Myths And Facts On Hillary Clinton's Email And Reports Of "Top Secret" Materials

››› ››› LIS POWER & KATIE SULLIVAN

Media are exploiting news that two emails Democratic presidential candidate Hillary Clinton turned over to the State Department from her time as secretary of state may be retroactively classified as "top secret" to push myths about Clinton's handling of government information and scandalize her email use. Here are the facts.

FACT: None Of The Emails Sent To Clinton Were Labeled As "Classified" Or "Top Secret"

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

FACT: Experts Have Debunked Any Comparison Between Clinton's Email Use And David Petraeus' Crimes

FACT: IG Referral To Justice Department Was Not Criminal, And FBI Isn't Targeting Clinton Herself

Intelligence Community IG Says Two Emails From Clinton's Server Should Be Marked "Top Secret"

Intelligence Community Inspector General Says Two Emails From Clinton's Server Contain "Top Secret" Information. The inspector general for the Intelligence Community (ICIG), I. Charles McCullough, reportedly informed leaders of key congressional oversight committees that two classified emails previously discovered on Clinton's server contain top secret information. As McClatchy reported:

The inspector general for the Intelligence Community notified senior members of Congress that two of four classified emails discovered on the server Clinton maintained at her New York home contained material deemed to be in one of the highest security classifications - more sensitive than previously known.

The notice came as the State Department inspector general's office acknowledged that it is reviewing the use of "personal communications hardware and software" by Clinton's former top aides after requests from Congress. [McClatchy DC, 8/11/15]

State Department: It Remains Unclear Whether Material In Two Emails Should Be Retroactively Classified. NBC noted that the State Department is still working with the intelligence community to determine whether the information in the two emails should in fact be labeled as classified:

Clinton aides have maintained that nothing on her server was classified at the time she saw it, suggesting that classified messages were given the label after the fact.

John Kirby, a spokesman for the State Department, said that was the case with two emails, adding that it remained unclear "whether, in fact, this material is actually classified."

"Department employees circulated these emails on unclassified systems in 2009 and 2011, and ultimately some were forwarded to Secretary Clinton," Kirby said Tuesday. "They were not marked as classified." [NBC News, 8/12/15]

MYTH: Clinton Received Emails Marked As "Top Secret"

Fox Anchor Bret Baier: "'Top Secret' Was Marked On The Emails" Sent To Clinton. During the August 11 edition of Special Report, host Bret Baier claimed that "'top secret' was marked on the emails" that Clinton received during her time as secretary of state:

MIKE EMANUEL: The breaking news of the hour is that the intelligence inspector general has told top lawmakers on Capitol Hill that two of those four classified emails from Hillary Clinton's personal server were top secret in nature. And they're still studying the other two to figure out what the relevant classification should be. Bret?

BRET BAIER: 'Top secret' marked on the emails. FBI inquiry obviously already ongoing to classified information improperly stored, they said, on her private server. And also, Mike, a thumb drive held by her attorney?

EMANUEL: Well that's absolutely correct. All of her emails have been stored by her personal attorney. And a lot of folks on Capitol Hill have been asking, why is that still out there? Why is that not controlled by the intelligence community or by the State department, this existing in the possession of a personal attorney. And so lots more questions on Capitol Hill and throughout the intelligence community this evening. [Fox News, Special Report8/11/15]

NBC's Andrea Mitchell: ICIG "Contradicted Clinton's Repeated Claim That Nothing On Those Private Emails Was Classified." On the August 12 edition of NBC's Today, Andrea Mitchell argued that the ICIG's statement "contradicted" Clinton's "repeated past denials":

ANDREA MITCHELL: More controversy for Hillary Clinton today indeed. Despite her repeated past denials, the intelligence community's Inspector General now says two of her emails should have been classified 'top secret,' the highest level of U.S. intelligence, even as the FBI is finally getting control of that private server.

VOICEOVER OF MITCHELL: Hillary Clinton, in New Hampshire Tuesday, has aides confirm she has turned over her private server to the FBI. In addition, her attorney David Kendall gave the FBI two thumb drives containing her emails.  All of this, as the intelligence community's watchdog contradicted Clinton's repeated claim that nothing on those private emails was classified.

[CLIP OF HILLARY CLINTON: I did not email any classified material to anyone on my email. There is no classified materials.]

MITCHELL: Clinton has said there was no classified markings on any of her emails.

[CLIP OF CLINTON: I am confident that I have never sent nor received any information that was classified at the time it was sent and received.]

MITCHELL: But the Inspector General has now told Congress two of Clinton's emails should have been classified 'top secret,' with code words indicating electronic eavesdropping from satellites, so sensitive it could not be shared with foreign allies. [NBC, Today8/12/15]

FACT: None Of The Emails Sent To Clinton Were Labeled As "Classified" Or "Top Secret"

Government Officials: None Of The Emails Were Marked As "Classified" When They Were Sent. The Washington Post reported that when the ICIG first "found information that should have been designated as classified" in four emails from Clinton's server -- two of which he now says contain "top secret" information -- government officials acknowledged that the emails were not marked as classified when they were sent (emphasis added):

The Justice Department said Friday that it has been notified of a potential compromise of classified information in connection with the private e-mail account that Hillary Rodham Clinton used while serving as secretary of state.

A Justice official said the department had received a "referral" on the matter, which the inspector general of the intelligence agencies later acknowledged came from him.

The inspector general, I. Charles McCullough III, said in a separate statement that he had found information that should have been designated as classified in four e-mails out of a "limited sample" of 40 that his agency reviewed. As a result, he said, he made the "security referral," acting under a federal law that requires alerting the FBI to any potential compromises of national security information.

[...]

Officials acknowledged that none of the e-mails reviewed so far contain information that was marked classified when they were sent. But a new inquiry would prolong the political controversy Clinton is facing over her un­or­tho­dox e-mail system. [The Washington Post7/24/15]

IG Memo On Classified Information In Emails: "None Of The Emails ... Had Classification Or Dissemination Markings." A memo from the ICIG clearly stated that "none of the emails we reviewed had classification or dissemination markings":

Since the referenced 25 June 2015 notification, we were informed by State FOIA officials that there are potentially hundreds of classified emails within the approximately 30,000 provided by former Secretary Clinton.  We note that none of the emails we reviewed had classification or dissemination markings, but some included IC-derived classified information and should have been handled as classified, appropriately marked, and transmitted via a secure network.  Further, my office's limited sampling of 40 of the emails revealed four contained classified IC information which should have been marked and handled at a SECRET level. [Inspector General of the Intelligence Community, 7/23/15]

MYTH: Emails Weren't Marked As "Classified" Because Clinton Used A Private Server Instead Of State Dept. Email

Fox & Friends' Steve Doocy: Emails "Were Never Classified" Because Clinton Used A Private Server Rather Than The State Department's Email System. Throughout the August 12 edition of Fox & Friends, co-host Steve Doocy repeatedly 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" (emphasis added):

STEVE DOOCY: 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 & Friends8/12/15]

FACT: 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:

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]

Clinton Campaign: Emails Originated From "Unclassified .Gov Email System." A fact sheet released by the presidential campaign for the former secretary of state 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]

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" (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]

MYTH: Hillary Clinton's Email Use Is Comparable To David Petraeus' Crimes

Doocy: Clinton's Email Use Is "The Same Thing That David Petraeus Pleaded Guilty To." On the August 12 edition of Fox News' Fox & Friends, Doocy hyped the debunked claim that Clinton's email use was similar to Gen. David Petraeus' illegal mishandling of confidential information:

DOOCY: Big question is -- Will this Department of Justice go ahead and fully prosecute? Because, keep in mind, she had unauthorized, for a home server, top secret documents, which was a direct violation of the U.S. laws. It's the same that David Petraeus pleaded guilty to. He had the same stuff at his house. She had at it at her house. He got, you know, they ran him up the flag pole, will they do the same for her? [Fox News, Fox & Friends,8/12/15]

Fox Judicial Analyst Implies Clinton's Email Use Is Worse Than Petraeus' Crimes. Appearing on the August 12 edition of Fox & Friends, senior judicial analyst Andrew Napolitano claimed "it's a grave situation" for Hillary Clinton, arguing that Gen. Petraeus only had "the lowest level materials in a desk drawer" while Clinton "had top secret materials in the server in her barn":

NAPOLITANO: Here's why it's a grave situation. A federal judge ordered the State Department to reveal -- to make public -- emails she had given back to the State Department. The recipients of those e-mails was the inspectors general of State Department and  of the intelligence community. They randomly sampled 40 of them. Among the 40, they found four that were classified.

[...]

They then revealed that they then sent that to FBI to commence either a criminal or a national security investigation, and they sent it to the Senate and House Intelligence and Judiciary Committees. Last night they revealed that two of the four were top secret. What does top secret mean? The government has three classifications -- the highest is top secret. Meaning if it's revealed, it could cause grave harm to national security. The middle is secret, meaning if it's revealed, it could cause serious harm to national security. The bottom is confidential, meaning if it's revealed, it could cause some hard to national security. General Patreaus was indicted, prosecuted, and convicted for having confidential, the lowest level materials in a desk drawer in his house. Mrs. Clinton, it has now been revealed, had top secret materials in the server in her barn at Chappaqua. [Fox News, Fox & Friends8/12/15]

FACT: Experts Have Debunked The Comparison -- Petraeus Knowingly Mishandled Classified Documents, Whereas Clinton Had Authorization To Use Private Email, And There's No Evidence She Knowingly Emailed Classified Information

Petraeus Pled Guilty To Violating 18 U.S.C. § 1924, "Unlawfully And Knowingly" Moving Classified Materials "With Intent To Retain Such Documents ... At Unauthorized Locations." Petraeus pled guilty to one count of violating Title 18, United States Code, Section 1924:

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]

NY Times: "There Has Never Been Any Legal Prohibition Against" Using Personal Email Accounts. Despite having previously scandalized Clinton's use of private emails as "alarming," the Times later clarified that "there has never been any legal prohibition" against the practice and that "[m]embers of President Obama's cabinet" use a "wide variety of strategies" to handle their emails:

Members of President Obama's cabinet have a wide variety of strategies, shortcuts and tricks for handling their email, and until three months ago there was no law setting out precisely what they had to do with it, and when. And while the majority of Obama administration officials use government email to conduct their business, there has never been any legal prohibition against using a personal account. [The New York Times3/13/15]

State Dept: Clinton Preserved And Provided Emails In Line With 2009 Regulation And How We Handled Records At The Time. At the March 3 daily press briefing, State Department deputy spokesperson Marie Harf explained that Clinton turned over 55,000 pages of documents as part of the State Department's "process of updating our records management" and emphasized that Clinton is the only former secretary of state to have done so. From Harf's briefing:

HARF: When in the process of updating our records management - this is something that's sort of ongoing given technology and the changes - we reached out to all of the former secretaries of state to ask them to provide any records they had. Secretary Clinton sent back 55,000 pages of documents to the State Department very shortly after we sent the letter to her. She was the only former Secretary of State who sent documents back in to this request. These 55,000 pages covered her time, the breadth of her time at the State Department. [State Department Daily Press Briefing,3/3/15]

Clinton: "I Am Confident That I Never Sent Or Received Any Information That Was Classified At The Time." Clinton told reporters on July 26 that she never sent or received information that she knew was classified at the time:

Democratic presidential candidate Hillary Rodham Clinton said she never knowingly sent or received classified information using her private email server and did not know what messages were being cited by intelligence investigators as examples of emails containing classified information.

[...]

"I am confident that I never sent or received any information that was classified at the time it was sent and received. What I think you're seeing here is a very typical kind of discussion, to some extent disagreement among various parts of the government, over what should or should not be publicly released," she said. [Associated Press, 7/26/15]

Director Of Project On Government Secrecy: "There's No Comparison Between The Clinton Email Issue And The Petraeus Case." Steven Aftergood told The Washington Times that "[e]veryone agrees that there was no information in the Clinton emails that was marked as classified," and therefore Clinton's actions bear no resemblance to Petraeus's:

While officials combing tens of thousands of emails that moved through Mrs. Clinton's server have pointed to the presence of "hundreds" of pieces of classified information -- apparently none of the messages had any official classification markings on them.

It's a situation that has triggered heated debate over the extent to which such information wasn't necessarily classified at the time Mrs. Clinton was emailing it.

"To the best of my understanding, there is no comparison between the Clinton email issue and the Petraeus case," says Steven Aftergood, who heads the Project on Government Secrecy at the Federation of American Scientists. "Everyone agrees that there was no information in the Clinton emails that was marked as classified. So it would be difficult or impossible to show that those who sent or received the emails knowingly or negligently mishandled classified information." [The Washington Times8/2/15]

Government Secrecy Expert: "There's No Case" Against Clinton If She Didn't Knowingly Misuse Classified Information. William Jeffress, an attorney who has handled government secrecy cases, told Time:

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. [Time7/29/15]

MYTH: Clinton Is The Subject Of A Federal Criminal Investigation

Fox's Chris Stirewalt: Clinton Might Be "The Subject Of A Federal Criminal Investigation." On the August 12 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 Newsroom8/12/15]

FACT: IG Referral To Justice Department Was Not Criminal, And FBI Isn't Targeting Clinton Herself

Reuters: Inspector General Referral Is Not Criminal. Reuters reported on July 24 that there was "no criminal referral over [the] Clinton emails":

The Justice Department said Friday it has received a request to examine the handling of classified information related to the private emails from Hillary Clinton during her time as secretary of state, but it is not a criminal referral. [Reuters, 7/24/15]

AP: U.S. Official Said That Request Of DOJ "Doesn't Suggest Wrongdoing By Clinton Herself." The Associated Press quoted an anonymous U.S. official who noted that the referral did not implicate Clinton in any wrongdoing:

The New York Times first reported the referral. The Clinton campaign said Friday that she "followed appropriate practices in dealing with classified materials." Spokesman Nick Merrill said emails deemed classified by the administration were done so after the fact, not when they were sent.

One U.S. official said it was unclear whether classified information was mishandled and the referral doesn't suggest wrongdoing by Clinton herself. [Associated Press, 7/24/15]

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:

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 Post8/11/15]

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