about general record-keeping but was prompted entirely by the discovery that Clinton had exclusively used a private e-mail system.” The article pointed to “new information” that the agency “first contacted her in the summer of 2014, at least three months before [they] asked Clinton and three of her predecessors to provide their e-mails.” From the September 22 article (emphasis added):

Throughout the controversy over her use of a private e-mail system while she was secretary of state, Hillary Rodham Clinton has described her decision last year to turn over thousands of work-related e-mails as a response to a routine-sounding records request.

“When we were asked to help the State Department make sure they had everything from other secretaries of state, not just me, I'm the one who said, 'Okay, great, I will go through them again,' ” Clinton said Sunday on CBS's “Face the Nation.” “And we provided all of them.”

But State Department officials provided new information Tuesday that undercuts Clinton's characterization. They said the request was not simply about general rec­ord-keeping but was prompted entirely by the discovery that Clinton had exclusively used a private e-mail system. They also said they first contacted her in the summer of 2014, at least three months before the agency asked Clinton and three of her predecessors to provide their e-mails.

“In the process of responding to congressional document requests pertaining to Benghazi, State Department officials recognized that it had access to relatively few email records from former Secretary Clinton,” State Department spokesman John Kirby said in a statement e-mailed to The Washington Post. “State Department officials contacted her representatives during the summer of 2014 to learn more about her email use and the status of emails in that account.” [The Washington Post, 9/22/15, via Media Matters, 9/23/15]

State Department Was Consistent On When It Requested Clinton Emails

NY Times: State Department Lawyers Began Inquiring Into Clinton's Email Use After Benghazi-Related Records Review Drew Attention To Email Account. The New York Times reported that Clinton's decision to turn over her emails followed “the review of Benghazi-related documents last summer ... within the State Department, [that] set off the chain of events leading to the public disclosure this week of Mrs. Clinton's use of a private email account.” From a March 5, 2015 article:

As State Department lawyers sifted last summer through a new batch of documents related to the Benghazi attacks, they repeatedly saw something that caught their attention: emails sent to and from a personal account for Hillary Rodham Clinton.

The lawyers, according to current and former State Department officials, were working to respond to a request from a specially appointed House committee investigating the 2012 attacks in Libya. But they noticed that among the 15,000 documents they examined, there were no emails to or from an official departmental account for Mrs. Clinton.

“This all raised the question to us: What else are we missing, and what do we need to comply' with the request, said one official briefed on the matter.”

Mrs. Clinton's spokesman and the State Department have cast her decision to hand over her emails as motivated by efforts to update the department's record management system. “When the department asked former secretaries last year for help ensuring their emails were in fact retained, we immediately said yes,” Nick Merrill, the Clinton spokesman, said on Sunday.

But it was the review of Benghazi-related documents last summer that, within the State Department, set off the chain of events leading to the public disclosure this week of Mrs. Clinton's use of a private email account, according to the current and former department officials. [The New York Times, 3/5/15, via Media Matters, 9/23/15]

Politico: State Dept. Acknowledged Benghazi Investigation “Played A Role In” Decision To Ask Clinton And Three Other Secretaries Of State" To Turn Over Work-Related Emails. Politico reported that “the State Department acknowledged Friday that a Congressional investigation into the attack on U.S. facilities in Benghazi played a role in the agency's decision to ask Hillary Clinton and three other secretaries of state to turn over copies of all work-related emails they sent or received on private accounts during their tenure.” From a March 6, 2015, article:

In a reversal, the State Department acknowledged Friday that a Congressional investigation into the attack on U.S. facilities in Benghazi played a role in the agency's decision to ask Hillary Clinton and three other secretaries of state to turn over copies of all work-related emails they sent or received on private accounts during their tenure.

State spokeswoman Marie Harf told reporters that a special House committee's ongoing probe into the Benghazi incident was one of many factors that led the department to send a request last October that resulted in Clinton sending her former agency 55,000 pages of emails she exchanged on an unofficial account.

“Certainly, that's a factor, but ... as we've said now a few times, it was not any one thing that prompted this,” Harf said at a daily briefing dominated by questions about the email issue dogging Clinton as she prepares to launch a presidential bid. [Politico, 3/6/15, via Media Matters, 9/23/15]

NY Times: “Senior State Department Officials” In 2014 “Held Negotiations With Mrs. Clinton's Lawyers To Gain Access To Her Personal Email Records.” The New York Times reported that ” senior State Department officials held negotiations with Mrs. Clinton's lawyers and advisers to gain access to her personal email records" beginning in August 2014. From the March 5, 2015 article:

Beginning in August, senior State Department officials held negotiations with Mrs. Clinton's lawyers and advisers to gain access to her personal email records. At one point, her advisers met face-to-face with department officials in Washington.

In October, the State Department sent a letter to Mrs. Clinton and all former secretaries of state back to Madeleine K. Albright, seeking emails and other documents in their possession that related to their government work.

Finally, in December, dozens of boxes filled with 50,000 pages of printed emails from Mrs. Clinton's personal account were delivered to the State Department. Those documents were then examined by department lawyers, who found roughly 900 pages pertaining to the Benghazi attacks. [The New York Times, 3/5/15, via Media Matters, 9/23/15]

October 2015: AP And Conservative Media Overhyped More Email Stories

AP Claimed Clinton’s Server Was Repeatedly Hit By Attempted Cyberattacks

AP: Clinton Server Hack Attempts Came From China, Korea, Germany. The Associated Press reported on October 8 that Clinton's server “was repeatedly hit by attempted cyberattacks originating in China, South Korea and Germany in 2014.” The AP noted, “It was not immediately clear whether the attempted intrusions into Clinton's server were serious espionage threats or the sort of nuisance attacks that hit computer servers the world over,” hypothesizing that "[a]ny hackers who got access to her server in 2013 or 2014 could have stolen a trove of sensitive email traffic involving the foreign relations of the United States." [The Associated Press, 10/8/15, via Media Matters, 10/9/15]

But The Hacking Attempts Weren’t Focused On Clinton, And There’s No Evidence They Were Successful

Wash. Post: According To Expert, “The [AP] Story Is Much Less Alarming.” The Washington Post’s Philip Bump explained that alarmism surrounding the Associated Press' latest report can be derived from how "[p]eople don't really understand how the internet works, and so the stories might sound more ominous than they otherwise would." Bump cited WCA Technologies President Pete Fidler to explain that the hack “doesn’t mean … that they were targeting Clinton specifically” or “that they were actually able to access information.” From the October 9 article (emphasis added):

The personal e-mail server that Hillary Rodham Clinton used was repeatedly subject to hacking attempts from users in China, South Korea and Germany in 2014, the Associated Press reported Wednesday. Which seems as though it confirms some of the worst fears of Clinton's detractors: an insecure system, with foreign agents peeking in.

But to Peter Fidler, president of the tech firm WCA Technologies in New York, the story is much less alarming.

“It's not unusual at all” that there would be attempts to hack into her server, Fidler said when we spoke with him by phone on Thursday. “Basically what it means -- a hacking attempt [is] they'll try to log in as admin, sysadmin, administrator ... they'll try many different types of names and not give up. We used to see that a lot. We would capture all these things and then block entire countries.”

In other words, that someone from China tried to hack into Clinton's server doesn't mean 1) that they were targeting Clinton specifically, 2) that they were agents of the Chinese government, or 3) that they were actually able to access information.

[...]

It's complicated to explain, but not in itself unusual, as Fidler indicated. (The AP article itself notes that "[i]t was not immediately clear whether the attempted intrusions into Clinton's server were serious espionage threats or the sort of nuisance attacks that hit computer servers the world over.")

But the story reinforced one of the challenges that Clinton faces as the e-mail server story continues to slowly unfold: People don't really understand how the Internet works, and so the stories might sound more ominous than they otherwise would.

[...]

When the most recent batch of e-mails released by Clinton became public at the end of last month, people noticed apparent “phishing” attempts mixed into the files. The AP reported that “Russia-linked hackers tried at least five times to pry into Hillary Rodham Clinton's private e-mail account.” Included with the story was an example, showing a message pretending to be from a “police agency” with an attachment that was claimed to be a parking ticket.

That, too, is “not unusual at all,” Fidler said. “It happens all the time.” [The Washington Post, The Fix, 10/9/15, via Media Matters, 10/9/15]

Right-Wing Media Pushed Trey Gowdy’s Claim That Clinton Revealed Name Of Classified CIA Source Over Email

Trey Gowdy Letter: Clinton Sent Email Containing “Some Of The Most Protected Information In Our Intelligence Community” Concerning A “Human Source” In Libya. Benghazi Committee Chairman Trey Gowdy claimed in an October 7 letter that Clinton “apparently received classified information” in an email from confidant Sidney Blumenthal. Gowdy wrote that Clinton then forwarded the email to a State Department employee, “debunking her claim that she never sent any classified information from her private email address.” Gowdy claimed that Clinton's action “could jeopardize not only national security but also human lives.” [House of Representatives Select Committee on Benghazi, 10/7/15, via Media Matters, 10/18/15]

Fox's Ed Henry: Blumenthal “Appear[ed] To Provide Classified Information To Clinton Over Her Private Server.” Fox correspondent Ed Henry claimed during the October 8 edition of Fox News' Hannity that one of the emails Gowdy released was “an email where the advisor [Sidney Blumenthal] appears to provide classified information to Clinton over her private server.” Henry added that Gowdy was worried that the email “could jeopardize not just national security but also human lives.” [Fox News, Hannity, 10/8/15, via Media Matters, 10/18/15]

Washington Examiner: “Incompetent Or Indifferent: Clinton ” Burns CIA Libya Contact." In an article headlined, “Incompetent or indifferent: Clinton burns CIA Libya contact,” the Washington Examiner claimed Clinton “forwarded this email to a State Department colleague” even though “people working for the CIA in dangerous countries such as Libya have a way of dying or disappearing when their identities are exposed.” From the October 10 article:

It should go without saying that people working for the CIA in dangerous countries such as Libya have a way of dying or disappearing when their identities are exposed. Yet Clinton forwarded this email to a State Department colleague anyway.

[...]

Clinton was fortunate to have this story buried behind the current chaos in Congress. But once that chaos is ended, she will have to answer for this egregious breach, if not to the FBI, then at least to voters. [ Washington Examiner, 10/10/15, via Media Matters, 10/18/15]

But The CIA Told Select Committee On Benghazi The Information Was Not Classified

Cummings Letter: “The CIA Has Now Informed The Select Committee That” Gowdy’s Claim Was Wrong. In a letter to Gowdy, Rep. Elijah Cummings wrote that Gowdy's claim was wrong and the CIA had informed the committee that the information in Blumenthal's email was not classified. From the October 18 letter:

On October 7, 2015, you sent me a 13-page letter making a grave new accusation against former Secretary of State Hillary Clinton. Specifically, you accused her of compromising national security and endangering lives.

The problem with your accusation--as with so many others during this investigation--is that you failed to check your facts before you made it, and the CIA has now informed the Select Committee that you were wrong. I believe your accusations were irresponsible, and I believe you owe the Secretary an immediate apology.

[...]

To further inflate your claim, you placed your own redactions over the name of the individual with the words, “redacted due to sources and methods.” To be clear, these redactions were not made, and these words were not added, by any agency of the federal government responsible for enforcing classification guidelines.

Predictably, commentators began repeating your accusations in even more extreme terms, suggesting in headlines for example that “Clinton Burns CIA Libya Contact.”

Contrary to your claims, the CIA yesterday informed both the Republican and Democratic staffs of the Select Committee that they do not consider the information you highlighted in your letter to be classified. Specifically, the CIA confirmed that “the State Department consulted with the CIA on this production, the CIA reviewed these documents, and the CIA made no redactions to protect classified information.”

Unfortunately, you sent your letter on October 7 without checking first with the CIA. Now that we have done so, we have learned that your accusations were incorrect. [Select Committee on Benghazi, 10/18/15, via Media Matters, 10/18/15]

November 2015: Claims From Conservative Media Supposedly Contradicting Clinton Didn’t Hold Up

Washington Examiner Claimed Benghazi-Related Emails Contradict Clinton’s Claim That Most Of Her Work Was Done Outside Of Email

Wash. Examiner: Benghazi Emails “Contrary” To Clinton’s Claim On Not Using Email For Most Work. The Washington Examiner claimed that “emails sent the night” of the Benghazi attacks were “contrary” to her claim that “she had conducted the majority of her work outside of email and that she had been receiving live updates about the attack in person, not on her private server.” From the November 30 article:

Emails sent the night of the attack indicate Clinton did indeed receive updates about the unfolding violence in Benghazi via her private, unsecured email network, contrary to her testimony in an Oct. 22 hearing before the House Select Committee on Benghazi.

Clinton argued last month that she had conducted the majority of her work outside of email and that she had been receiving live updates about the attack in person, not on her private server. When describing her modes of communication she used on the night of the attack, Clinton cited secure phones and the SCIF, or sensitive compartmented information facility used for viewing classified material, in her home.

But Clinton defended the lack of Benghazi updates among her private emails by arguing that most of her communications did not take place over email. [The Washington Examiner, 11/30/15, via Media Matters, 12/1/15]

But Clinton Never Said She Did No Business Through Email

Clinton Said She Did Some Business Over Email. Clinton in her October testimony said that most of her work was outside email, but at no point in her testimony did Clinton state that she received no email communications on the night of the attack. She did testify that beyond secure phones she used “other equipment that kept [her] in touch with the State Department at all times.” [Media Matters, 12/1/15]

January 2016: More False Claims Came Out About Clinton Circumventing Classified Networks

Right-Wing Media Claimed Clinton Violated Law By Directing Document To Be Sent Over Non-Secure System

Clinton's Request For Alternative Delivery Of Talking Points Drew Republican Criticism Over Transmittal Of Classified Information. A report by NPR explained how a newly released email sent by former Secretary Clinton requesting an alternative means of receiving talking points because of problems with transmission by secure fax angered some Republicans. From the January 8 piece:

One particular email drew scrutiny Friday -- a June 17, 2011, exchange between Clinton and adviser Jake Sullivan. In that email string, she tells Sullivan she did not receive the evening's talking points -- typically specifics used to speak to the press and for briefings.

“They say they've had issues sending secure fax. They're working on it,” he writes to Clinton. She responds, “If they can't, turn into nonpaper w no identifying heading and send nonsecure.”

Much of the email, including its subject line, were redacted, making it difficult to discern the topic and full context of the document.

[...]

Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, said in a statement that the specific email “raises a host of serious questions and underscores the importance of the various inquiries into the transmittal of classified information through her non-government email server.” [NPR, 1/8/16, via Media Matters, 1/10/16]

Hugh Hewitt On Clinton's Request: “It's Clearly A Felony. I Think She's Going To Be Indicted.” Conservative radio host Hugh Hewitt complained that on Sunday morning political talk shows “no one brings up 18 USC 1924, a statute that former Secretary of State Clinton almost certainly broke,” claiming the newly released email shows “she directed Jake Sullivan to alter and send over a non-secure system” classified information, and concluding that "[i]t's clearly a felony." From the January 10 edition of ABC’s This Week:

HUGH HEWITT: This morning, on every national show, I'll bet you no one brings up 18 USC 1924, a statute that former Secretary of State Clinton almost certainly broke, as was released on Friday. I'll bet you it's not discussed anywhere, but that Donald Trump will discuss it, and when he does that--

GEORGE STEPHANOPOULOS (HOST): Can you explain what the statute is?

[CROSSTALK]

HEWITT: The statute prohibits the misuse of classified information, and she directed Jake Sullivan to alter and send over a non-secure system secure communications. It's clearly a felony, I think she's going to be indicted. Nevertheless, no one is going to talk about that and because Trump will, he scores. Not because of hatred, but because of candor. [ABC, This Week with George Stephanopoulos, 1/10/16]

Fox’s Napolitano Claimed Clinton Instructed Aide To Violate Law. Fox’s Andrew Napolitano claimed Hillary Clinton’s instructions to her aide “shows an intent and a willingness to violate the laws.” From the January 12 edition of Fox News’ Fox & Friends:

ANDREW NAPOLITANO: Good morning, Steve. There's two investigations going on now. And both are coming to a head shortly. The first is the email investigation. Did she or did she not fail to secure national security secrets? The evidence that she failed to do that is overwhelming. Over the weekend, we've got two smoking guns, two emails from Mrs. Clinton to two separate aides. One says that document that says secret on it that you can't get to me using a State Department fax machine, don't worry, use another fax machine. The other, that document that says secret on it, referring to another document, get rid of the word “secret” before you send to me. That shows an intent and a willingness to violate the laws that require that you protect secrets.

STEVE DOOCY (HOST): She was telling her aide how to break the law.

NAPOLITANO: Precisely. We don't know if the aide did it.

DOOCY: It doesn't matter, does it?

NAPOLITANO: No it doesn't. Because it shows a willingness and an intent to break the law.

[...]

DOOCY: She has said on numerous occasions, the stuff on my private email that was unsecured? Nothing secret there. But now, as of yesterday, we're up to at least 1,340 classified email.

NAPOLITANO: Correct. The other thing she said after Catherine's report came out yesterday, was, Fox News is wrong, I'm not being investigated. She would not know whether or not she's being investigated. There is no obligation of the Justice Department to tell her she's being investigated until they get closer to the end of their work.

DOOCY: And real quick exit question: all right, so it sounds like the FBI is amassing all this data. It sounds like, from what you've said and what others have said, Joe diGenova said the other day, that they've got the goods on her. Next thing you know, OK, they just found it. They give it to the attorney general. If they decide not to prosecute her, what's going to happen inside the FBI?

NAPOLITANO: I think you will see massive resignations and almost a, if I could use the phrase , “Saturday Night Massacre,” the likes of which we saw at the time of Watergate. [Fox News, Fox & Friends, 1/12/16]

But Document In Question Was Transmitted By Secure Method

National Security Experts Said There's No Evidence That Hillary Clinton Broke Any Laws By Requesting That Talking Points Be Sent To Her Over A “Nonsecure” Channel. As national security and legal experts told Media Matters, claims that the email to adviser Jake Sullivan proves lawbreaking are overheated. They cited the lack of evidence that anything classified was ever sent through any unsecure avenues -- and the fact that separating unclassified from classified information for separate treatment can be permissible:

“We don't know what was exactly in the email, but we also don't know that it contained any classified information,” said Steven Aftergood, Director of the Project on Government Secrecy at the Federation of American Scientists. “Not everything in a classified document is necessarily classified and it is entirely possible to separate out unclassified material from what is classified.”

J. William Leonard, former director of the U.S. Information Security Oversight Office under George W. Bush, said such requests must be handled “with care,” but also found no proof of illegality.

“It shows people dealing with the daily frustration in terms of trying to use somewhat cumbersome security accounts,” he said of Clinton's email. He later said that to prove anything illegal or improper occurred “you'd have to see the actual substance of what was eventually transmitted.”

Thomas S. Blanton, director of the National Security Archive at George Washington University who has testified before Congress on related issues, also found no evidence of an improper act being committed.

“It's certainly not illegal, it's unclassified information,” he said. “She has argued that she did not send [anything] classified, or marked classified. And I don't think they have come up with an example.” [Media Matters, 1/11/16]

AP: State Department's “Records ... Turned Up A Secure Fax Transmission Shortly After Clinton's Email Exchange With Adviser Jake Sullivan.” The AP reported that the State Department “checked its records and found no indication that the document in question was sent to Secretary Clinton using nonsecure fax or email,” and “instead turned up a secure fax transmission shortly after Clinton's email exchange.” From a January 9 article:

The State Department provided more detail Saturday about a 2011 document at the center of Hillary Clinton's latest email controversy, as an official said the former secretary of state never received the paper by nonsecure fax. But many other questions remained unanswered.

Clinton, whose presidential campaign has been challenged by her use of a private email account while secretary of state, is facing questions anew after Friday's revelation that she asked an adviser to go around a secure fax system to transmit a set of “talking points” on an unspecified subject.

Clinton told the adviser to turn it “into nonpaper w/no identifying heading and send nonsecure.” Republicans immediately pounced on the exchange and suggested it proved impropriety.

The State Department said Friday that no such document was sent by email.

And on Saturday, a State Department official who wasn't authorized to speak publicly on the increasingly complicated review of Clinton's emails said the agency “checked its records and found no indication that the document in question was sent to Secretary Clinton using nonsecure fax or email.”

The official, who demanded anonymity, said records instead turned up a secure fax transmission shortly after Clinton's email exchange with adviser Jake Sullivan on June 17, 2011. The implication was that this was the same document. [Associated Press, 1/9/16]

Politico: “Officials See No Indication The Document Was Ever Sent To The Email Account Clinton Used.” Politico cited State Department spokesman John Kirby saying that the State Department has “found no indication that the document was emailed to former Secretary Clinton.” From a January 8 article:

The FBI has been investigating whether Clinton's homemade email ever put classified information at risk, and Republicans on the Hill have also been probing the matter. A key question they've asked is whether someone instructed aides to send classified information over unsecured accounts, which can be illegal.

The campaign in a statement Friday said Clinton would do no such thing.

“It is false that Hillary Clinton asked for classified material to be sent over a nonsecure system,” said spokesman Brian Fallon in a statement.

And State Department spokesman John Kirby said officials see no indication the document was ever sent to the email account Clinton used, which was hosted on a private server.

“We did do some forensics on that and found no evidence it was actually emailed to her,” Kirby said at a daily news briefing on Friday. “We have found no indication that the document was emailed to former Secretary Clinton. There are other ways it could have found its way to her for her use.”

Kirby also said the fact that the talking points were initially set to be sent via a secure system did not necessarily mean they were classified.

“Just because something, a document, is on a classified system doesn't necessarily make the document, the content, necessarily classified,” he added. He would not say if the document was classified. [Politico, 1/8/16]

Fox Hyped Claim That Clinton’s Emails Contained Information Above Top Secret

FoxNews.com: Letter From Intelligence Community IG Shows Clinton's Emails Contained Information On Government's “Most Secretive And Highly Classified Programs.” A FoxNews.com report claimed a letter to Congress from the Intelligence Community (IC) Inspector General, Charles McCullough, stated Hillary Clinton's emails contained information on the government's “most secretive and highly classified programs,” including intelligence designated “special access programs” (SAP), a “level of classification beyond even 'top secret.'” From the January 19 article:

Hillary Clinton's emails on her unsecured, homebrew server contained intelligence from the U.S. government's most secretive and highly classified programs, according to an unclassified letter from a top inspector general to senior lawmakers.

Fox News exclusively obtained the unclassified letter, sent Jan. 14 from Intelligence Community Inspector General I. Charles McCullough III. It laid out the findings of a recent comprehensive review by intelligence agencies that identified “several dozen” additional classified emails -- including specific intelligence known as “special access programs” (SAP).

That indicates a level of classification beyond even “top secret,” the label previously given to two emails found on her server, and brings even more scrutiny to the presidential candidate's handling of the government's closely held secrets. [FoxNews.com, 1/19/16]

Fox's Guy Benson: Report Is A “Nuclear Bombshell” That Shows Clinton “Willfully And Recklessly Compromised” State Secrets. Fox News contributor and Townhall.com editor Guy Benson wrote that the report was “a nuclear bombshell” and that “high-level state secrets [were] being willfully and recklessly compromised by a powerful cabinet secretary in a hair-brained scheme to protect her political ambitions.” From a January 19 blog post:

If this early January development was a bombshell, today's revelation is a nuclear bombshell. Hillary Clinton's improper, unsecure email server appears to have endangered national security even more than previously thought -- and her excuses continue to melt away under intensifying scrutiny. Extremely serious findings from the intelligence community's Inspector General, reported exclusively by Fox News' Catherine Herridge[.]

[...]

Hillary's campaign unsuccessfully attempted to dispute the IG's previous determination that her woefully under-secure bootleg server contained intelligence deemed 'top secret;' this is even worse. Her already-dubious and legally-irrelevant “marked classified” excuse suffers another crushing blow.

[...]

This isn't about breaking some arcane rules or fudging some statements to deflect a political headache. This is about high-level state secrets being willfully and recklessly compromised by a powerful cabinet secretary in a hair-brained scheme to protect her political ambitions. [Townhall.com, 1/19/16]

Fox's Chuck Nash: Clinton's Emails Like A “Nuclear Weapon.” Fox News military analyst Chuck Nash said the Clinton emails in question were the equivalent to “a nuclear weapon” and are “the most dear, precious secrets that we hold as a nation.” From the January 20 edition of Fox News’ America’s Newsroom:

CHUCK NASH: [Y]ou have to look at what [Clinton] and her staff were doing. There are over 1,340 emails that now have been judged classified, some of which as you point out, go all the way up to special access program level, which is the highest. To put it in context, of the 1,340 emails, some are confidential, which would be the equivalent of a bullet. Some are secret, which would be the equivalent of a hand grenade. And some are top secret, which would be like a bomb. SAP information is like a nuclear weapon. That is -- those are the most dear, precious secrets that we hold as a nation, and they're such limited access to them because the information is so valuable. [Fox News, America's Newsroom, 1/20/16]

But Emails In Question May Have Related To Widely Known Public Information About U.S. Drone Program

Politico: Government Official Suggests “Some Or All” Of Clinton Emails Designated SAP Referenced Public Information About U.S. Drone Strikes. A government official told Politico “some or all of the emails deemed to implicate 'special access programs' related to U.S. drone strikes” and explained the information was "'not obtained through a classified product,'" although “the intelligence community considers information about classified operations to be classified even if it appears in news reports or is apparent to eyewitnesses on the ground.” From a January 19 article:

The official, who spoke on condition of anonymity, said some or all of the emails deemed to implicate “special access programs” related to U.S. drone strikes. Those who sent the emails were not involved in directing or approving the strikes, but responded to the fallout from them, the official said.

The information in the emails “was not obtained through a classified product, but is considered 'per se' classified” because it pertains to drones, the official added. The U.S. treats drone operations conducted by the CIA as classified, even though in a 2012 internet chat Presidential Barack Obama acknowledged U.S.-directed drone strikes in Pakistan.

The source noted that the intelligence community considers information about classified operations to be classified even if it appears in news reports or is apparent to eyewitnesses on the ground. For example, U.S. officials with security clearances have been warned not to access classified information leaked to WikiLeaks and published in the New York Times.

“Even though things are in the public domain, they still retain their classification level,” the official said. “The ICIG maintains its position that it's still 'codeword' classified.” [Politico, 1/19/16]

NBC News: Senior U.S. Officials Say Clinton Emails Discussed One Of “The Worst Kept Secrets In Washington.” According to NBC News, senior government officials confirmed that the classified information in the Clinton emails included discussions about the well-known CIA drone strike program, “among the worst kept secrets in Washington” since at least 2009. Not only did the officials characterize the email discussions as “innocuous,” NBC News pointed out “various public web sites continue to keep track of each CIA drone strike.” From a January 20 article:

The classified material included in the latest batch of Hillary Clinton emails flagged by an internal watchdog involved discussions of CIA drone strikes, which are among the worst kept secrets in Washington, senior U.S. officials briefed on the matter tell NBC News.

The officials say the emails included relatively “innocuous” conversations by State Department officials about the CIA drone program, which technically is considered a “Special Access Program” because officials are briefed on it only if they have a “need to know.”

As a legal matter, the U.S. government does not acknowledge that the CIA kills militants with drones. The fact that the CIA conducts drone strikes in Pakistan and Yemen, however, has long been known. Senior officials, including Sen. Dianne Feinstein and former CIA Director Leon Panetta, have publicly discussed CIA drones.

In 2009, Feinstein disclosed during a public hearing that the U.S. was flying Predator drones out of a base in Pakistan. Also that year, Panetta called drone strikes in Pakistan “the only game in town in terms of confronting or trying to disrupt the al Qaeda leadership.” Various public web sites continue to keep track of each CIA drone strike.

At issue are a new batch of emails from Clinton's home server that have been flagged as containing classified information in a sworn statement to the inspector general of the intelligence community. The sworn statement came from the CIA, two U.S. officials tell NBC News. [NBC News, 1/20/16]

Top Democrat On The Senate Intelligence Committee: The Story Is “Nothing New.” Senator Dianne Feinstein, senior Democrat on the Senate Intelligence Committee, dismissed the FoxNews.com report as “nothing new” and warned “the inspector general was being used for 'baldly partisan attacks.'” From a January 20 CBSNews.com report:

[Clinton's] campaign press secretary, Brian Fallon, reiterated what Clinton has said for months: no classified information was sent or received through her private email server.

“This is the same interagency dispute that has been playing out for months, and it does not change the fact that these emails were not classified at the time they were sent or received,” he said. “It is alarming that the intelligence community [inspector general], working with Republicans in Congress, continues to selectively leak materials in order to resurface the same allegations and try to hurt Hillary Clinton's presidential campaign. The Justice Department's inquiry should be allowed to proceed without any further interference.”

The top Democrat on the Senate Intelligence Committee, Dianne Feinstein, had a similar response, calling the story “nothing new.”

“None of the emails that are alleged to contain classified information were written by Secretary Clinton. The question of whether she received emails with classified information has nothing to do with any action taken by Secretary Clinton,” she said. “Additionally, none of the emails that were sent to Secretary Clinton were marked as including classified information, a requirement when such information is transmitted.”

Feinstein said the inspector general was being used for “baldly partisan attacks.” [CBSNews.com, 1/20/16]

Fox Linked Possible Petraeus Demotion To Possible Clinton Indictment

Fox Contributor Said Possible Petraeus Demotion “Laying Groundwork” For Clinton Indictment. Fox contributor John Bolton claimed that reports that the Pentagon would possibly demote Gen. David Petraeus due to being convicted over mishandling classified information “may be laying the groundwork for an indictment against Secretary Clinton.” From the January 19 edition of Fox News’ America’s Newsroom:

BILL HEMMER (HOST): Quickly, in 20 seconds. Petraeus might be demoted? What's that about?

JOHN BOLTON: Well, I think this has to come from the White House. I can't see the Pentagon raising this issue again. And it leads me to wonder whether this is an effort to show that a harsher penalty against Petraeus may be laying the groundwork for an indictment against Secretary Clinton. [Fox News, America’s Newsroom, 1/19/16

Fox's Napolitano Speculated That Possible Petraeus Demotion Is Intended “To Send Hillary Clinton A Message.” Fox legal analyst Andrew Napolitano speculated that reporting about the potential Petraeus demotion could be to “send Hillary Clinton a message.” From the January 21 edition of Fox News’ Fox & Friends:

HEATHER NAUERT (HOST): But Judge, this is very rare for the military to demote a four-star general. Also, the Army declined the decision to demote him, so [Secretary of Defense] Ash Carter would review this and would make the decision himself to do it. So, why would they do this now?

ANDREW NAPOLITANO: That's the great question. Is this political? Is this to send him a message? Don't tell everybody what you know about Benghazi because we'll keep coming after you. Is it to send Hillary Clinton a message? This is what we do to people who misuse national security secrets. Is it to send the military a message? You can't get away with anything even if you're a four-star general.

NAUERT: You know General Petraeus, you've spoken to him.

NAPOLITANO: Listen, I'm in an odd position of disagreeing with the war but knowing him, respecting him, believing he is a great man. He's brilliant and he's selfless. This is way too much. This is absolutely piling on. This is politically motivated, and quite frankly, I wish the secretary of defense would leave him alone. Now I have to say this, this could not happen --

NAUERT: So what do you think is going to happen? Do you think this will happen?

NAPOLITANO: I don't know, but it will only happen with the president's personal permission. Now, what is the president's endgame here? Is it Hillary Clinton indicted and not running for president? Is it Hillary Clinton somehow exonerated from having done thousands of times what General Petraeus was convicted of? More to come.

NAUERT: OK. Just to look at the other side of this, though, Ash Carter says he has to come down hard on military officers who do things unbecoming of an officer. So he says he has to treat General Petraeus like he would other officers, even enlisted as well. [Fox News, Fox & Friends, 1/21/16]

But That Possible Demotion Had Nothing To Do With Clinton

Exclusive Report On Possible Demotion Emphasized Defense Secretary “Clamp[ing] Down On Misbehaving Generals” And Did Not Mention Clinton. The Daily Beast exclusive report on the possible Petraeus demotion explained that his possible punishment was due to “admitt[ing] to giving classified information to his biographer and mistress while he was still in uniform,” and that Defense Secretary Ash Carter had demoted other generals and that he had a “commitment to maintaining upstanding behavior among the military’s generals.” Nowhere in the report is Clinton mentioned. [The Daily Beast, 1/18/16]

February 2016: Fox Again Claims Discussion Of News Articles Was Improper

 

Fox Claimed Clinton Discussed Classified Info Over Afghan CIA Source Through NY Times Articles

Fox's Catherine Herridge: “Clinton Email Chain Discussed Afghan National's CIA Ties.” Fox’s Catherine Herridge reported in an “exclusive” that an email chain which included Hillary Clinton contained conversations about an “Afghan national's ties to the CIA,” which Herridge suggested “raises security implications” because of “an executive order signed by President Obama [which] said unauthorized disclosures are 'presumed to cause damage to the national security.'” From a February 17 report:

One of the classified email chains discovered on Hillary Clinton's personal unsecured server discussed an Afghan national's ties to the CIA and a report that he was on the agency's payroll, a U.S. government official with knowledge of the document told Fox News.

The discussion of a foreign national working with the U.S. government raises security implications - an executive order signed by President Obama said unauthorized disclosures are “presumed to cause damage to the national security.”

The U.S. government official said the Clinton email exchange, which referred to a New York Times report, was among 29 classified emails recently provided to congressional committees with specific clearances to review them. In that batch were 22 “top secret” exchanges deemed too damaging to national security to release.

[...]

Based on the timing and other details, the email chain likely refers to either an October 2009 Times story that identified Afghan national Ahmed Wali Karzai, the half-brother of then-Afghan president Hamid Karzai, as a person who received “regular payments from the Central Intelligence Agency” -- or an August 2010 Times story that identified Karzai aide Mohammed Zia Salehi as being on the CIA payroll. Ahmed Wali Karzai was murdered during a 2011 shoot-out, a killing later claimed by the Taliban.

Fox News was told the email chain included then-Secretary of State Clinton and then-special envoy to Afghanistan and Pakistan Richard Holbrooke and possibly others. The basic details of this email exchange were backed up to Fox News by a separate U.S. government source who was not authorized to speak on the record.

[...]

While the Clinton campaign claims the government classification review has gone too far, Executive Order 13526, in a section called “classification standards,” says, “the unauthorized disclosure of foreign government information is presumed to cause damage to the national security.” [FoxNews.com, 2/17/16]

But The “Top Secret” Emails Reportedly Discuss Info Already Disclosed By NY Times

NY Times: “Brother Of Afghan Leader Said To Be Paid By C.I.A.The New York Times reported in October 2009 in a piece headlined “Brother of Afghan Leader Said to Be Paid by C.I.A.” that the CIA paid Afghan national Ahmed Wali Karzai, brother of Afghan President Hamid Karzai, “for a variety of services, including helping to recruit an Afghan paramilitary force.” From the article:

Ahmed Wali Karzai, the brother of the Afghan president and a suspected player in the country's booming illegal opium trade, gets regular payments from the Central Intelligence Agency, and has for much of the past eight years, according to current and former American officials.

The agency pays Mr. Karzai for a variety of services, including helping to recruit an Afghan paramilitary force that operates at the C.I.A.'s direction in and around the southern city of Kandahar, Mr. Karzai's home.

[...]

The relationship between Mr. Karzai and the C.I.A. is wide ranging, several American officials said. He helps the C.I.A. operate a paramilitary group, the Kandahar Strike Force, that is used for raids against suspected insurgents and terrorists. On at least one occasion, the strike force has been accused of mounting an unauthorized operation against an official of the Afghan government, the officials said.

Mr. Karzai is also paid for allowing the C.I.A. and American Special Operations troops to rent a large compound outside the city -- the former home of Mullah Mohammed Omar, the Taliban's founder. The same compound is also the base of the Kandahar Strike Force. “He's our landlord,” a senior American official said, speaking on the condition of anonymity.

Mr. Karzai also helps the C.I.A. communicate with and sometimes meet with Afghans loyal to the Taliban. Mr. Karzai's role as a go-between between the Americans and the Taliban is now regarded as valuable by those who support working with Mr. Karzai, as the Obama administration is placing a greater focus on encouraging Taliban leaders to change sides. [The New York Times, 10/27/09]

NY Times: “Karzai Aide In Corruption Inquiry Is Tied To C.I.A.” The New York Times reported in August 2010 in an article headlined “Karzai Aide in Corruption Inquiry Is Tied to C.I.A.” on the CIA's alleged payments to an aide to then-Afghan President Hamid Karzai. From the article:

The aide to President Hamid Karzai of Afghanistan at the center of a politically sensitive corruption investigation is being paid by the Central Intelligence Agency, according to Afghan and American officials.

Mohammed Zia Salehi, the chief of administration for the National Security Council, appears to have been on the payroll for many years, according to officials in Kabul and Washington. It is unclear exactly what Mr. Salehi does in exchange for his money, whether providing information to the spy agency, advancing American views inside the presidential palace, or both. [The New York Times, 8/25/10]

And Such News Articles Are Not Automatically Classified Under 2009 Executive Order

Executive Order Is An Authorization, Not An Requirement. The 2009 executive does not mandate classification, but is a suggestion if the information “could reasonably be expected to cause identifiable or describable damage to the national security.” [Media Matters, 2/17/16

March 2016: As Investigation Winds Down, Fox And Others Struggle To Find Proof Of Looming Indictment

Fox Hyped Immunity For Clinton Aide As Sign Of Justice Department ”Stepping Up” Investigation

Wash. Post: Clinton Aide Is Granted Immunity In Exchange For Cooperating In Investigation Into The Mishandling Of Classified Information. The Washington Post reported that the Department of Justice granted immunity to Bryan Pagliano, a Clinton aide who had set up her email server in New York in 2009. The report noted, “So far, there is no indication that prosecutors have convened a grand jury in the email investigation to subpoena testimony or documents, which would require the participation of a U.S. attorney's office.” From the March 2 article:

The Justice Department has granted immunity to a former State Department staffer, who worked on Hillary Clinton's private email server, as part of a criminal investigation into the possible mishandling of classified information, according to a senior law enforcement official.

The official said the FBI had secured the cooperation of Bryan Pagliano, who worked on Clinton's 2008 presidential campaign before setting up the server in her New York home in 2009.

As the FBI looks to wrap up its investigation in the coming months, agents are likely to want to interview Clinton and her senior aides about the decision to use a private server, how it was set up, and whether any of the participants knew they were sending classified information in emails, current and former officials said.

[...]

So far, there is no indication that prosecutors have convened a grand jury in the email investigation to subpoena testimony or documents, which would require the participation of a U.S. attorney's office. [The Washington Post, 3/2/16]

Fox's Megyn Kelly: “Justice Department May Be Seriously Stepping Up Its Investigation Into Hillary Clinton's Use Of A Private Email Server As Secretary Of State.” Fox host Megyn Kelly during the March 2 edition of Fox News’ The Kelly File hyped The Washington Post's story, claiming that the Justice Department may be “stepping up” its investigation into Clinton's use of a private email server by offering immunity to Pagliano. Kelly also speculated that “there is a greater chance than zero Hillary Clinton will be indicted.” [Fox News, The Kelly File, 3/2/16]

Fox's Andrew Napolitano: Immunity Deal Shows Grand Jury “Is Hearing Evidence” And Justice Department “Has Decided It's Going To Indict.” Fox senior judicial analyst Andrew Napolitano claimed the immunity deal showed “the FBI recommendation that we've been waiting for has already been made” and that a “witness could only testify if a grand jury was already hearing evidence.” Napolitano also concluded that the “Justice Department has decided it's going to indict someone” and that Pagliano was “about to spill the beans to a grand jury.” From the March 3 edition of Fox News' Fox & Friends:

AINSLEY EARHARDT (HOST): Judge, this is big. It broke last night. What does all this mean?

ANDREW NAPOLITANO: This is enough to shake the American political system to its foundation because we now know the following -- we know that the FBI recommendation that we've been waiting for has already been made.

EARHARDT: Why do you know that?

NAPOLITANO: Because the fact that immunity has been granted means that the Justice Department, lawyers in the Justice Department, not FBI agents, went to a federal judge and asked for immunity. A federal judge would only grant immunity for a witness to testify. A witness could only testify if a grand jury was already hearing evidence. So if a grand jury is hearing evidence, the evidence was obtained by the FBI and delivered to the Justice Department. The Justice Department has decided it's going to indict someone. Not Bryan Pagliano, the guy who installed her server in her house and diverted-- performed the technical procedures to divert her emails through that server, for which she paid him $5,000. They want him to testify against some person or persons north of him on the totem pole.

EARHARDT: Is it Hillary Clinton?

NAPOLITANO: Well, she's obviously at the top of the totem pole, but, candidly, there are numerous people between Mr. Pagliano and others. But last week a federal judge in the Freedom of Information Act case, not in the criminal case, said there might have been a conspiracy in the State Department to violate the federal laws. What federal laws would've been violated? The laws that require those who receive state secrets to keep them secure. You can commit espionage under federal law by intentionally or negligently failing to keep state secrets secure. Mr. Pagliano, the Justice Department apparently believes, was present at the creation of this conspiracy. He knows who led it. And he knows who was in it, and he's about to spill the beans to a grand jury. [Fox News, Fox & Friends, 3/3/16, via Media Matters​, 3/3/16]

But Immunity Is Normal And Does Not Imply Criminal Charges Are Forthcoming

CNN's Errol Louis: Immunity Does Not Guarantee “Something Criminal Or Nefarious Was Going On.” CNN political commentator Errol Louis pointed out that a lawyer would want to get their client immunity in order to prevent “any misunderstandings or any possibilities,” and that immunity does not necessarily show “that something criminal or nefarious was going on.” From the March 3 edition of CNN's New Day:

CHRIS CUOMO (HOST): So here's the headline: The former Hillary Clinton staffer who helped set up her private email server agreeing to talk to the feds in exchange for immunity from the Justice Department. Non-event or main event?

[...]

CUOMO: Errol, how do you see it?

ERROL LOUIS: I tend to think of if it as, if he had a good lawyer, like you, representing him, this email employee would probably say, 'I need immunity before I say anything. I don't want there to be any misunderstandings or any possibilities.' I don't think the mere fact that he's getting immunity signals that something criminal or nefarious was going on. [CNN, New Day, 3/3/16]

CNN's John King: Immunity Deals Are “Common In Investigations” And Republicans Need To “Step Back” From Making Conclusions. CNN chief national correspondent John King said giving immunity to participants is “common in investigations.” He also explained that it is routine to make “a deal with the people who aren't central to the investigation to get the information that you need for the investigation.” King said Republicans who believe “this is the sign of the coming indictment and everything else” need to “step back for a minute” and wait for the investigation to end before jumping to conclusions. From the March 3 edition of New Day:

ALISYN CAMEROTA (HOST): OK, let's talk about this. Former-- the top I.T. staffer for Hillary Clinton, who set up the private email server, can now speak freely, because he's been given immunity, to the FBI. How big of a deal?

JOHN KING: It is a big deal, but I would say if you're Hillary Clinton, you should be nervous and you should be happy. You should be nervous because this means they're going to get into the nuts and bolts of the investigation now, the guy who set it up, what did she say, what were the deals, did she talk anything about “are my emails secure? What if I receive sensitive information?” The FBI's going to have the guy who was right there on the ground when they installed this thing right now. But, but, let's just step back for a minute. The Republicans are saying this is the sign of the coming indictment and everything else. Let's-- everyone should take a breath. It means they're moving forward with the investigation and if you're Hillary Clinton, she has a debate this weekend. She's going to still have to answer about this. The Republicans hit her every day on this. If it means you're getting closer to the end of the investigation and if she is supremely confident she did nothing wrong, it's a good thing for her. So let's just see. We should all take a breath, but it does mean that-- this is common in investigations. You cut deals with two, three, four level witnesses to talk about the main issues and take it as progress.

CHRIS CUOMO (HOST): There's no question that it's a good investigative strategy. The question is is it good political strategy? Seems like the answer is no. Because to Alisyn's point, he was always free to speak freely to the investigators. He didn't want to until he got immunity, and even though the Fifth Amendment is writ large everywhere in our society's laws, it doesn't smell good.

KING: No, it doesn't, and it's a pretty common practice. You know the law very well. This is done in investigations every day, whether you're investigating a robbery at the 7/11 or whether you're investigating Hillary Clinton's email server. It's a pretty common tactic. Cut a deal with the people who aren't central to the investigation to get the information that you need for the investigation. But you're right, in this-- especially in this political environment, it's a great headline for the other side. “Immunity deal, Clinton investigation.” But let's see when we get to the end what the FBI says. [CNN, New Day, 3/3/16]

CNN's Mel Robbins: Clinton Aide May “Not Necessarily” Have Anything Important To Tell Investigators. CNN legal analyst Mel Robbins said it is “not necessarily” the case that Pagliano had anything of importance to tell federal investigators and that people “can make a mountain out of a molehill when somebody invokes their Fifth Amendment right not to testify.” Robbins also said it was “highly unlikely” Clinton would be criminally charged. From the March 3 edition of CNN's CNN Newsroom with Carol Costello:

CAROL COSTELLO (HOST): I want you to put this into perspective for us. So Pagliano. He had invoked his Fifth Amendment rights. Now he has immunity. But just because he invoked his Fifth Amendment rights, does that mean he has really anything substantive to say?

MEL ROBBINS: Not necessarily. You can make a mountain out of a molehill when somebody invokes their Fifth Amendment right not to testify. When you've got Congress and you've got a federal investigation, you'd better believe he's represented by lawyers and those lawyers are saying, “You're not going talk to anybody until there's some kind of deal on the table.” Now, another question here is what exactly do they want to talk to him about? This was a guy that worked on her campaign in 2008. And he was part of the team that was responsible for setting up that private email server in her home in New York in 2009. What do they want to know? Well, they want to know why did Hillary Clinton want to use a private email server. They're going to ask him questions about what did she say about why? What was his understanding about why it was important for her to have this set up? If, for example, he knew that she wanted to have classified information out of her access coming through her home, that would be terrible both for him and for her because it would show knowledge and it would show intent. They're also going to ask him, Carol, about whether or not he knew whether there was going to be classified or whether there was classified information that was sent. So that's going to be the nature of the questions and the type of things that they're going to be interested in asking this guy about.

COSTELLO: So we often hear Hillary Clinton's Republican opponents say that soon she will be led away in handcuffs. Right? How likely-- I mean, could that happen?

ROBBINS: Could? I mean, there are a lot of Republican pundits that are now kind of walking back on the fact that they said it could never happen that Donald Trump would be the Republican nominee. So could it? I suppose if there's some sort of smoking gun. But it's highly unlikely. Let's look at a case that many people remember, with Petraeus. Remember, he gave notebooks that had classified information in it to his mistress as she was writing a book about him. Now that case is a little bit different than the Clinton case because, first of all, there was absolutely no question that the information that he gave was classified. In this particular instance, it's not clear that the information that Clinton had on her server was actually classified, because it became classified retroactively. Secondly, Petraeus lied to the FBI during the investigation and that really made people angry, people inside the FBI, which is why they also went after him with a vengeance. So he was eventually found criminally liable for both classified information and for lying. Is Clinton gonna be led away in handcuffs? I highly, highly doubt it. While they do have immunity, they can certainly interview this guy that's a former staffer that was helping set up this private e-mail server. They're going to get information about what was Clinton talking about, what was his understanding about why they set it up, but it's really not clear whether or not the information was classified at all, Carol. [CNN, CNN Newsroom with Carol Costello, 3/3/16, via Media Matters​, 3/4/16]

NY Times Reported Clinton’s Server Showed No Signs Of Hacking

NY Times: Security Record Of Clinton's Email Server “Showed No Evidence Of Foreign Hacking.” Records of computer security logs from Hillary Clinton's private email server “showed no evidence of foreign hacking,” according to a New York Times report. The Times noted that Clinton aide Bryan Pagliano “provided agents the security logs,” and “told the agents that nothing in his security logs suggested that any intrusion occurred.” From a March 3 article:

A former aide to Hillary Clinton has turned over to the F.B.I. computer security logs from Mrs. Clinton's private server, records that showed no evidence of foreign hacking, according to people close to a federal investigation into Mrs. Clinton's emails.

The security logs bolster Mrs. Clinton's assertion that her use of a personal email account to conduct State Department business while she was the secretary of state did not put American secrets into the hands of hackers or foreign governments.

[...]

Mr. Pagliano told the agents that nothing in his security logs suggested that any intrusion occurred. Security logs keep track of, among other things, who accessed the network and when. They are not definitive, and forensic experts can sometimes spot sophisticated hacking that is not apparent in the logs, but computer security experts view logs as key documents when detecting hackers. [The New York Times, 3/3/16]

Fox Had Spent Months Repeatedly Claiming Clinton’s Server Was Definitely Hacked

Fox's Sean Hannity: “I Guarantee ... You're Going To Find Out Vladimir Putin, The Chinese, Somebody Has Those Emails.” Fox host Sean Hannity claimed, “I guarantee you, you are going to wake up one day, and you're going to find out Vladimir Putin, the Chinese, somebody has those emails.” From the August 5 edition of Premiere Radio Networks’ The Sean Hannity Show:

SEAN HANNITY (HOST): I guarantee you, you are going to wake up one day, and you're going to find out Vladimir Putin, the Chinese, somebody has those emails. They're gonna-- that means she's a compromised candidate. What does that mean? All right, Hillary Clinton broke the law. Hillary Clinton put classified information on her server, on her email system. Let's say Vladimir Putin has it. Let's say the Chinese have it. Let's say she's president. Let's say they're in the middle of negotiations. Let's say Vladimir digs into his briefcase and pulls out all the emails and says look what I got Hillary. You are going to do it my way, because the alternative for her is going to be jail if he releases it. What do you think Hillary is going to do? She's going to do whatever it takes to stay out of jail. She's compromised her ability to get secure information. And the country for that matter. [Premiere Radio Networks, The Sean Hannity Show, 8/5/15]

Fox’s Andrew Napolitano: There's A “Pretty High” Chance Russia’s Putin And The Chinese Hacked Clinton's Server. Fox’s Andrew Napolitano claimed “the chances of bad guys having [Clinton's] confidential, classified emails are pretty high” because one of Clinton's aides “had his emails hacked.” From the August 5 edition of Fox News’ Hannity:

SEAN HANNITY (HOST): So what are the odds that Putin, the Chinese, or somebody else hacked into that server?

ANDREW NAPOLITANO: Well, we already know that her most frequent emailer, her good friend nicknamed ‘The Prince of Darkness,’ Sid Blumenthal, had his emails hacked. And we already know that she emailed with Mr. Blumenthal more than anybody else. So the chances of bad guys having her confidential, classified emails are pretty high. [Fox News, Hannity, 8/5/15, via Media Matters, 3/3/16]

Fox’s K. T. McFarland: “I Think” The Russians, Chinese, And Iranians Were Reading Clinton's Emails In “Real Time” And “Knew Everything.” Fox contributor and national security analyst K.T. McFarland said that “the Russians, the Chinese, the Iranians, they knew what [the United States'] negotiating position was” during international talks because they were reading Clinton's emails in “real time” and “knew everything.” From the October 14 edition of Fox News' America's Newsroom:

BILL HEMMER (CO-HOST): As a national security analyst, do you believe, based on the president's statement the other night, that he was right, or indeed was the use of this server endangering national security, putting it at risk?

K.T. MCFARLAND: I've talked to intelligence officials, people and I've talked to people in the cyber world. And they've said, look, the Russians, the Chinese, the Iranians, they hacked into her stuff from the very beginning. They were reading in real time her emails. So, for example, every time the United States went into a negotiation, the Russians, the Chinese, the Iranians, they knew what our negotiating position was.

HEMMER: You think they knew everything?

MCFARLAND: I think they knew everything. [Fox News, America's Newsroom, 10/14/15]

Fox's Steve Doocy: It's A “Fact” That Clinton’s Server “Was Hacked ... By Russia And China And North Korea.” Fox co-host Steve Doocy said that Clinton's server being “hacked ... by Russia, and China, and North Korea, and other bad actors” was a “fact,” and wondered how the investigation into her server would be changed if “it is proven that ... other governments” obtained secrets “from her email device that was wide open.” From the February 1 edition of Fox News’ Fox & Friends:

STEVE DOOCY (CO-HOST): And Greta, given the fact that it sounds like she was hacked, not only by Russia, and China, and North Korea, and other bad actors as well, but how would this change in a legal way for her if it is proven that perhaps some American operators, CIA agents, or people like that, actually died because of secrets other governments got from her email device that was wide open?

GRETA VAN SUSTEREN: All right, well you say proven. I mean, I don't know whether any of that can be proven. But even if it's proven I don't see this having legal liability. I mean obviously there are all sorts of other implications. She was never supposed to have that server in her house. That violates the rules. [Fox News, Fox & Friends, 2/1/16]

Fox's Jesse Watters: “Just Ask The Chinese. ... They Probably Hacked Hillary's Server.” Fox producer Jesse Watters claimed, “The Chinese ... probably hacked Hillary's server” and had the contents of her emails. From the February 26 edition of Fox News’ Outnumbered:

SANDRA SMITH (CO-HOST): Everybody's promising a transparent campaign, Jesse. But let's see who follows through. Meanwhile, [Hillary Clinton] has still got a substantial lead in South Carolina ahead of the primary.

JESSE WATTERS: Yeah, she's going to smoke Bernie in South Carolina. You think there's going to be like a 47 percent kind of deal in these transcripts? Even if it is, there's no audio or video. So I don't think it's going to have huge effect. If we really want to find out what's in the transcripts, we should just ask the Chinese, they probably hacked Hillary's server and found it themselves. [Fox News,Outnumbered, 2/26/16]

Right-Wing Media Hyped Report FBI Will Begin Interviewing Clinton Aides

LA Times: Federal Prosecutors “Have Begun The Process Of Setting Up Formal Interviews” With Clinton Aides Over Email Practices. The Los Angeles Times reported that the federal prosecutors investigating Clinton's email server “have begun the process of setting up formal interviews with some of her longtime and closest aides.” The article said the planned meetings “are also an indication that much of investigators' background work ... is nearing completion.” From the March 27 article:

Federal prosecutors investigating the possible mishandling of classified materials on Hillary Clinton's private email server have begun the process of setting up formal interviews with some of her longtime and closest aides, according to two people familiar with the probe, an indication that the inquiry is moving into its final phases.

[...]

The interviews by FBI agents and prosecutors will play a significant role in helping them better understand whether Clinton or her aides knowingly or negligently discussed classified government secrets over a non-secure email system when she served as secretary of State.

The meetings also are an indication that much of the investigators' background work - recovering deleted emails, understanding how the server operated and determining whether it was breached - is nearing completion. [Los Angeles Times, 3/27/16, via Media Matters​, 3/28/16]

Fox's Andrew Napolitano: Clinton “Might Be A Criminal Defendant In A Felony Prosecution” For Her Email Setup. Discussing the LA Times report, Fox’s Andrew Napolitano claimed that Clinton “could be prosecuted for failure to safeguard secrets” in her email, and asserted that she “might be a criminal defendant in a felony prosecution” for her email setup. From the March 28 edition of Fox News’ Fox & Friends:

BRIAN KILMEADE (HOST): Federal prosecutors handling Hillary Clinton's email server investigation have started a new phase of the probe, setting up the formal interviews with some of her longtime and closest aides, and an interview with Hillary Clinton herself. So, what happens now? Here now to weigh in on this -- the guy's been all over this from day one -- Fox News senior judicial analyst, Judge Andrew Napolitano. Judge, what do you mean the interviews are just starting? They've been just accruing the background information to set them up on who they should be talking to one-on-one?

ANDREW NAPOLITANO: Precisely, Brian. The interview stage of people who are either potential targets, meaning they could have committed a crime and they might be prosecuted, or people with exceptional knowledge of the case who have not yet given anything voluntarily to the FBI is the last phase. There's 147 FBI agents that have been working on this for over a year. They have a mountain of evidence. They are now ready to test that evidence by asking questions of these aides around Hillary. There's about five of them and they are publicly known. They each have their own lawyers and they have to decide whether or not to go in. If they go in, they're not under oath. But it is very, very dangerous because if they mislead or lie to the FBI, that's a felony, the equivalent of perjury. And they can be prosecuted. And they do not know and their lawyers do not know what the FBI knows about them.

[...]

NAPOLITANO: Look, on her first day in office, Brian, she got a two-hour FBI tutorial which everybody gets who's entrusted with the government secrets. And among other things in the tutorial, she promised as a result and at the end of the tutoria,l under oath, that she would recognize secrets when she saw them and she had an absolute duty to safeguard secrets and she could be prosecuted for failure to safeguard secrets, even if that failure was negligent. The next day is when Bryan Pagliano began the migration of the two email streams over to her server in Chappaqua. Did she tell that to the FBI? Of course not.

[...]

KILMEADE: When are we going to find out what's going to go on, if anything?

NAPOLITANO: The timing is very, very treacherous. I would think that Democrats need to know whether or not they're about to nominate somebody for president who might be a criminal defendant in a felony prosecution before November. [Fox News, Fox & Friends, 3/28/16, via Media Matters​, 3/28/16]

MSNBC's Joe Scarborough: “The Scale Of This Is So Remarkable.” During a discussion of the LA Times report, MSNBC host Joe Scarborough referred to “the scale” of the investigation into Clinton's email arrangement as “so remarkable” and said, “I do not know how [FBI Director] James Comey doesn't do something definitive, election year or not.” From the March 28 edition of MSNBC’s Morning Joe:

MIKA BRZEZINSKI (CO-HOST): The Los Angeles Times reports this morning that the investigation into Hillary Clinton's email server is about to enter a new phase. The paper cites two sources familiar with the probe, who say that federal prosecutors have begun to step up formal interviews in the coming weeks with longtime Clinton aides.

[...]

JOE SCARBOROUGH (CO-HOST): The bar is a reckless use of classified information, and I will tell you if an FBI agent took a classified document out, and went and just left it in a coffee shop and then went back, you know, their career would be over. I can tell you also that if I had gone to an intel briefing and they had told me what happened, you know, in whatever program and then I went back to my office and I sent an email, as a congressman, out about the information that I learned in that intel briefing, they would be in my office in three hours and would say, “Congressman, you need to get an attorney because that's illegal.” And the scale of this is so remarkable. I do not know how [FBI Director] James Comey doesn't do something definitive, election year or not. [MSNBC, Morning Joe, 3/28/16, via Media Matters​, 3/28/16]

But Same LA Times Report Also Noted Little Chance Of Clinton Indictment

LA Times: “Legal Experts Believe Clinton Faces Little Risk Of Being Prosecuted For Using The Private Email System.” The March 27 Los Angeles Times report cited by Fox and MSNBC stated that “legal experts believe that Clinton faces little risk of being prosecuted for using the private email system to conduct official business.” The Times reported that experts say that “using a private email system was not banned at the time, and others in government had used personal email to transact official business,” and the article noted the “chances she will be found criminally liable are low.” From the article:

Many legal experts believe that Clinton faces little risk of being prosecuted for using the private email system to conduct official business when she served as secretary of State, though that decision has raised questions among some about her judgment. They noted that using a private email system was not banned at the time, and others in government had used personal email to transact official business.

The bigger question is whether she or her aides distributed classified material in email systems that fell outside of the department's secure classified system. But even if prosecutors determine that she did, chances she will be found criminally liable are low. U.S. law makes it a crime for someone to knowingly or willfully retain classified information, handle it in a grossly negligent manner or to pass it to someone not entitled to see it. [Los Angeles Times, 3/27/16, via Media Matters​, 3/28/16]

Media Ran With Washington Post Claim That About 147 FBI Agents Were Involved In Email Investigation

Wash. Post Investigative Report Used Anonymous Sources To Claim 147 FBI Agents Were Detailed To Investigation. The Washington Post's Robert O'Harrow Jr. published a March 27 article on the FBI's investigation into Clinton's private email server claiming, “One hundred forty-seven FBI agents have been deployed to run down leads, according to a lawmaker briefed by FBI Director James B. Comey.” [The Washington Post, 3/27/16; Media Matters, 3/29/15]

147 FBI Agent Figure Spreads Throughout Media. Numerous media outlets and reporters highlighted The Washington Post's 147 figure, including the Post's Chris Cillizza, who reacted to the number by writing “W-H-A-T?” and calling it “eye-popping.” Conservative magazine National Review referred to it as “a staggering deployment of manpower,” and Breitbart News wrote that the “FBI recently kicked its investigation into high gear.” [Media Matters, 3/29/16, 3/31/16]

Politico And NBC Reported The Number Was Wrong And The Post Issued Correction

Politico: 147 Figure Was “Greatly Exaggerated.” Politico's Josh Gerstein responded to the Washington Post report, writing, “The FBI does not have close to 150 agents working the investigation into former Secretary of State Hillary Clinton's email server, a source familiar with the matter told POLITICO Monday.” The anonymous source called the number “greatly exaggerated” but “declined to provide any further details about FBI staffing.” From the March 28 article:

The FBI does not have close to 150 agents working the investigation into former Secretary of State Hillary Clinton's email server, a source familiar with the matter told POLITICO Monday.

The official, who spoke on condition of anonymity, commented after the Washington Post reported that FBI Director James Comey told an unnamed member of Congress that 147 agents were working the Clinton investigation.

Asked about the Post report, the source said: “That number is greatly exaggerated.”

The source and other officials declined to provide any further details about FBI staffing or the status of the inquiry. [Politico, 3/28/16, via Media Matters​, 3/29/16]

Wash. Post Issued Correction, Citing Law Enforcement Officials Who Call The Figure “Too High,” And Said The Number Of Personnel Involved Was “Fewer Than 50.” The Washington Post issued a correction to its March 27 investigative report, stating, “Two U.S. law enforcement officials have since told The Washington Post that figure is too high ... the officials say the number of FBI personnel involved is fewer than 50.” From the March 29 correction:

CORRECTION: An earlier version of this article incorrectly said that Clinton used two different email addresses, sometimes interchangeably, as secretary of state. She used only hdr22@clintonemail.com as secretary of state. Also, an earlier version of this article reported that 147 FBI agents had been detailed to the investigation, according to a lawmaker briefed by FBI Director James B. Comey. Two U.S. law enforcement officials have since told The Washington Post that figure is too high. The FBI will not provide an exact figure, but the officials say the number of FBI personnel involved is fewer than 50. [The Washington Post, 3/29/16, via Media Matters​, 3/29/16]

NBC News Quoted Source Saying “There Are Currently About 12 FBI Agents Working On The Case.” NBC News' Ari Melber quoted a “former federal law enforcement official with direct knowledge of the Clinton investigation” who said, "’There are currently about 12 FBI agents working full-time on the case.’" The source criticized the Post's estimate of “fewer than 50” personnel, saying that "’an estimate anywhere near 50 agents is also off base.’" Melber also quoted a former FBI official who called the 147 figure "’a ridiculous number,’" continuing, "’You need an act of terrorism to get 50 agents working on something.’" From the March 30 article:

A former federal law enforcement official with direct knowledge of the Clinton investigation tells MSNBC an estimate anywhere near 50 agents is also off base.

“There are currently about 12 FBI agents working full-time on the case,” says the source, who would only speak anonymously about an open investigation.

A former FBI official, also speaking anonymously, says many in the law enforcement community view the large estimates of people assigned to the case as completely improbable.

“147 was such a ridiculous number,” said the source, adding that 50 also sounded unrealistic for this kind of inquiry. “You need an act of terrorism to get 50 agents working on something,” said the former FBI official. [NBC News, 3/30/16, via Media Matters3/31/16]

Wash. Post Brushed Off Reporting Mistake, Said “Mistakes Are Made.” The Post’s deputy managing editor Tracy Grant responded to a Media Matters inquiry about the paper's use of anonymous sources in light of the error by stating that “mistakes are made.” Grant continued that “this case does not cause us to feel that a policy change is necessary.” From the response:

The Washington Post's policy on confidential sourcing states clearly that we prefer named sources over unnamed sources, but it also acknowledges that sometimes people will only speak on the condition of anonymity. Nothing is published from an unnamed source without at least one editor knowing who that source is. In this case, two senior editors knew who the sources were. Sometimes, despite rigorous reporting and vetting, mistakes are made and when that happens we correct quickly and completely as we did in this circumstance. We are always open to looking at our procedures for ensuring the integrity of our journalism, but this case does not cause us to feel that a policy change is necessary. [Media Matters, 3/30/16, 3/31/16]

May 2016: Conservative Media Hyped Dubious Hacker Claim, FBI Reported Lack Of Evidence To Charge Clinton

Right-Wing Media Pushed Romanian Hacker’s Dubious Claim He Hacked Clinton’s Server

International Business Times: “Michael Lehel Lazar … Claims He Compromised The Email Server Of Democratic Presidential Candidate Hillary Clinton.” The International Business Times reported that Romanian hacker Marcel Lehel Lazar, also known as “Guccifer,” claimed to have “compromised the email server” of Hillary Clinton. From a May 5 article:

Marcel Lehel Lazar, who has previously hacked into the email accounts of high-profile American political figures — in one case leaking private paintings of former president George W. Bush — now claims he compromised the email server of Democratic presidential candidate Hillary Clinton, something the former first lady has always denied.

Lazar, who goes by the name “Guccifer,” is currently in prison in Virginia after he was extradited from his home country of Romania earlier this year. However, the hacker agreed to speak to reporters from Fox News and NBC while in jail about his claim that he hacked Clinton's email server in 2013.

Besides compromising email accounts linked to Bush, Lazar accessed Colin Powell’s email account, leaking details about his private life. In addition, he was also able to breach the email account of one of Clinton’s closest aides, Sidney Blumenthal. It was through this account Lazar says he was able to finally access Clinton’s email server.

[…]

Lazar was the first to reveal Clinton’s personal email address (hdr22@clintonemail.com), but the hacker has not released any proof that he breached the email server.

“There is absolutely no basis to believe the claims made by this criminal from his prison cell,” Brian Fallon, Clinton’s press secretary, told NBC. “In addition to the fact that he offers no proof to support his claims, his descriptions of secretary Clinton’s server are inaccurate. It is unfathomable that he would have gained access to her emails and not leaked them the way he did to his other victims.”

An FBI investigation into Clinton’s email server has reportedly found no evidence of a security breach, but Lazar has claimed getting access was “very easy.” He told NBC the server was “completely unsecured” and “it was like an open orchid on the internet.” [International Business Times, 5/5/16]

Fox’s Catherine Herridge: Lazar “Claimed He Easily – And Repeatedly – Breached Former Secretary Of State Hillary Clinton’s Personal Email Server.” Fox News chief intelligence correspondent Catherine Herridge reported that she had interviewed Lazar, who “claimed he was able to access the server – and provided extensive details about how he did it and what he found.” Herridge acknowledged that “Lazar's claims cannot be independently verified,” but she claimed that the server “may have an electronic record that would confirm or disprove Guccifer’s claims.” From her May 4 FoxNews.com article:

The infamous Romanian hacker known as “Guccifer,” speaking exclusively with Fox News, claimed he easily – and repeatedly – breached former Secretary of State Hillary Clinton’s personal email server in early 2013.  

“For me, it was easy ... easy for me, for everybody,” Marcel Lehel Lazar, who goes by the moniker “Guccifer,” told Fox News from a Virginia jail where he is being held.

Guccifer’s potential role in the Clinton email investigation was first reported by Fox News last month. The hacker subsequently claimed he was able to access the server – and provided extensive details about how he did it and what he found – over the course of a half-hour jailhouse interview and a series of recorded phone calls with Fox News.

[…]

While Lazar's claims cannot be independently verified, three computer security specialists, including two former senior intelligence officials, said the process described is plausible and the Clinton server, now in FBI custody, may have an electronic record that would confirm or disprove Guccifer’s claims. [FoxNews.com, 5/4/16]

Wash. Times: “‘Guccifer’ Claims He Hacked Hillary Clinton’s ‘Completely Unsecured’ Server.” The Washington Times reported, “A Romanian hacker who is being extradited to the U.S. told NBC News that he gained access to Hillary Clinton’s ‘completely unsecured’ private email server.” The Times noted that the hacker “first exposed Mrs. Clinton’s private email address and released to The Smoking Gun email exchanges,” which, according to the paper, makes “his claim plausible.” From the May 4 article:

A Romanian computer hacker who is being extradited to the U.S. told NBC News that he gained access to Hillary Clinton’s “completely unsecured” private email server.

Marcel Lehel Lazar, better known by the name “Guccifer,” first exposed Mrs. Clinton’s private email address and released to The Smoking Gun email exchanges between her and longtime adviser Sidney Blumenthal, making his claim plausible.

Mr. Lazar, who is in custody in the U.S. on hacking charges, said Mrs. Clinton’s server was like “an open orchid on the Internet … there were hundreds of folders.” In a separate interview with Fox News, he said the hacking “was easy … easy for me, for everybody.”

[…]

Mrs. Clinton has always said her server was not breached. In a statement Wednesday night, the Clinton campaign said Mr. Lazar had no credibility, referring to “this criminal [speaking] from his prison cell.”

The statement said “it is unfathomable that he would have gained access to her emails and not leaked them” as he did in other cases.

But NBC reported, citing “a source with knowledge of the probe into Clinton’s email setup” that U.S. investigators intend to question Guccifer about the Clinton server. [The Washington Times, 5/4/16]

But Hacker Couldn’t Prove His Claim And FBI Found No Evidence Server Was Hacked

NBC News: Lazar “Could Provide No Documentation To Back Up His Claims” And “The FBI’s Review Of The Clinton Server Logs Showed No Sign Of Hacking.” NBC News reported that Lazar “could provide no documentation to back up his claims, nor did he ever release anything online supporting his allegations, as he had frequently done with past hacks.” Moreover, “The FBI's review of the Clinton server logs showed no sign of hacking.” From a May 5 article:

The Romanian hacker who first exposed Hillary Clinton's private email address is making a bombshell new claim — that he also gained access to the former Secretary of State's “completely unsecured” server.

[…]

Lazar was extradited last month from Romania to the United States to face charges he hacked political elites, including Gen. Colin Powell, a member of the Bush family, and former Clinton advisor Sidney Blumenthal.

A source with knowledge of the probe into Clinton's email setup told NBC News that with Guccifer in U.S. custody, investigators fully intend to question him about her server.

When pressed by NBC News, Lazar, 44, could provide no documentation to back up his claims, nor did he ever release anything online supporting his allegations, as he had frequently done with past hacks. The FBI's review of the Clinton server logs showed no sign of hacking, according to a source familiar with the case. [NBC News, 5/5/16]

Politico: “An Internal Review Of Clinton’s Email Records Did Not Indicate Traces Of Hacking.Politico reported on May 4 that the hacker “did not provide documentation to support his claims,” and an “internal FBI review of Clinton’s email records did not indicate traces of hacking, a source familiar with the situation told POLITICO.” [Politico, 5/4/16]

FBI Reportedly Found “Scant Evidence” Clinton Broke Law With Email

Wash. Post: FBI Has Found “Scant Evidence” Clinton Broke Law. The Washington Post reported that the FBI and prosecutors had “so far found scant evidence” that Clinton “intended to break classification rules.” From the May 5 article:

Prosecutors and FBI agents investigating Hillary Clinton’s use of a personal email server have so far found scant evidence that the leading Democratic presidential candidate intended to break classification rules, though they are still probing the case aggressively with an eye on interviewing Clinton herself, according to U.S. officials familiar with the matter.

FBI agents on the case have been joined by federal prosecutors from the same office that successfully prosecuted 9/11 conspirator Zacarias Moussaoui — and who would handle any Edward Snowden case, should he ever return to the country, according to the U.S. officials familiar with the matter. And in recent weeks, prosecutors from the U.S. Attorney’s Office in the Eastern District of Virginia and their FBI counterparts have been interviewing top Clinton aides as they seek to bring the case to a close. [The Washington Post, 5/5/16]

CNN: Investigators “Haven’t Found Evidence” That Clinton “Willfully Violated The Law.” CNN reported that investigators involved with the investigation “haven't found evidence to prove that Clinton willfully violated the law.” From the May 5 report:

Some of Hillary Clinton's closest aides, including her longtime adviser Huma Abedin, have provided interviews to federal investigators, as the FBI probe into the security of her private email server nears completion, U.S. officials briefed on the investigation tell CNN. The investigation is still ongoing, but so far investigators haven't found evidence to prove that Clinton willfully violated the law the U.S. officials say.

In recent weeks, multiple aides have been interviewed -- some more than once, the officials said. A date for an FBI interview of Clinton has not been set, these officials said, but is expected in the coming weeks. Abedin has cooperated with the probe, the officials said. Lawyers for Abedin declined to comment. The officials say the interviews of Clinton and her aides would be a routine part of an investigation like this. [CNN.com, 5/5/16]

State Department Said Sending “Foreign Government Information” Through Unclassified Systems Does Not “Amount To Mishandling The Information”

Top State Department Official: Officials Are “Allowed To Send ‘Foreign Government Information’ Through The Government’s Unclassified Computer Systems.” The New York Times revealed that the assistant secretary of state for legislative affairs, Julia Frifield, sent a letter to three Senate Democrats stating that “officials were in fact allowed to send ‘foreign government information’ through the government’s unclassified computer systems,” and that “‘Department officials of necessity routinely receive such information through unclassified channels.’” Frifield’s letter “went on to say that using ‘foreign government information’ in unclassified emails ‘does not amount to mishandling the information,’” and that these correspondences are only made classified if they have to be released to the public. The Times noted that “nearly three-quarters” of Clinton’s now-classified emails are “classified because they contained what is called ‘foreign government information’” and were publicly released. From the May 11 report:

Last week, in an apparent attempt to dispel criticism that many of the emails were improperly sent, a top State Department official argued in a letter to three Senate Democrats that the nation’s diplomats and officials were in fact allowed to send “foreign government information” through the government’s unclassified computer systems.

“Department officials of necessity routinely receive such information through unclassified channels,” said the letter, dated May 2 and written by the assistant secretary of state for legislative affairs, Julia Frifield.

“For example, diplomats engage in meetings with counterparts in open settings, have phone calls with foreign contacts over unsecure lines, and email with and about foreign counterparts via unclassified systems.”

The letter went on to say that using “foreign government information” in unclassified emails “does not amount to mishandling the information.”

The State Department, unlike some other federal agencies, does not have the authority to redact that category of information even if it is required to release documents under the Freedom of Information Act.

Thus, the only way the State Department could withhold “foreign government information” in the emails being released under court order was to classify it, according to the letter. [The New York Times, 5/11/16]

But Right-Wing Media Figures Had Falsely Claimed Automatic Classification

Fox's Catherine Herridge: Classified Email Chain On Clinton’s Server “Raises Security Implications.”  Fox News' Catherine Herridge suggested in a report that an email chain which included Hillary Clinton contained conversations about an “Afghan national's ties to the CIA,” was a violation of “an executive order signed by President Obama [which] said unauthorized disclosures are 'presumed to cause damage to the national security.'” [FoxNews.com, 2/17/16]

Fox’s Andrew Napolitano: “Foreign Intel” Emails “As A Matter Of Law [Are] Always In The Classified Category.” While discussing Clinton’s email use, Fox News judicial analyst Andrew Napolitano claimed emails that “say 'foreign intel -- this came from a foreign government,' … as a matter of law is always in the classified category.” From the September 28 edition of Fox News’ America’s Newsroom:

ANDREW NAPOLITANO: She is going to argue, if she is indicted or this gets up to another level, that because the word classified was not stamped on it, it wasn't classified. Guess what, it's never stamped classified. It will say 'confidential,' 'secret,' or 'top secret.' And many of them are so obviously secret that they don't have to say 'confidential,' 'top secret,' or 'secret' because it will say 'foreign intel -- this came from a foreign government,' which as a matter of law is always in the classified category. [Fox News, America’s Newsroom, 9/28/15]

FBI Director Called Email Probe “Investigation” And Media Claimed “Security Inquiry” Term Was A “Clinton Claim”

FBI Director James Comey: “I’m Not Familiar With The Term ‘Security Inquiry.’” In a May 11 press conference, FBI Director James Comey was asked about the phrase “security inquiry” being used to describe the ongoing probe into Clinton’s email use while at the State Department. Comey responded that he was “not familiar with the term ‘security inquiry,’” and characterized the probe as an “investigation,” saying “it’s in [the FBI’s] name.” From a May 11 ABC News article:

Even though Hillary Clinton has repeatedly described the FBI probe over her use of a private email server as a “security inquiry,” FBI Director James Comey today questioned the use of that phrase.

“I don’t know what that means," Comey told reporters today in Washington, D.C. “We’re conducting an investigation. That’s the bureau’s business. That’s what we do.”

One reporter noted that former Secretary of State Clinton often refers to it as a “security inquiry.”

The word “investigation” -- "it’s in our name,” Comey responded. “And I’m not familiar with the term ‘security inquiry.’”

In the past several months, Comey has repeatedly referred to this probe as an “investigation,” including in a legal document filed in a freedom of information lawsuit related to her email case, related to Clinton's use of a private email server for official communication during her tenure as secretary of state. [ABC News, 5/11/16]

Fox’s Catherine Herridge: “Today, Director Comey Seemed To Challenge Mrs. Clinton’s Go-To Explanation For The Bureau’s Investigation Of Her Email Practices.” Fox’s Catherine Herridge claimed that the phrase “security inquiry” is “Mrs. Clinton’s go-to explanation for the bureau’s investigation of her email practices,” also noting, “critics say” that the use of the term “security inquiry” is “an apparent effort to downplay the serious nature of the FBI criminal probe.” From the May 11 edition of Fox News’ Special Report:

BRET BAIER (HOST): Director James Comey is also undercutting one of Clinton’s favorite phrases about the probe. Here’s chief intelligence correspondent, Catherine Herridge.

HERRIDGE: Bret, the FBI director James Comey does regular on the record question and answer sessions with reporters known as “a pen and pad,” because there are no cameras or audio recordings. Today, Director Comey seemed to challenge Mrs. Clinton's go-to explanation for the bureau’s investigation of her email practices.

[...]

HERRIDGE: But, that's the very phrase Clinton uses repeatedly, and her critics say an apparent effort to downplay the serious nature of the FBI criminal probe. [Fox News, Special Report, 5/11/16]

Politico: “Clinton And Her Team Have Made A Point Of Not Describing The FBI’s Work As An ‘Investigation.’” Politico reported that “Comey said he wasn't familiar with the term ‘security inquiry’ that Clinton and her aides have used,” and that “Clinton and her team have made a point of not describing the FBI’s work as an ‘investigation,’ but alternatively as a ‘security review’ or ‘security inquiry.’” From Politico’s May 11 article:

Clinton and her team have made a point of not describing the FBI's work as an “investigation,” but alternately as a “security review” or “security inquiry.” They've also noted that the issue was referred to the FBI not as a criminal matter but as an intelligence breach.

However, in response to a question Wednesday, Comey said he wasn't familiar with the term “security inquiry” that Clinton and her aides have used. The FBI chief said he considers the work agents are doing to be an “investigation.”

“It's in our name. I'm not familiar with the term 'security inquiry','” the director said.

However, he passed up the chance to repeat a reporter's characterization of it as a “criminal” probe. [Politico, 5/11/16]

The Hill: “FBI Head Challenges Clinton’s Description Of Email Probe.” The Hill reported in a piece headlined “FBI head challenges Clinton's description of email probe” that while “Clinton and her allies have repeatedly called the probe a routine ‘security inquiry’ … Director James Comey told reporters that wasn’t an accurate description.” From The Hill’s May 11 report:

The head of the FBI on Wednesday appeared to challenge Hillary Clinton’s characterization of the federal investigation into her private email server.

Clinton and her allies have repeatedly called the probe a routine “security inquiry.”

But Director James Comey told reporters that wasn’t an accurate description.

“It's in our name. I'm not familiar with the term 'security inquiry,' ” Comey said at a roundtable with reporters, according to Politico.

“We’re conducting an investigation ... That’s what we do,” he said, according to Fox News.

Comey reportedly declined to say whether or not the investigation is “criminal” in nature. [The Hill, 5/11/16]

But Terms “Inquiry” And “Security Referral” Were Originally Used By NY Times To Describe The Probe

NY Times: “It Was A ‘Security Referral,’ Pertaining To Possible Mishandling Of Classified Information, Officials Said, Not A ‘Criminal Referral.’” In an article titled “Inquiry Sought in Hillary Clinton’s Use of Email,” The New York Times issued a correction stating, “It was a ‘security referral … officials said, not a ‘criminal referral.’” From The Times’ July 26 correction to the July 23 article:

An article in some editions on Friday about a request to the Justice Department for an investigation regarding Hillary Clinton’s personal email account while she was secretary of state referred incorrectly, using information from senior government officials, to the request. It was a “security referral,” pertaining to possible mishandling of classified information, officials said, not a “criminal referral.” [The New York Times, 7/26/15]

Joint Statement From Two Inspectors General Called Probe A Security Referral. In a joint statement released on July 24, the Inspectors General of the Intelligence Community (IG IC) and the Department of State clarified that “the IC IG did not make a criminal referral -- it was a security referral.” From the statement:

IC IG made a referral detailing the potential compromise of classified information to security officials within the Executive Branch. The main purpose of the referral was to notify security officials that classified information may exist on at least one private server and thumb drive that are not in the government's possession. An important distinction is that the IC IG did not make a criminal referral- it was a security referral made for counterintelligence purposes. The IC IG is statutorily required to refer potential compromises of national security information to the appropriate IC security officials. [Statement from the Inspectors General of the Intelligence Community and the Department of State Regarding the Review of Former Secretary Clinton's Emails, 7/24/15]

NY Times: “The F.B.I’s Case Began As A Security Referral From The Inspectors General Of The State Department And The Nation’s Intelligence Agencies. The New York Times on May 12 reiterated that the investigation into Clinton’s email server “began as a security referral” and that term originated with the “inspectors general of the State Department and the nation’s intelligence agencies.” [The New York Times, 5/12/16]

Fox Claimed Clinton Used Computer Without Password

Fox’s Doocy: Clinton Had A Computer “That Did Not Have A Password.” Fox News host Steve Doocy claimed that Clinton “had a standalone computer” while secretary of state “that did not have a password on it.” From the May 27 edition of Fox News’ Fox & Friends:

STEVE DOOCY (CO-HOST): And meanwhile in a deposition for Judicial Watch, it was revealed yesterday that apparently Hillary Clinton had a standalone computer in her office that did not have a password on it.

AINSLEY EARHARDT (CO-HOST): Wow.

DOOCY: So that opens you up to hacking.

[...]

Just remember, she did not have a password on her computer. [Fox News, Fox & Friends, 5/27/16]

But The Computer Was Never Installed

NY Times: Clinton Aide Said Idea Was Proposed But Never Happened. The New York Times reported that an aide had indeed proposed Clinton “set[] up a desktop computer in her office that would not be connected to the department’s system.” However, the idea “was abandoned” because the aide said Clinton was “very comfortable checking her emails on a BlackBerry, but she’s not adept or not used to checking her emails on a desktop.” From the May 27 article:

Lewis A. Lukens, a former State Department administrative official, said in a sworn deposition last week that after Mrs. Clinton became secretary of state in 2009, he had proposed accommodating her by setting up a desktop computer in her office that would not be connected to the department’s system. That would have allowed her to send and receive email on a personal account, Mr. Lukens said in the deposition, which he gave as part of a lawsuit brought by Judicial Watch, a conservative legal advocacy group. The group released a transcript of the deposition on Thursday.

But that idea was abandoned, Mr. Lukens testified, after an aide to the secretary told him that Mrs. Clinton was “very comfortable checking her emails on a BlackBerry, but she’s not adept or not used to checking her emails on a desktop.” [The New York Times, 5/27/16]

Media Figures Pointed To State Dept. IG Report To Claim Clinton Misled About Colin Powell Also Using Private Email

Wash. Post’s Chris Cillizza: “This Is Really Important, Clinton Is The First Secretary Of State To Ever Use Private Email Exclusively To Conduct Her Business. Period.” Supposedly showing “indisputable facts” that Clinton “got wrong” in her response to the State Department’s Office Of Inspector General report, Washington Post reporter Chris Cillizza disputed Clinton’s statement that her use of “personal email” was “not at all unprecedented.” He commented in a May 26 blog post (emphasis original):

Er ... yes, previous secretaries of state have used personal email addresses while in office — Colin Powell most notably and extensively. But, and this is really important, Clinton is the first secretary of state to ever use a private email address exclusively to conduct her business. Period. That was and is unprecedented. [The Washington Post, The Fix, 5/26/16]

MSNBC’s Andrea Mitchell Repeatedly Claimed Powell Used Government Email. Purporting to “fix the record” during an interview with Rep. Adam Schiff (D-CA), MSNBC’s Andrea Mitchell claimed on May 26 that the OIG report showed Powell “used both personal and official email.” [MSNBC, Andrea Mitchell Reports, 5/26/16]

Cillizza: “Very Important Difference” Between Clinton And Past Secretaries Is Clinton Was Only One To “Exclusively Use A Private Email Address.” Cillizza claimed that the IG report showed that “Clinton is the first and, to date, only secretary of state to exclusively use a private email address and server to conduct her business as the nation’s top diplomat” and claimed that Powell “maintained both a private and a government-issued email address.” From a May 25 blog post (emphasis original):

There are two very important differences among Clinton, Secretary of State John F. Kerry, and former secretaries Powell and Condoleezza Rice when it comes to email practices.

The first is that Clinton is the first and, to date, only secretary of state to exclusively use a private email address and server to conduct her business as the nation’s top diplomat. All of the other names above maintained both a private and a government-issued email address. That alone doesn’t make her guilty. But it does make her unique. [The Washington Post, The Fix, 5/25/16]

But State Dept. IG Report Said Both Clinton And Powell Used Private Email

Office Of Inspector General Report: Powell “Did Not Employ A Department Email Account.” According to a report from the U.S. Department of State Office of Inspector General on email records management and cybersecurity requirements, “During Secretary Powell’s tenure, the Department introduced for the first time unclassified desktop email and access to the Internet on a system known as OpenNet, which remains in use to this day. Secretary Powell did not employ a Department email account, even after OpenNet’s introduction.” [U.S. Department of State Office of Inspector General report, “Office of the Secretary: Evaluation of Email Records Management and Cybersecurity Requirements,” May 2016]

IG Report: Clinton And Powell Both “Used Non-Department Systems On An Exclusive Basis.” According to the report, “OIG identified many examples of staff using personal email accounts to conduct official business,” but “OIG could only identify three cases where officials used non-Departmental systems on an exclusive basis for day-to-day operations. These include former Secretaries Powell and Clinton, as well as Jonathan Scott Gration, a former Ambassador to Kenya.” [U.S. Department of State Office of Inspector General report, “Office of the Secretary: Evaluation of Email Records Management and Cybersecurity Requirements,” May 2016]

Clinton Campaign: Clinton “Thought It Was Allowed, As Commercial [Account] Was For Powell.” On Twitter, Clinton press secretary Brian Fallon stated: “Our take on State IG report being misreported in places so want to explain. When we liken Clinton’s email use to other secretaries… We mean that just as she used nongov't account for work, so did others at State. And that's bc rules did not bar use of nongovt email … Having said that, it's true her nongovt account was on her family's server, as opposed to commercial email account. That was distinct … But she still thought it was allowed, as commercial acct was for Powell. Now, though, State says it would've urged against that setup … To which we say, we agree it was a mistake. If she had chance to do it again, she would have used a state.gov account.” [Twitter, 5/26/16]

June 2016: AP Claimed Clinton Compromised CIA Assets, Officers

AP Claimed Experts Said Clinton Exposed CIA Names

AP: “Security Experts” Say CIA Names Could Have Been Compromised With Server. The Associated Press reported that “security experts” claimed names of CIA officers and assets could have been “compromised not only by hackers,” but also “by the release itself of tens of thousands of [Clinton’s] emails.” The article quotes Stewart Baker, identified only as a “Washington lawyer who spent more than three years as an assistant secretary of the Homeland Security Department and is former legal counsel for the National Security Agency,” saying it is “entirely plausible” foreign entities hacked her server. From the June 8 article:

The names of CIA personnel could have been compromised not only by hackers who may have penetrated Hillary Clinton's private computer server or the State Department system, but also by the release itself of tens of thousands of her emails, security experts say.

Clinton, the presumptive Democratic presidential nominee, turned over to the State Department 55,000 emails from her private server that were sent or received when she was secretary of state. Some contained information that has since been deemed classified, and those were redacted for public release with notations for the reason of the censorship.

At least 47 of the emails contain the notation “B3 CIA PERS/ORG,” which indicates the material referred to CIA personnel or matters related to the agency. And because both Clinton's server and the State Department systems were vulnerable to hacking, the perpetrators could have those original emails, and now the publicly released, redacted versions showing exactly which sections refer to CIA personnel.

“Start with the entirely plausible view that foreign intelligence services discovered and rifled Hillary Clinton's server,” said Stewart Baker, a Washington lawyer who spent more than three years as an assistant secretary of the Homeland Security Department and is former legal counsel for the National Security Agency. [The Associated Press, 6/8/16]

But Only Source AP Cited Backing Up Claim Was Major Republican Donor

Only Source Backing Up AP’s Claim Was Major GOP Donor. Stewart Baker, the so-called “expert” quoted in the piece, was an appointee of President George W. Bush and has donated thousands of dollars to Republican candidates over the past two decades, including Bush and GOP presidential candidates Sen. Bob Dole, Sen. John McCain, Gov. Mitt Romney, Sen. Ted Cruz, and Gov. Chris Christie. The other two sources cited in the AP report dismissed the claims that CIA information was disclosed through Clinton’s email. One anonymous “U.S. official” said the risk of names being revealed is “theoretical and probably remains so at this time.” A second source, Federation of American Scientists' Project on Government Secrecy director Steven Aftergood, asserted, “I don’t think there’s any particular vulnerability here.” The AP also noted that Aftergood “said even if any identities were revealed, they might be the names of analysts or midlevel administrators, not undercover operatives.” [Media Matters, 6/8/16]

AP Claimed Clinton Aide Said Clinton Didn’t Want “Anybody” To See Her Work Emails

AP: Clinton “Did Not Want The State Department Emails” To Be “Accessible.” The Associated Press reported on a deposition of Clinton aide Huma Abedin from the conservative group Judicial Watch regarding Clinton’s emails. The AP originally wrote that Abedin told investigators that Clinton did not want her State Department emails accessible to “anybody” while serving as secretary of state, writing Clinton “did not want the State Department emails that she sent and received on her private computer server to be accessible.” [Media Matters, 6/29/16]

Abedin Was Referring Specifically To Clinton’s Personal Emails, Not Her Work-Related Emails

Clinton Aide: Clinton Did Not Want Her “Private Personal Emails Being Accessible.” A transcript of the deposition released by Judicial Watch showed Abedin was referring specifically to Clinton’s private email, not her work-related emails. Abedin said, “I understand this to her not wanting her private -- her private personal e-mails being accessible.” [Judicial Watch, 6/28/16]

AP Corrects Article To Reflect What Aide Said. The Associated Press later updated its article to reflect Abedin’s distinction. The article now reported that Clinton “did not want the private emails that she mixed in with State Department emails on her private computer server to be accessible to ‘anybody,’ according to transcripts released Wednesday.” [The Associated Press, 6/29/16, via Media Matters, 6/29/16]