“The fact is that I had zero emails that were classified.”
During the contest between Trump and Clinton, we wrote 16 fact checks on the email issue, frequently awarding Pinocchios to Clinton for legalistic parsing. But in light of the Trump investigation, Clinton is trying to draw a distinction between Trump’s current travails and the probe that targeted her.
It’s worth reviewing what we know now about the emails that Clinton received on her private server. After FBI Director James B. Comey in 2016 announced there would be no criminal charges brought against Clinton, congressional hearings and several more investigations that received little media attention revealed new details that, to some extent, mitigates what Comey said at the time.
As shown in an FBI photo of some of the documents seized from Trump, many have clear markings indicating they contained highly sensitive classified information. Clinton, in her tweet, suggests none of her emails were marked classified. That’s technically correct. Whether those emails contained classified information was a major focus of the investigation, but a review of the recent investigations, including new information obtained by the Fact Checker, shows Clinton has good reason for making a distinction with Trump.
What Comey said
At a July 5, 2016, news conference, Comey said: “From the group of 30,000 emails returned to the State Department, 110 emails in 52 email chains have been determined by the owning agency to contain classified information at the time they were sent or received.” He added that out of “thousands of emails we found that were not among those produced to State, agencies have concluded that three of those were classified at the time they were sent or received, one at the Secret level and two at the Confidential level.” Separately, he said 2,000 additional emails were “up-classified” so redactions could be made to make them suitable for public disclosure.
This statement has generally been translated in news reports as the FBI determining that 113 emails contained classified information.
Referring to seven email chains that concerned issues classified at the “Top Secret/Special Access Program” level, Comey said: “There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation.”
The classification dispute
Note that Comey said this assessment was “determined by the owning agency.” That meant an intelligence agency, such as the CIA, had decided information in the email was classified, even if the email itself had not been marked classified. As the Fact Checker disclosed in 2016, intelligence officials believed there were serious shortcomings in how the State Department handled sensitive communications.
The State Department has both classified and unclassified systems — known informally as the “high side” and the “low side.” The classified system has tight controls, often housed in what is known as a sensitive compartmented information facility (SCIF); it is not possible to “cut and paste” from the classified system into the unclassified system. Clinton’s private email system was designed to deal with the unclassified communications, similar to the unclassified state.gov email account.
But sometimes classified information seeped into email exchanges. In one instance, a State Department official forwarded a newspaper article; then in subsequent exchanges, aides revealed sensitive details of a secret program as they discussed the shortcomings of that public report. Ultimately, the email chain ended up in Clinton’s inbox.
“The senders used unclassified emails because of ‘operational tempo,’ that is, the need to get information quickly to senior State Department officials at times when the recipients lacked access to classified systems,” said a nearly 600-page Justice Department inspector general report released in June 2018 that critically examined Comey’s decision to announce the results of the Clinton probe himself. “To accomplish this, senders often refrained from using specific classified facts or terms in emails and worded emails carefully in an attempt to avoid transmitting classified information.”
Many of the emails in question were sent late at night or on weekends, the report said. One prosecutor who worked on the case told the IG: “The problem was the State Department was so screwed up in the way they treated classified information that if you wanted to prosecute Hillary Clinton, you would have had to prosecute 150 State Department people.”
“There was no evidence that the senders or former Secretary Clinton believed or were aware at the time that the emails contained classified information,” the Justice IG report said. “The emails in question were sent to other government officials in furtherance of the senders’ official duties. There was no evidence that the senders or former Secretary Clinton intended that classified information be sent to unauthorized recipients, or that they intentionally sought to store classified information on unauthorized systems.”
David Kendall, an attorney for Clinton, told the Fact Checker: “The State Department personnel who originated the emails did not think their content merited classification, and not a single one of the over 33,000 emails bore classification markings.”
The emails with classified markings
In his news conference, Comey said “three of those were classified at the time they were sent or received.” At the time, he said one was marked “secret” and two “confidential,” but at a congressional hearing two days later, he said all were marked “confidential,” the lowest form of classification. Moreover, he acknowledged that markings — a (C) — were contained in the body of the text and, contrary to standard practice, there was no header at the top alerting someone that this was classified material. He told lawmakers that without a header, it was “a reasonable inference” that this material was not classified.
The emails concerned proposed talking points for Clinton when she called a foreign leader. The State Department later said the (C) markings should have been removed as a matter of course once Clinton decided to place the call but through “human error,” they had not been deleted. In her FBI interview, Clinton said she did not know what (C) meant and “speculated it was a reference to paragraphs ranked in alphabetical order.” The IG report said the FBI missed the (C) markings until late in the investigation.
In her Twitter thread, Clinton said, “Comey admitted he was wrong after he claimed I had classified emails” — a reference to his remarks at the congressional hearing.
“When he testified before the House Oversight Committee, he was forced to concede the markings he pointed to were ambiguous, did not comply with federal classification guidelines, and did not contain proper classification markings,” Kendall said.
Comey did not respond to a request for comment.
The Trump State Department investigations
During the Trump administration, two more investigations were conducted of the Clinton emails — first when Rex Tillerson was secretary of state and then again when Mike Pompeo was the chief diplomat.
Kendall said that during the Tillerson investigation, he was told “that there was cause to believe she had been responsible for 41 mishandlings of classified information (both infractions and violations) — 40 related to particular emails and one related to the use of a private email server itself.” That’s lower than the 110 emails cited by Comey, but he said it’s possible each email chain might be considered a security infraction. Comey had referred to 52 email chains.
“At the end of the process, on June 29, 2017, the Tillerson State Department agreed there was no classified material in the 40 emails cited, but found that her use of a personal email server itself was a security violation, without respect to any particular email,” Kendall said, providing a copy of the June 29, 2017, letter sent by State saying Clinton had “no individual culpability” for the email security violations.
“Though not publicized at the time, these findings were not surprising, since both the Secretary and her State Department colleagues based their emails on the work the Department was doing and did not believe any of the emails contained classified information,” Kendall said. “The Secretary and her colleagues knew how to use (and did) State’s high-side secure system for transmitting classified information and properly marked such communications when appropriate.”
The second investigation started in 2019. Kendall said he was informed State “suspected” Clinton was responsible for “12 classified spillages” based on emails that had not been among the earlier incidents that were investigated. Perhaps it’s a coincidence, but the total number of security incidents investigated by State — 52 — matches the 52 email chains mentioned by Comey.
The unclassified version of the Diplomatic Security investigation that was publicly released notes that “a typical security violation involves premarked classified information discovered contemporaneously with the incident. None of the emails at issue in this review were marked as classified.”
“Again, we presented evidence refuting each of these allegations,” Kendall said. “We were completely successful and were notified on Oct. 7, 2019, that the Department had found the Secretary did not ‘bear any individual culpability’ for these 12 alleged incidents, although again this result was not announced publicly.” He provided a copy of the State Department letter, dated Aug. 22, 2019.
The unclassified version of the probe says it found “91 valid violations attributable to 38 individuals” but does not mention names.
The report was critical of Clinton’s decision to have a private server — “it added an increased degree of risk of compromise as a private system lacks the network monitoring and intrusion detection capabilities of State Department networks.” But the report concluded: “Instances of classified information being deliberately transmitted via unclassified email were the rare exception and resulted in adjudicated security violations. There was no persuasive evidence of systemic, deliberate mishandling of classified information.”
In other words, both State Department probes under Trump knocked Clinton for maintaining a private server for State Department communications — but did not hold her responsible for mishandling classified information.
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