Experts Say No Evidence Clinton's Private Email Use Was Illegal; Reporters Say Claims To Contrary Rely On Partisan Leaks

ABC News' Dan Abrams: “There Doesn't Seem To Be A Legitimate Basis For Any Sort Of Criminal Charge Against Her.” In a February 1 article, ABC News legal analyst Dan Abrams debunked media claims that Clinton will be indicted over her private server usage. Abrams added that “there is no evidence - not suppositions or partisan allegations but actual evidence - that Clinton knew that using a private email server was criminal or even improper at the time.” [Media Matters, 2/1/16]

Washington Post's David Ignatius: “Is There A Crime Here? Almost Certainly Not.” National security experts and lawyers contacted by the Post's David Ignatius confirmed that the supposed "'scandal' is overstated" and “not something a prosecutor would take to court.” The August 28 article noted that a former CIA general counsel who went on the record said, "'It's common' that people end up using unclassified systems to transmit classified information." [Media Matters, 8/28/15]

Newsweek's Kurt Eichenwald: “The 'Scandal' About Clinton Using A Personal Email Account” Has Been “Perpetuated For Partisan Purposes.” Newsweek's Eichenwald has been covering the story about Clinton's use of private email since it broke and has consistently maintained that the “scandal” is a fiction. Eichenwald has warned that the story is not only a “nothing-burger,” but it is based on “reports spooned out by Republicans attempting to deceive or acting out of ignorance.” [Media Matters, 3/11/15; Media Matters, 2/8/16]

Vox's Jonathan Allen: Republican Staffers Working On Investigations Related To Clinton Have “Been Accused Of Leaking Something Untrue To A Reporter Before.” In the wake of The New York Times' inaccurate and subsequently corrected report that two inspectors general had requested a Justice Department “criminal probe” into Clinton's email use, the Times admitted that at least one of its sources was someone working for Congress. Vox's Allen reported that “House Benghazi Committee Chair Trey Gowdy was fully aware of the request to the Justice Department at least a day before the Times broke the story,” and noted that Gowdy's staff had previously been accused of putting out dishonest leaks. [Media Matters, 7/31/15]

Herridge Used Anonymous Source In Report That 150 FBI Agents Were Assigned To Clinton's Email Server Investigation

Fox Reports “About 100 Special Agents” And 50 Additional Temporary Agents Assigned To Clinton's Email Server Investigation. On January 11, Fox News chief intelligence correspondent Catherine Herridge and senior executive producer Pamela K. Browne reported on FoxNews.com that an anonymous source told them that “about 100 special agents” were assigned to investigate Hillary Clinton's private email server, "with as many as 50 additional agents on 'temporary duty assignment'':

Fox News is told that about 100 special agents assigned to the investigations also were asked to sign non-disclosure agreements, with as many as 50 additional agents on “temporary duty assignment,” or TDY. The request to sign a new NDA could reflect that agents are handling the highly classified material in the emails, or serve as a reminder not to leak about the case, or both. [FoxNews.com, 1/11/16]

Washington Post And Others Report Similar Number. On March 27, The Washington Post cited an anonymous source to claim that 147 FBI agents were investigating Hillary Clinton's private email server. Right-wing media quickly repeated the “staggering” figure. [Media Matters, 3/31/16]

The Number Of FBI Agents Has Been Grossly Overstated

Wash. Post Issued Correction And Reported Estimate Of 147 FBI Agents Working On Clinton's Emails Was “Too High.” Following an erroneous report based on information provided by an unnamed lawmaker, The Washington Post was forced to issue a correction reporting that the number of FBI agents working on Clinton's emails, which the paper originally claimed was 147, was “fewer than 50”:

CORRECTION: An earlier version of this article incorrectly said that Clinton used two different email addresses, sometimes interchangeably, as secretary of state. She used only hdr22@clintonemail.com as secretary of state. Also, an earlier version of this article reported that 147 FBI agents had been detailed to the investigation, according to a lawmaker briefed by FBI Director James B. Comey. Two U.S. law enforcement officials have since told The Washington Post that figure is too high. The FBI will not provide an exact figure, but the officials say the number of FBI personnel involved is fewer than 50. [The Washington Post, 3/27/16]

NBC News: “About 12 FBI Agents Working On Clinton Email Inquiry.” NBC reported on March 30 that the number of agents working on the email inquiry is closer to 12. NBC's source called the earlier figures “ridiculous” and said, “You need an act of terrorism to get 50 agents working on something.”

Sources close to the FBI investigation of Hillary Clinton's email are knocking down suggestions that 147 federal agents are working on the case, a figure first reported -- and now revised -- by the Washington Post, citing a lawmaker.

The Post updated the figure on Tuesday, stating that while the “FBI will not provide an exact figure,” there are “fewer than 50” FBI personnel involved in the case.

But a former federal law enforcement official with direct knowledge of the Clinton investigation tells MSNBC an estimate anywhere near 50 agents is also off base.

“There are currently about 12 FBI agents working full-time on the case,” says the source, who would only speak anonymously about an open investigation. [NBCNews.com, 3/30/16]

Herridge Used Anonymous Source To Falsely Claim Clinton Emails Were Unequivocally Classified

Herridge Cited “A Source Close To The Email Investigation” To Make False Claim That Clinton Received Classified Email. On August 26, Herridge penned a piece headlined “State Dept.-released Clinton email had classified intel from 3 agencies, in possible violation,” which quoted an unnamed source who argued that it was “not negotiable” that the emails were classified when they were sent:

Fox News is told that in late spring, all three agencies confirmed to the intelligence community inspector general that the intelligence was classified when it was sent four years ago by [Huma] Abedin to Clinton's private account, and remains classified to this day.

[...]

The State Department spokesman also said last Wednesday they are seeking a second opinion on the classification of some emails from the Office of the Director of National Intelligence, who leads the intelligence community.

“I made clear that we've asked the Director of National Intelligence for another assessment of those two, the two that the ICIG had determined should have been classified - or at least portions of which should have been classified top secret. So we've asked the DNI to look at that and we'll see what happens,” spokesman John Kirby said.

But a source close to the email investigation emphasized there is no such appeals process, and the finding that the intelligence was classified by the agencies who owned it is “not negotiable.” [FoxNews.com, 8/26/15]

Emails Were Retroactively Classified After Clinton Received Them And Are Product Of Interagency Dispute

AP: 1,274 Of Clinton's Emails Have Been Retroactively Classified. On January 1, the Associated Press reported that the State Department said 1,274 of Clinton's emails had been classified after the fact. [Associated Press, 1/1/16]

Wash. Post: “Different Government Agencies Often May Disagree About The Level Of Classification.” In a February 4 piece, The Washington Post explained that agencies in the government often dispute and fight about the level of classification for intelligence:

Different government agencies often may disagree about the level of classification. One good example are the memoirs of former secretary of state Condoleezza Rice and former vice president Richard B. Cheney. Both discussed a policy debate over North Korea. Cheney mentioned traces of enriched uranium on materials obtained from North Korea -- which had been reported years earlier in The Washington Post -- after receiving clearance to do so from the CIA. But to her frustration, Rice was not able to mention the uranium, though she wanted to, because the State Department refused to give her clearance -- even though the information was already in the public domain. [The Washington Post, 2/4/16]

Politico: State Department Appealed To Director Of National Intelligence In Interagency Dispute Over Classification. Politico reported on November 6 that at the request of the State Department, the Office of the Director of National Intelligence reportedly overruled the inspector general of the intelligence community's prior conclusion that two emails received by Clinton contained highly classified information. Politico also pointed out that “there is an interagency committee to hear appeals on declassification issues, the Interagency Security Classification Appeals Panel.” [Politico, 11/6/15]

Herridge Repeatedly Used Anonymous Sources To Claim Clinton Mishandled Classified Information

Herridge Cited “Two Sources Not Authorized To Speak On The Record” In A Report Suggesting Clinton's Server Contained “Reporting On Human Intelligence Sources In Ongoing Operations.” On January 23, Herridge reported, “At least one of the emails on Hillary Clinton's private server contained extremely sensitive information identified by an intelligence agency as 'HCS-O,' which is the code used for reporting on human intelligence sources in ongoing operations, according to two sources not authorized to speak on the record.” [FoxNews.com, 1/23/16]

Herridge Report Headline: “Source: FBI Probe Of Clinton Email Focused On 'Gross Negligence' Provision.” In an October 16 piece on the Clinton email investigation, Herridge claimed an unnamed source told her the FBI was “focused on whether there were violations of an Espionage Act subsection pertaining to ”'gross negligence' in the safekeeping of national defense information." She also reported that a source had indicated the FBI was investigating a possible obstruction of justice. [FoxNews.com, 10/16/15]

Herridge Report: “A Separate Source Told Fox” That It Was “No Less A Violation Of Espionage Statutes If Any Material Was Classified Secret Or Top Secret.” In a February 6 piece on the Clinton email investigation, Herridge reported, “A separate source told Fox, 'it is no less of a violation of espionage statutes if any material was classified secret or top secret....All the statute requires is national defense information or NDI,' adding 'this is way past accidental spillage...(it) is being investigated as intentional mishandling...in this kind of high profile investigation, the most damaging information takes primacy.'” [FoxNews.com, 2/6/16]

Experts Agree That “No One Mishandled The Information At The Time”

Wash. Post: “It's Not A Sign Of Wrongdoing ... . Often An Unclassified Email Will Be Retroactively Classified.” On February 4, The Washington Post explained that emails are routinely sent on an unclassified system only to be classified later in response to request for public release:

So how could information sent on an unclassified system turn out to be “top secret”? The answer is easy -- when State Department officials review it in response to a request for public release. “State's upgrading process is retroactive,” said one congressional aide. “It's not a sign of wrongdoing but rather the normal process used by State under all administrations before unclassified documents are made public (usually via FOIA). Often an unclassified email will be retroactively classified to protect foreign and diplomatic communications, for example.” [The Washington Post, 2/4/16]

PolitiFact: “Because The Information Was Classified After The Emails Were Sent, No One Mishandled The Information At The Time.” On September 10, PolitiFact debunked the notion that anyone mishandled information on Clinton's email server, explaining that none of the information was classified at the time.

This sort of classification upgrade occasionally happens when new information comes into play that affects the sensitivity of the information. Because the information was classified after the emails were sent, no one mishandled this information at the time by sending it over Clinton's private server. [PolitiFact, 9/10/15]

Herridge Used Anonymous Sources To Claim Email Markings Had Been Changed To Hide Classified Information

Herridge Relied On Two Anonymous Sources To Push Claim That “Clinton Email Markings Changed To Hide Classified Info.” On September 1, Herridge reported that two sources, “one congressional, the other intelligence,” claimed that the markings on at least four Clinton emails were changed to “hide the true extent of classified information”:

At least four classified Hillary Clinton emails had their markings changed to a category that shields the content from Congress and the public, Fox News has learned, in what State Department whistleblowers believed to be an effort to hide the true extent of classified information on the former secretary of state's server. The changes, which came to light after the first tranche of 296 Benghazi emails was released in May, was confirmed by two sources -- one congressional, the other intelligence." [FoxNews.com, 9/1/15]

State Department Previously Said No Indication Clinton Or Staff Changed Markings

State Department Spokesperson: “No Indications” There “Was At All Any Stripping Of Classification Markings.” In an August 13 U.S. Department of State daily press briefing, in response to a similar anonymous allegation, department spokesperson James Kirby said he had “no indications” there “was at all any stripping of classifaction markings on these [documents]”:

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]

Herridge Quoted Anonymous Sources Who Claimed The Clinton Foundation Was Under Investigation For Violating Corruption Laws

Herridge Cited “Three Intelligence Sources Not Authorized To Speak On The Record” In Report On Clinton Foundation Work And Corruption Laws. On January 11, Herridge reported, “The FBI investigation into Hillary Clinton's use of private email as secretary of state has expanded to look at whether the possible 'intersection' of Clinton Foundation work and State Department business may have violated public corruption laws, three intelligence sources not authorized to speak on the record told Fox News.” [FoxNews.com, 1/11/16]

Clinton Foundation Not The Focus Of Investigation

After Receiving Subpoena, Foundation Representative Said The Clinton Foundation Was Not The Focus Of The State Department Investigation. On February 11, The Washington Post reported, “Investigators with the State Department issued a subpoena to the Bill, Hillary and Chelsea Clinton Foundation last fall seeking documents about the charity's projects that may have required approval from the federal government during Hillary Clinton's term as secretary of state, according to people familiar with the subpoena and written correspondence about it. ... A foundation representative, who spoke on the condition of anonymity to discuss an ongoing inquiry, said the initial document request had been narrowed by investigators and that the foundation is not the focus of the probe.” [The Washington Post, 2/11/16]

Herridge Used Anonymous Source To Suggest It Was Illegal For Hillary Clinton To Discuss NY Times Articles In Emails

Herridge Used A “Government Source Who Was Not Authorized To Speak On The Record” To Back The Suggestion That Clinton Discussing NY Times Articles About CIA Was Illegal. On February 17, Herridge reported, “One of the classified email chains discovered on Hillary Clinton's personal unsecured server discussed an Afghan national's ties to the CIA and a report that he was on the agency's payroll,” and she cited an anonymous source to back up her claim that Clinton and others received the email. Herridge suggested that Clinton violated a 2009 executive order by President Obama that classified such emails.

One of the classified email chains discovered on Hillary Clinton's personal unsecured server discussed an Afghan national's ties to the CIA and a report that he was on the agency's payroll, a U.S. government official with knowledge of the document told Fox News.

The discussion of a foreign national working with the U.S. government raises security implications - an executive order signed by President Obama said unauthorized disclosures are “presumed to cause damage to the national security.”

The U.S. government official said the Clinton email exchange, which referred to a New York Times report, was among 29 classified emails recently provided to congressional committees with specific clearances to review them. In that batch were 22 “top secret” exchanges deemed too damaging to national security to release.

[...]

Based on the timing and other details, the email chain likely refers to either an October 2009 Times story that identified Afghan national Ahmed Wali Karzai, the half-brother of then-Afghan president Hamid Karzai, as a person who received “regular payments from the Central Intelligence Agency” -- or an August 2010 Times story that identified Karzai aide Mohammed Zia Salehi as being on the CIA payroll. Ahmed Wali Karzai was murdered during a 2011 shoot-out, a killing later claimed by the Taliban.

Fox News was told the email chain included then-Secretary of State Clinton and then-special envoy to Afghanistan and Pakistan Richard Holbrooke and possibly others. The basic details of this email exchange were backed up to Fox News by a separate U.S. government source who was not authorized to speak on the record.

[...]

While the Clinton campaign claims the government classification review has gone too far, Executive Order 13526, in a section called “classification standards,” says, “the unauthorized disclosure of foreign government information is presumed to cause damage to the national security.” [FoxNews.com, 2/17/16]

Classification Of Emails Discussing Such News Articles Is Not Automatic Under 2009 Executive Order

Security Expert: Order “Authorizes Classification; It Doesn't Require It.” In an interview with Mother Jones, security expert Steven Aftergood explained that Executive Order 13526 on classification “is permissive, not mandatory.” Rather than requiring that communication between and about foreign officials be marked classified, the order “authorizes classification”:

“Strictly speaking, the executive order on classification is permissive, not mandatory,” Steven Aftergood, who writes Secrecy News for the Federation of American Scientists, told Mother Jones. “In other words, it authorizes classification; it doesn't require it.” Aftergood pointed to Executive Order 13526, signed by President Obama in December 2009, which says “information may be originally classified,” but does not explicitly mandate it. [Mother Jones, 8/21/15]

Executive Order 13526: “Information May Be Classified,” And If Classification Need Is In Doubt, “It Shall Not Be Classified.” The order did not mandate that communications dealing with foreign relations must be classified. Instead, it clarified that "[i]f there is significant doubt about the need to classify information, it shall not be classified":

Section 1.1.b

(b) If there is significant doubt about the need to classify information, it shall not be classified. This provision does not:

(1) amplify or modify the substantive criteria or procedures for classification; or

(2) create any substantive or procedural rights subject to judicial review. [Executive Order 13526 -- Classified National Security Information, 12/29/09]

Executive Order 13526: Classification Can Be Considered Only If Unauthorized Disclosure May Cause Damage To National Security. In December 2009, Obama signed an executive order prescribing “a uniform system for classifying, safeguarding, and declassifying national security information.” The order did not mandate any classifications. Instead, it authorized communications concerning “foreign government information” and “foreign relations” to be considered for classification if “its unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security”:

Sec. 1.4. Classification Categories. Information shall not be considered for classification unless its unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security in accordance with section 1.2 of this order, and it pertains to one or more of the following:

(a) military plans, weapons systems, or operations;

(b) foreign government information;

(c) intelligence activities (including covert action), intelligence sources or methods, or cryptology;

(d) foreign relations or foreign activities of the United States, including confidential sources;

(e) scientific, technological, or economic matters relating to the national security;

(f) United States Government programs for safeguarding nuclear materials or facilities;

(g) vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security; or

(h) the development, production, or use of weapons of mass destruction. [Executive Order 13526 -- Classified National Security Information, 12/29/09]