4) Did she send classified information, knowingly or unknowingly, through this private email server?
I’m starting with the second controversy because this is what I think she is most likely to get indicted for. For now, let’s put aside questions of whether or not her even having a private email server was legal. Although this would not be a controversy at all if Hillary had simply used a state.gov email address.
There are several sub questions being asked under this controversy, they are in red.
So how did this issue of classified emails come up anyway? Let’s go back to Clinton’s original comments when first asked about her private email server.
QUESTION: Were you ever — were you ever specifically briefed on the security implications of using — using your own email server and using your personal address to email with the president?
CLINTON: I did not email any classified material to anyone on my email. There is no classified material. So I’m certainly well-aware of the classification requirements and did not send classified material.
Interestingly enough, the issue of whether there was specifically classified material on her private server was first brought up by Hillary herself!
After Hillary turned over her 30,000+ emails to the State Department in December 2014, she actually called on them to make her “work-related emails public for everyone to see.” In March 2015, once it was revealed to the public that she exclusively used a private email, she made the above statements regarding potentially sensitive information on her server.
In July 2015, two inspectors general who were involved in the review and release of Hillary’s emails asked the Justice Department to open an investigation into whether sensitive information was mishandled. On January 29th, 2016, three days before the Iowa Caucus, the State Department announced for the first time that highly classified information had been sent through her private email server, information that it considered the highest level of top secret classification (and even above top secret) and could not be released to the public.
Hillary immediately disagreed with that assessment from the State Department, and has demanded that they release all her emails to the public.
So what’s going on here?
Are there really dozens of highly classified government secrets on Hillary’s private email server… and why is she of all people demanding that they be released?
Hillary’s Side: No, there are not highly classified secrets on her server. America’s classification system is, in fact, broken.
While originally saying that she did not “email any classified material to anyone on my email”, after the State Department announced that her server did in fact contain what they considered classified information, she responded with this at the Iowa State Fair.
CLINTON: “The State Department has confirmed that I did not send nor receive material marked classified or send material marked classified,” she said a moment later.
“I am repeating the facts and the facts are I did not send nor did I receive material marked classified.”
Notice the change in rhetoric, it’s no longer that she didn’t send classified material, but that it was not *marked* classified when she sent or received it. In other words, the emails she sent or received from her private server she did not know or did not consider to be classified at the moment they were sent. These emails were only classified later, after she left as being Secretary of State. She is no longer disagreeing with the presence of now classified information on her private server, but questions the timeline and method by which they were determined classified now. She has repeatedly called the classification of her emails “over-classification run amok.”
So now the question is – were these emails actually classified because they contain top secret information that Clinton should have never emailed in the first place, what’s considered information “born classified”, or were the emails all pretty innocuous but got swept up in our broken system of over-classifying information?
Almost everyone in the government actually agrees that our system for classifying information is a complete mess, in large part because federal agencies retain the right to classify documents after the fact, or retroactively. It’s so agreed on that it’s one of the few things that brought Congress together to sign a bill in 2010 called The Reducing Over-Classification Act . This makes it incredibly likely that the now over 2000 emails that have been considered classified by the State Department include many documents that probably don’t need to be classified. Although the most recent revised estimate is 104 classified emails.
This is supported by Senator Dianne Feinstein (D) – California, who is one of the few people alive that read what the State Department considered to be classified emails. She said, “There’s no question that they are over-classifying this stuff.”
Maybe this is why Clinton is comfortable continuing to take this stand.
CLINTON: “I took the unprecedented step of asking that the State Department make all my work-related emails public for everyone to see.”
FBI’s Side: While the system for classifying emails is undeniably broken and confusing, Clinton’s over-classification defense is a tough case to make given that the Inspector General has identified some of these emails as beyond top secret, in a category called SAP, or Special Access Program. There are at least two emails which are considered TS/SCI – Top Secret/Sensitive Compartmented Information. Sources who are not authorized to speak on the record have said the information in these two emails surrounds the movement of North Korean missiles and a drone strike.
These are some of our nation’s most closely guarded secrets.
How can that be a case of retroactive, over-classification? The Inspector General took on this attack directly in a released memo.
“These emails were not retroactively classified by the State Department; rather these emails contained classified information when they were generated and, according to IC classification officials, that information remains classified today. This classified information should never have been transmitted via an unclassified personal system.”
Senator Richard Burr – (R) North Carolina, who has also read all 22 e-mails, concurred with the Inspector General. “They are definitely sensitive. Anybody in the intelligence world would know that the content was sensitive.” Was he reading different emails than Senator Feinstein?
However, Clinton has dismissed the Inspector General’s report – and has gone as far as to suggest that the Inspector General is in fact colluding with the Republicans to continue a partisan attack against her. Clinton has said she only viewed classified information in hard copy in her office. If she was traveling, she used other secure channels.
Whether or not this is true, this revelation has only been said by Clinton presidential campaign communications director Jennifer Palemieri who sent this email seeking to reassure supporters after the Inspector General’s Report:
“Hillary didn’t send any classified materials over email: Hillary only used her personal account for unclassified email,” Palemieri said in the message. “No information in her emails was marked classified at the time she sent or received them. She viewed classified materials in hard copy in her office or via other secure means while traveling, not on email.”
Unfortunately, there’s no way to know for sure who is right until we see the emails.
But according to government security experts, the type of information that could receive something like an SAP or a TS/SCI designation is sensitive enough that most senior government officials would immediately recognize it as such. Did Hillary just not realize that she may have been discussing some of America’s deepest secrets?
So let’s assume for a moment that there is in fact at least one email on her private server that contains incredibly top secret information that she knows about, a very believable scenario given that she was our nation’s Secretary of State. Why does she continue to demand that the State Department release all her emails? Does she really want us to see her classified emails, and it’s the State Department that doesn’t? Or is her asking the State Department to release everything simply political posturing, because she knows they can’t?
Inversely, maybe she really doesn’t know (or think) that there is classified information on her private server. She did say her lawyers were in fact in charge of determining which of her emails were work-related and which were personal. So maybe she genuinely doesn’t know if any of her emails were specifically classified material.
But how inclined are we to really believe that? That Hillary Rodham Clinton – First lady, Senator and Secretary of State – didn’t know that she may have discussed the highest secrets of our government over email. While she was the Secretary of State.
Believe it or not, this may be the argument that acquits her of any criminal charges. We’re about to get there.
*Digression for a relevant personal anecdote*
I actually got a taste of the US government’s email system during my internship at Sandia National Laboratories in Livermore, California last summer. Upon starting my internship, I was given a “sandia.gov” email, which I could only access from a computer on-site and with a randomly generated password each time. Every time before I could send an email through my sandia.gov email, a pop-up dialogue would ask me, “Is there any classified information in this message?” and if I clicked “Yes” it would take me to a range of classification options I could choose to mark the email with – sensitive, , confidential, secret, top secret etc, if I said “No” it would just send the email.
Nothing I ever sent was classified (except maybe when I emailed my boss telling him I was leaving work early because I was sick, but actually drove to Sacramento to go sky-diving). But it lends me perspective on how the FBI might be prosecuting this case. Was her private email server even set up to ask her that question about classification any time she sent an email? And if it wasn’t, was the recipient, someone hopefully with an official “.gov” email, marking it classified when they got it? Is that their responsibility? Questions I don’t really know the answer to, but some thoughts to keep in mind.
*It’s also possible there are two different email systems, Sandia Labs operates under the Department of Energy while she is in the Department of State, but I can’t imagine they are too different, if at all.