Intelligence Community IG Says Two Emails From Clinton's Server Should Be Marked “Top Secret,” And State Department Flags 300 Emails For Review

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]

State Department Flags 305 More Clinton Emails For Review To Determine Whether They Contain Classified Material That Should Not Be Released To Public. The Washington Post reported on August 17 that an attorney for the State Department had indicated that the intelligence agencies reviewing Clinton's emails had identified 305 additional emails for further review by their agencies, “to see whether they contain classified material that should not be released to the public.” The State Department's attorney later noted that "[t]hose agencies may not ultimately conclude that the e-mails contain classified information":

A State Department official told a federal judge Monday that 305 more of former secretary of state Hillary Rodham Clinton's e-mail messages have been flagged for further review by intelligence agencies, to see whether they contain classified material that should not be released to the public.

Clinton turned 30,000 e-mails over to the State Department in December 2014, and the department now has a team reviewing the correspondence to determine what should be released and what should be redacted under laws that allow the government to withhold public documents from release on a variety of grounds, including national security.

[...]

In the status update to the court, an attorney for the State Department indicated that the reviewers from the intelligence community have identified 305 e-mails out of a sample of 20 percent of Clinton's e-mails to send for further review by their agencies. Those agencies may not ultimately conclude that the e-mails contain classified information. [The Washington Post, 8/17/15]

MYTH: 300 Of Hillary Clinton's Emails Likely Contain Classified Material

Fox Senior Judicial Analyst Andrew Napolitano: 300 Of Clinton's Emails “Are Seriously Questionable As To Whether They Contain Classified Material.” On the August 18 edition of Fox News' Fox & Friends, senior judicial analyst Andrew Napolitano claimed that 300 of Hillary Clinton's emails “are seriously questionable as to whether they contain classified material”:

NAPOLITANO: They found about 300 that are seriously questionable as to whether they contain classified material. Now, we know that at least one of them contains top secret material. And then within the top secret category, there are three other markings indicating really, really super top, so super top that you can't discuss it outside of a secured environment, a secured room. And this particular email, which was satellite photographed so the Middle Eastern country and intercepts of foreign agents was in that category. So let's just say, let's just hypothetically say Mrs. Clinton and her associates are indicted for conspiracy to violate the espionage laws of the United States by knowingly letting secrets get out. And let's just say they're in a court room and Mrs. Clinton says 'well, it didn't say classified on it.'

DOOCY: Because the story last week was perhaps one of her underlings stripped that off and then sent it to her.

[crosstalk]

NAPOLITANO: You know, no one knows if that happened because the FBI has this information and we haven't seen it yet. But, here's what her argument was. Her first argument was 'there are no classified materials.' Then she changed it to 'I didn't send or receive anything that was marked classified.' So she tries to tell that to a jury, guess what the judge is going to say? The judge is going to say, 'members of the jury, the secretary of state who has been trained to identify classified materials is presumed to know what's classified or not, whether it's stamped top secret or not.' That would force her to get on a witness stand. That would force her to justify how these pictures of Yemen from a satellite are not classified. [Fox News, Fox & Friends, 8/18/15]

FACT: Emails Have Been “Flagged For Further Review,” But Intelligence Agencies May Not Conclude They Contained Classified Material

305 Of Clinton's Emails Have Simply Been Flagged For Review, But Do Not Necessarily Contain Classified Material.  As The Washington Post reported, the attorney for the State Department indicated that the intelligence community responsible for reviewing the emails Clinton turned over to the State Department has identified 305 emails for further review by their agencies, but they “may not ultimately conclude that the e-mails contain classified information” (emphasis added):

A State Department official told a federal judge Monday that 305 more of former secretary of state Hillary Rodham Clinton's e-mail messages have been flagged for further review by intelligence agencies, to see whether they contain classified material that should not be released to the public.

[...]

In the status update to the court, an attorney for the State Department indicated that the reviewers from the intelligence community have identified 305 e-mails out of a sample of 20 percent of Clinton's e-mails to send for further review by their agencies. Those agencies may not ultimately conclude that the e-mails contain classified information. [The Washington Post, 8/17/15]

State Department Spokesperson John Kirby: The Review Is “A Healthy Thing,” It “Doesn't Mean That All 300” Emails Will Contain Classified Information. According to The Washington Post, State Department spokesperson John Kirby explained that the review of Clinton's email is “a healthy thing. It's a good thing. It doesn't mean that all 300 are going to end up at some level of upgrade”:

“What you're seeing here is exactly what we want to see, which is the proper care and scrutiny being applied to this,” State Department spokesman John Kirby told reporters Monday. “It's a healthy thing. It's a good thing. It doesn't mean that all 300 are going to end up at some level of upgrade. I suspect some will, and I suspect some won't.” [The Washington Post, 8/17/15]

MYTH: We Know At Least One Of Clinton's Emails Contained  “Top Secret Material” Including Satellite Imagery, Foreign Agent Intercepts

Napolitano: “We Know That At Least One” Of Clinton's Emails "Contains Top Secret Material" Including Satellite Imagery And Foreign Agent Intercepts. Napolitano claimed that “we know that at least one” of Hillary Clinton's emails “contains top secret material,” because it included “satellite photograph[s]” including “intercepts of foreign agents” (emphasis added):

NAPOLITANO: They found about 300 that are seriously questionable as to whether they contain classified material. Now, we know that at least one of them contains top secret material. And then within the top secret category, there are three other markings indicating really, really super top, so super top that you can't discuss it outside of a secured environment, a secured room. And this particular email, which was satellite photographed so the Middle Eastern country and intercepts of foreign agents was in that category. So let's just say, let's just hypothetically say Mrs. Clinton and her associates are indicted for conspiracy to violate the espionage laws of the United States by knowingly letting secrets get out. And let's just say they're in a court room and Mrs. Clinton says 'well, it didn't say classified on it.' [Fox News, Fox & Friends, 8/18/15]

FACT: Officials Say Clinton's Emails Do Not Include “Clear Reference To” Any “Form Of Sensitive Sourcing”

Associated Press Sources: Emails Don't Include Any “Form Of Sensitive Sourcing.” The Associated Press reported that their sources indicate that “nothing in the emails [Clinton] received makes clear reference to communications intercepts, confidential intelligence methods or any other form of sensitive sourcing.” The AP also reported that their sources disagreed about whether the emails contained classified information. From the AP (emphasis added):

The officials who spoke to the AP on condition of anonymity work in intelligence and other agencies. They wouldn't detail the contents of the emails because of ongoing questions about classification level. Clinton did not transmit the sensitive information herself, they said, and nothing in the emails she received makes clear reference to communications intercepts, confidential intelligence methods or any other form of sensitive sourcing.

The drone exchange, the officials said, begins with a copy of a news article that discusses the CIA drone program that targets terrorists in Pakistan and elsewhere. While a secret program, it is well-known and often reported on. The copy makes reference to classified information, and a Clinton adviser follows up by dancing around a top secret in a way that could possibly be inferred as confirmation, they said. Several officials, however, described this claim as tenuous.

But a second email reviewed by Charles McCullough, the intelligence community inspector general, appears more suspect. Nothing in the message is “lifted” from classified documents, the officials said, though they differed on where the information in it was sourced. Some said it improperly points back to highly classified material, while others countered that it was a classic case of what the government calls “parallel reporting” - different people knowing the same thing through different means. [Associated Press, 8/14/15]

MYTH: Clinton Aides “Stripped” Emails Of Classified Markings

Fox Host Steve Doocy: “The Story Last Week Was Perhaps One Of Her Underlings Stripped [Classified Markings] Off” Her Email. Fox & Friends host Steve Doocy suggested “perhaps on of [Clinton's] underlings stripped” classified markings off her email: 

NAPOLITANO: So let's just say, let's just hypothetically say Mrs. Clinton and her associates are indicted for conspiracy to violate the espionage laws of the United States by knowingly letting secrets get out. And let's just say they're in a court room and Mrs. Clinton says 'well, it didn't say classified on it.'

DOOCY: Because the story last week was perhaps one of her underlings stripped that off and then sent it to her.

[crosstalk]

NAPOLITANO: You know, no one knows if that happened because the FBI has this information and we haven't seen it yet. But, here's what her argument was. Her first argument was 'there are no classified materials.' Then she changed it to 'I didn't send or receive anything that was marked classified.' So she tries to tell that to a jury, guess what the judge is going to say? The judge is going to say, 'members of the jury, the secretary of state who has been trained to identify classified materials is presumed to know what's classified or not, whether it's stamped top secret or not.' That would force her to get on a witness stand. That would force her to justify how these pictures of Yemen from a satellite are not classified.

DOOCY: Do you feel, with your judicial gut, she is going to wind up getting charged?

NAPOLITANO: Yes. I feel that she's in serious trouble and she doesn't recognize it. I can tell you this, the team of FBI investigators and federal prosecutors that are pursuing her is the highest and best in the Justice Department. Not to criticize other teams. It's absolutely apolitical, it's impervious to political consequences. And do you know who runs the FBI? Jim Comey. And do you remember what he threatened to resign under President Bush because the president wanted him to do something he didn't think was right? Do you think that if they find enough evidence to indict Mrs. Clinton and her colleagues, and the president says 'no,' Mr. Comey will be quiet about it? I don't. [Fox News, Fox & Friends, 8/18/15]

FACT: State Department: No Evidence Classification Markers Were “Stripped” From Emails  

State Department Spokesperson: “No Indications” That Classification Markings Were “Stripped” From Emails. State Department spokesman Adm. John Kirby said during his August 13 briefing that the State Department has “no indications” that classification markings were stripped from the emails:

QUESTION: John, thank you. I have two quick questions on Secretary Clinton's server. Has the State Department been able to determine whether each of the four classified emails sent to Secretary Clinton's server originated within the State Department or whether they originated within another agency?

MR KIRBY: I don't have any updates for you in terms of original sourcing on those emails.

QUESTION: And secondly, has the State Department been able to determine whether any classification markings may have been stripped from any of those documents from anyone within the State Department?

MR KIRBY: We have no indications that there were any - that there was at all any stripping of classification markings on these. [U.S. Department of State, 8/13/15]

State Department: Emails Were “Not Marked As Classified” And May Not Actually Have Been Classified At The Time. 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, that they were not marked as classified at the time, and that it is unclear whether the material in question “is actually classified” (emphasis added):

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]