How The NY Times Tried To Turn An Interagency FOIA Fight Into A “Clinton Scandal”

New information and widespread media criticism of the highly flawed New York Times story that falsely implied Hillary Clinton was the target of a criminal investigation over her email practices as secretary of state confirm the paper conflated two different stories to scandalize a routine bureaucratic process. In fact, the current Freedom of Information Act (FOIA) review of Clinton's emails that has led to interagency disputes over retroactive classification would have taken place regardless of whether Clinton used a private email account.

NY Times Used Flawed Report To Conflate FOIA Review With Old Story About Clinton's Private Email Account

NY Times: DOJ Investigation Sought "In Connection With The Personal Email Account" Of Hillary Clinton. In July, the Times published an article -- which it subsequently had to correct twice -- about a security referral the Inspector General of the Intelligence Community (IG IC) made to the executive branch about whether there was any classified material on Clinton's email account during her time as secretary of state. The Times linked this specific review, which was triggered by a FOIA request, to “her use of a private email account for official State Department business” :

Two inspectors general have asked the Justice Department to open an 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.

The request follows an assessment in a June 29 memo by the inspectors general for the State Department and the intelligence agencies that Mrs. Clinton's private account contained “hundreds of potentially classified emails.” The memo was written to Patrick F. Kennedy, the under secretary of state for management.

It is not clear if any of the information in the emails was marked as classified by the State Department when Mrs. Clinton sent or received them.

But since her use of a private email account for official State Department business was revealed in March, she has repeatedly said that she had no classified information on the account.

The initial revelation has been an issue in the early stages of her presidential campaign. [The New York Times7/23/15]

Other Media Quickly Realized These Were Separate Stories -- And The New One Was Not Really About Clinton

Newsweek's Eichenwald: NY Times Committed The “Journalistic Sin” Of “Accusation By False Association.”  Writing in Newsweek, former NY Times reporter Kurt Eichenwald heavily critiqued the paper for its “recklessness” in trying to create a “Clinton scandal” out of “current bureaucratic processes” related to a FOIA process the former secretary has no part in. As explained by Eichenwald, the memos that the NY Times based its report on “in no way discuss Clinton, her handling of emails or anything approaching those topics” :

Yes, there is memo after memo after memo, which the Times gloats were given to it by a senior government official. (For those who have thoughts of late-night meetings in parking garages or the Pentagon Papers, they were unclassified documents. Reporters obtain those kinds of records through the complex, investigative procedure of asking the press office for them.) And all of them are about the exact same thing: the process being used by current FOIA officials reviewing the emails of a former official is messed up. That's like criticizing the former owner of a car for the work conducted by the new owner's mechanic.

So what was the point of the memo written by Linick and McCullough? The memo itself is very clear: “The Department should ensure that no classified documents are publically released.”

In terms of journalism, this is terrible. That the Times article never discloses this is about an after-the-fact review of Clinton's emails conducted long after she left the State Department is simply inexcusable. That this all comes from a concern about the accidental release of classified information--a fact that goes unmentioned--is even worse. In other words, the Times has twisted and turned in a way that makes this story seem like something it most decidedly is not. This is no Clinton scandal. It is no scandal at all. It is about current bureaucratic processes, probably the biggest snooze-fest in all of journalism.

The heavy breathing of deception or incompetence by the Times doesn't stop there. In fact, almost every paragraph at the top of the story is wrong, misleading or fundamentally deceptive. 

[...]

[A]gain, what those memos are actually discussing is the way that the FOIA office is handling its review of the former secretary of state's emails for public release. They in no way discuss Clinton, her handling of emails or anything approaching those topics. [Newsweek7/24/15]

Vox's Allen: The Story Actually Revolves Around “A Bureaucratic Turf War.”  According to Vox's Jonathan Allen, the NY Times  “foul[ed]” up the story in part by focusing on the former secretary, instead of recognizing that “this is a bureaucratic fight about how the State Department has handled the emails, not about Hillary Clinton.”  As explained by Allen, a referral of this sort was not dependent on Clinton's use of a private account -- it was triggered by a FOIA review and “the fact that agencies are fighting over what State should release is prima facie evidence that the question of what should be classified doesn't have a cut-and-dried answer” :

In order to understand the nuances of the Times's story, you have to look at the bigger picture of the fight over Clinton's email within the government.

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.

[...]

The intelligence community tends to have a pretty broad definition of what should be withheld from the public, and the fact that agencies are fighting over what State should release is prima facie evidence that the question of what should be classified doesn't have a cut-and-dried answer.

Government officials who deal with top-secret information have three computer systems. One is like everyone else's, one is for a low level of classification, and one is for the highest level of classification. You can't send from a higher-level system to a lower-level system. In order to do that, you would have to personally write classified material into an email on a less-secure system. It's an imperfect safeguard, but a pretty good one. Clinton had aides at State who produced physical copies of classified documents for her, so there was no need for her to deal with such material over email. If she did, that's a sign of poor judgment on her part. But that's not what this particular issue is focused on.

Ultimately -- at least for now -- this is a bureaucratic fight about how the State Department has handled the emails, not about Hillary Clinton. It's part of the story, but doesn't, as the Times first wrote, get to the guts of the question of whether Clinton acted improperly. [Vox, 7/28/15]

NY Times Was Subsequently Unable To Explain What The IG Referral Had To Do With Original 'Private Server' Article

MSNBC's Matthews: “So In Other Words, She`s Being Charged Here...Because She Used Her Private Email Account?”  On the July 24 edition of MSNBC's Hardball, host Chris Matthews repeatedly questioned the author of the original NY Times article, Michael Schmidt, as to why Clinton's private server was newly relevant. When Matthews asked Schmidt, “How can [Clinton] be blamable, then, if [the email] was not marked classified and it was sent by someone else,” Schmidt replied, “Well, she had a personal email account that was operating outside the State Department” : 

SCHMIDT: Well, in the government, there`s sort of two systems. There`s a classified system and an unclassified system. And a lot of people were emailing her from the unclassified system. But what happened, according to the inspector generals, is that there was information from the intelligence community that was being passed to her from other people that was not necessarily marked classified, but it was indeed classified at the time, and it ended up on her -- in her email.

MATTHEWS: Well, how can she be blamable, then, if it was not marked classified and it was sent by someone else? She was passive to it, even in terms of knowledge of it being classified.

SCHMIDT: Well, she had a personal email account that was operating outside the State Department. She wasn`t inside the State Department. Her account was outside the State Department.

MATTHEWS: How can there be criminality if there`s no knowledge that it was classified, because you say it wasn`t necessarily -- it wasn`t marked, and it was sent from -- if you get a letter in the mail, whether it`s email or it`s snail mail, somebody sends it to you, how can you be responsible for that?

SCHMIDT: That`s the issue.

MATTHEWS: Criminally.

SCHMIDT: The issue here is that this is classified information that was ending up in places that it wasn`t supposed to. And these inspector generals turned to the Justice Department and said, Look, something -- something -- this is not the way this is supposed to operate. You need to take a look at this.

MATTHEWS: OK, can you imagine a regular newspaper reader, like I am -- and I read The Times every morning, practically every morning -- picking this up? You`d think Hillary Clinton had done something wrong -- criminal referral, something to do with her, something to do with her emails. But yet now you`re telling me this is mail she received, mail that wasn`t marked 'classified.' And I`m wondering where could there be even the imagination of criminality here?

SCHMIDT: Well, there are rules and laws and regulations on how classified information should be handled. There are ways that --

MATTHEWS: You mean she should have put a stopper on this if it came in? Even if it wasn`t marked classified, she should have found a way of rejecting that as if it was spam? I mean, how was she proposed to prevent that from coming in?

SCHMIDT: But by operating her email outside of the system, she exposed herself to receiving...

MATTHEWS: OK, well, that`s the...

SCHMIDT: ... this type of information.

MATTHEWS: So in other words, she`s being charged here, you`re-- being referred to here over to the Justice Department, because she used her private email account, basically because that system itself made her vulnerable to this kind of misuse by people -- of -- mishandling is the right word -- mishandling of classified information?

SCHMIDT: Correct.

MATTHEWS: So this is -- in other words, we`re going back to story one, way back in the beginning of the story. They`re now finally charging her or referring to the Justice Department a possible complaint that she used her private email for official and even classified business.

SCHMIDT: Well, what they`re saying is that she had classified information on there and --

MATTHEWS: Yes, that`s a question of just looking for what they figured they`d find because if she used the email -- her own personal email for everything, it would occasionally include stuff that somebody would send to her that wasn`t marked classified, and therefore, she wouldn`t have been able to detect it and somehow send it back where it came from, I guess.

SCHMIDT: I guess I`d bring you back to the statement that the inspectors general has put out when they said this classified information should never have been transmitted via an unclassified personal system.

MATTHEWS: OK. Well --

SCHMIDT: I mean, that`s them. That`s the inspector generals. [MSNBC, Hardball, 7/24/15]

Experts Continue To Explain Why This Was Never A “Clinton Scandal” : The IG Referral Would Have Occurred Even If The Emails Were Exchanged On A 'State.gov' Account

Washington Post's David Ignatius: “After Talking With A Half-Dozen Knowledgeable Lawyers, I Think This 'Scandal' Is Overstated.”  According to multiple experts Washington Post columnist David Ignatius spoke to, the presence of classified information on unclassified systems is “common” and “inevitable, because the classified systems are often cumbersome and lots of people have access to the classified e-mails or cables.” Ignatius added that the spillage of classified information onto unauthorized systems is a separate issue from what Clinton specifically did, writing, "[T]here's no legal difference whether Clinton and her aides passed sensitive information using her private server or the official 'state.gov' account that many now argue should have been used":

Does Hillary Clinton have a serious legal problem because she may have transmitted classified information on her private e-mail server? After talking with a half-dozen knowledgeable lawyers, I think this “scandal” is overstated. Using the server was a self-inflicted wound by Clinton, but it's not something a prosecutor would take to court.

“It's common” that people end up using unclassified systems to transmit classified information, said Jeffrey Smith, a former CIA general counsel who's now a partner at Arnold & Porter, where he often represents defendants suspected of misusing classified information.

[...]

[E]xperts in national-security law say there may be less here than it might appear.

First, experts say, there's no legal difference whether Clinton and her aides passed sensitive information using her private server or the official “state.gov” account that many now argue should have been used. Neither system is authorized for transmitting classified information. Second, prosecution of such violations is extremely rare. Lax security procedures are taken seriously, but they're generally seen as administrative matters.

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. [Washington Post8/27/15]

Associated Press: “The Distinction Matters Little In The Context Of Classified Information” Whether Or Not Clinton Used Private Email Or A 'State.gov' Account. As explained by the AP, the focus by “Clinton's critics” on her use of a private server is misplaced. While the State Department continues to dispute whether or not any of the emails sent or received via Clinton's private email can now be classified retroactively, "[e]xperts in government secrecy law see almost no possibility of criminal action":

Experts in government secrecy law see almost no possibility of criminal action against Hillary Clinton or her top aides in connection with now-classified information sent over unsecure email while she was secretary of state, based on the public evidence thus far.

Some Republicans, including leading GOP presidential candidate Donald Trump, have called Clinton's actions criminal and compared her situation to that of David Petraeus, the former CIA director who was prosecuted after giving top secret information to his paramour. 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.

“How can you be on notice if there are no markings?” said Leslie McAdoo, a lawyer who frequently handles security-clearance cases.

Clinton's critics have focused on the unusual, home-brew email server Clinton used while in office and suggested that she should have known that secrets were improperly coursing through an unsecure system, leaving them easily hackable for foreign intelligence agencies. But to prove a crime, the government would have to demonstrate that Clinton or aides knew they were mishandling the information -- not that she should have known.

[...]

Although political controversy has centered on Clinton's use of private email instead of an unsecured government account, the distinction matters little in the context of classified information. Clinton says State Department rules allowed her to use private email and officials knew about it. [Associated Press, 8/31/15]

Associated Press: “The Transmission Of Now-Classified Information Across Hillary Rodham Clinton's Private Email Is Consistent” With Past State Department Practice. As reported by the AP, information that may become classified later is frequently shared on unclassified State Department systems, a routine occurrence that predated the current administration. Not only was Clinton's “transmission of now-classified information” over an unclassified system “consistent” with agency practice, according to experts, concerns arise equally whether the retroactively classified information is  “carried over the government system or a private server” :

The transmission of now-classified information across Hillary Rodham Clinton's private email is consistent with a State Department culture in which diplomats routinely sent secret material on unsecured email during the past two administrations, according to documents reviewed by The Associated Press.

Clinton's use of a home server makes her case unique and has become an issue in her front-running campaign for the Democratic presidential nomination. But it's not clear whether the security breach would have been any less had she used department email. The department only systematically checks email for sensitive or classified material in response to a public records request.

[...]

Such slippage of classified information into regular email is “very common, actually,” said Leslie McAdoo, a lawyer who frequently represents government officials and contractors in disputes over security clearances and classified information.

What makes Clinton's case different is that she exclusively sent and received emails through a home server in lieu of the State Department's unclassified email system. Neither would have been secure from hackers or foreign intelligence agencies, so it would be equally problematic whether classified information was carried over the government system or a private server, experts say.

In fact, the State Department's unclassified email system has been penetrated by hackers believed linked to Russian intelligence. [Associated Press8/26/15]

The New Yorker's Jeffrey Toobin: “The Process Is Out Of Clinton's Control.”  Citing the late, longtime member of Congress Daniel Patrick Moynihan's analysis of the government's tendency toward over-classification, The New Yorker's Jeffrey Toobin wrote, “It's not only the public who cannot know the extent or content of government secrecy. Realistically, government officials can't know either--and this is Hillary Clinton's problem.” Toobin added that “the absurdity of the current system” was “underline[d]” by the fact that a discussion about a newspaper article on the publicly acknowledged drone program is the basis for retroactive classification of one of Clinton's emails:

It's not only the public who cannot know the extent or content of government secrecy. Realistically, government officials can't know either--and this is Hillary Clinton's problem. In investigating only a small portion of her e-mails, government investigators have already flagged more than three hundred that are potentially classified. They will surely find more. As Moynihan noted, government bureaucracies have every incentive to over-classify. It's the risk-averse approach, and there's no penalty for erring on the side of caution. Besides, over-classification makes their work seem more important.

In one case, according to media reports, one of Clinton's potentially classified e-mail exchanges is nothing more than a discussion of a newspaper story about drones. That such a discussion could be classified underlines the absurdity of the current system. But that is the system that exists, and if and when the agencies determine that she sent or received classified information through her private server, Clinton will be accused of mishandling national-security secrets.

[...]

Still, the investigative wheels are now turning, and the process is out of Clinton's control. In most political controversies about documents, the best response for a politician is simply to disclose them in order to diffuse the issue. But that option is not available to Clinton. The relevant agencies are now reviewing the documents in order to determine whether they contain classified information; if they find that to be the case (and they will), Clinton will not have the right to make those documents public; the public will never know whether she was discussing newspaper stories or the identity of covert assets. With many agencies reviewing thousands of documents, this process is guaranteed to take months rather than weeks. Thus, the process--and the attention to the issue--will drag on. [New Yorker8/18/15]