Media have frequently sought to scandalize Hillary Clinton’s use of a private server as secretary of state by connecting the server to retroactively classified emails she sent or received. But recently released FBI documents regarding the department’s investigation into Clinton’s use of the private server conclusively show that the interagency classification dispute would have occurred regardless of whether she had used a State Department email account and resulted in large part from career State Department officials sending information in good faith that was later deemed classified.
FBI Released Memorandum Summarizing Investigation That Determined “No Charges Are Appropriate” Regarding Clinton Server
NY Times: “The Documents Offer The Most Detailed Account Of Mrs. Clinton’s Role” With Regard To Her Server. The Times reported on September 2:
On Friday, the F.B.I. released its interview with Mrs. Clinton, along with a memorandum summarizing the investigation into her use of a private email server that contained classified information. The New York Times is reviewing the documents and will update this story with more information.
The document summarizing the Democratic presidential candidate’s interview, known in the F.B.I. as a 302 report, runs only a dozen pages. The memorandum is lengthier, and goes into greater detail about aspects of the case. The materials were presumably provided to James B. Comey, the F.B.I. director, who later decided to not recommend charges in the case.
The documents offer the most detailed account of Mrs. Clinton’s role from the bureau’s yearlong investigation into whether she or her aides broke the law by using a private system – clintonemail.com – to send tens of thousands of emails about government business, including classified matters. [The New York Times, 9/2/16]
FBI Memo Details How Career State Officials Sent Emails Received By Clinton That Were Later Deemed Classified
Career State Officials Were Among Those Who Sent Information Later Deemed Classified That Were Received By Clinton. According to the FBI’s memorandum, U.S. government employees “responsible for initiating classified e-mail chains included State Civil Service employees, Foreign Service employees, Senior Executive Service Employees, Presidential employees, and non-State elected officials.” Those emails were sent on unclassified systems either directly or indirectly to Clinton. Even if Clinton had not had a personal server, there would still have been a dispute over the classification of the materials. [Clinton Email Investigation, FBI, July 2016, page 22]
Public Affairs Officials Sent Talking Points Based On Reporting From Country Desk Officers, Trusted Them Not To Introduce Classified Information. According to the FBI’s memorandum, some of the emails containing information later deemed classified came from Public Affairs officials who “relied upon reporting from country desk officers to generate talking points and believed the country desk officers were experienced in protecting sensitive information within their reporting.” The memo also confirms that some of the emails deemed classified may have originated with Public Affairs officials and were “reports by the news media regarding sensitive or controversial topics.” [Clinton Email Investigation, FBI, July 2016, page 23]
Other Emails Later Deemed Classified Were Sent Because Of Need To “Quickly Elevate Information” When Recipients Did Not Have Access To Classified Accounts. According to the FBI’s memorandum, “Individuals, including those in the State Operations Center (Ops Center), who were responsible for passing information to high-level State officials, worked to identify and disseminate the information they deemed critical for review by State leadership. These individuals noted that such information was generally sent on State unclassified email systems because of the need to quickly elevate information at times when the intended recipients did not all have immediate access to classified e-mail accounts.” [Clinton Email Investigation, FBI, July 2016, page 23]
TOP SECRET/Special Access Program Emails Originated With State Department Employees And Were Received By Clinton. According to the FBI’s memorandum, the “Investigation identified seven e-mail chains comprised of 22 emails on Clinton’s server classified by the [United States Intelligence Community” as TOP SECRET/SAP… Only internal State emails regarding the SAP were sent to Clinton’s server.” [Clinton Email Investigation, FBI, July 2016, page 23]
State Employees Used “Their Best Judgment” To Avoid Sending Classified Information Through Unclassified Systems. According to the FBI’s memorandum, “[w]hen interviewed by the FBI, authors of the emails stated that they used their best judgment in drafting the messages and that it was common practice at State to carefully word emails on UNCLASSIFIED networks so as to avoid sensitive details or ‘talk around’ classified information.” [Clinton Email Investigation, FBI, July 2016, page 24]
Media And Experts Have Explained 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 Post, 8/27/15]
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 Press, 8/26/15]
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 Yorker, 8/18/15]