A rebuttal of many strong misstatements being made by press and polity, alike
Now that the dust has settled on the recent public appearances by FBI Director James Comey and Attorney General Loretta Lynch about Hillary Clinton's emails, we can set the record straight on a string of gross inaccuracies that are being picked up and repeated, again and again, in Cleveland and in other corners of the political ether. Remarkably, while most claims about Hillary Clinton's handling of classified material have been misstated--or much worse--her own public statements over the past year have been uniformly accurate. Here are three of the biggest falsehoods, together with one unreported truth:
Accusation #1. Candidate Clinton has repeatedly denied, over the past year, that emails marked classified crossed her unclassified server, yet at least some of these emails contained markings that should have alerted her to the presence of classified material--and this constitutes both a serious violation and evidence that she lied to the American people.
Sorry, but this is utterly false: This accusation is the cornerstone of all the other charges that have been made against Clinton regarding her handling of classified material. It's the cornerstone because, if true, it would easily be the most meaningful, and serious, charge against the former Secretary. Based on this writer's previous Government service, how a particular communication or other document is "marked" is far and away the most serious factor in deciding whether a violation of classification rules has occurred.
In this case, it is absolutely clear that no violation took place. For starters, "some" emails with classified markings turned out to be merely two or three documents, or one hundredth of one percent of all of Clinton's 30,000 documents that were turned over for the FBI's review. More importantly:
(i) None of these few documents displayed headers marked "Top Secret," "Secret" or "Confidential" as is required in order to alert any reasonable user that the particular document contains classified information.
(ii) A handful of paragraphs in these emails contained the letter "C" (apparently meaning "Confidential") embedded within them--and the two about which we know the specifics were condolence call sheets to foreign leaders, e.g.:
(C) Purpose of call: To offer condolences on the death of President so-and-so and to congratulate the new President on his recent swearing in. [Cleansed to remove actual identities.]
No one this writer knows would read that segment, and consider it classified. And, in fact...
(iii) These few emails actually bore the "C" markings in error, as the State Department asserted soon after Comey's appearance before Congress.
If anything, this handful of so-called "classified" documents exposes our Government's misguided habit of over-classification, and the need to overhaul the entire system--a topic for another day.
Bottom line: It is absolutely, demonstrably accurate that Secretary Clinton did not send or receive emails marked classified over her unclassified server--and she has been telling the unvarnished truth about this all along.
Accusation #2. From the group of 30,000 work e-mails turned over by Clinton's lawyers to the State Department (and bearing no classification markings whatsoever), 110 e-mails "have been determined by the owning agency to contain classified information at the time they were sent or received" and "any reasonable person in Secretary Clinton's position should have known that an unclassified system was no place for that conversation."
Sounds cogent, right? Maybe, but it's actually irrelevant and wrong: Even putting aside the appropriateness of Comey offering his own commentary in an unprecedented news conference called to announce the FBI's recommendation to the Justice Department, these are Director Comey's subjective characterizations and go completely unsupported.
Of course, we don't know what these 110 emails actually look like or what they say--and we probably never will. However, if Comey's assertions are taken at face value, the State Department and other "owning agencies" have determined, just now, during the past year's investigation, that 110 unmarked emails contained classified information "at the time they were sent or received." This sounds suspiciously similar to the "up-classifying" process wherein agencies decide, later on, that documents that were not designated Top Secret, Secret or Confidential at the time they were sent or received, magically became so classified later on.
Luckily though, we really don't have to go down this rabbit hole of "after classification." Because the determination of what actually constitutes classified information is always a subjective exercise--one classifier may deem a diplomatic conversation classified while another may not--accountability for the mishandling of such information is (again) normally tied to how documents are actually marked. In fact, this much was established by the writer in the Washington Post just last year:
By contrast, Ms. Clinton clearly did not exchange over her personal server material that had been designated classified -- and this is the standard to which the law holds her.
Bottom line: In the absence of classification markings, Clinton instinctively relied on the good judgment of over 300 experienced and security-cleared Government officials with whom she was corresponding--none of whom either questioned the use of an unclassified system to communicate with Clinton on these subjects, nor sought to have the information marked classified and moved to a secure communications system. Case closed.
Accusation #3. In its unsecured state, Clinton's home server was vulnerable and subject to hacking--in fact, we know it was hacked by actors who are no friends of the United States.
Vulnerable, yes -- but ultimately, no breach found. Let's not forget that the State Department server which went unused by Secretary Clinton was also an unclassified system and therefore no more an appropriate place for writing classified emails than was Clinton's own private server:
In fact, the State Department Inspector General recently reported that one of the Department's highest ranking career officials, Lewis Lukens, found nothing unusual about either Clinton's electronic absence from the State Department system or the fact that she used an outside server for her communications. (See this writer's recent column on this site, "Correcting the Record (Again): Hillary Clinton's Handling of State Department Emails)."
Bottom line: Clinton has said many times that if she had to do it all over again, she would not have used a private server located in her New York home. Nevertheless, while we know that the State Department's unclassified system has been hacked by hostile actors, Director Comey stated plainly that the FBI's forensic teams found no evidence of any similar breach of Clinton's server.
One Hidden Truth: What is incredible about the coverage of this whole issue is the one big piece of information that is being kept from the American people: from watching on TV or reading all the accounts of this affair, the average observer might believe that all the emails Secretary Clinton either read or wrote during her tenure--classified and unclassified alike--traveled exclusively over an unclassified server. This is untrue. In fact, when Secretary Clinton needed to send or receive genuinely classified documents, we know that she marched over to the encrypted and secure computer within her office suite (or asked a cleared assistant to do so) in order to manage such documents.
In other words, there is a whole separate classified email system that operates only in the State Department building and Embassies around the world, and the Secretary surely handled thousands of messages sent on that classified system over her four years in office. The fact that Clinton really did use a classified server when appropriate to do so, confirms that she always respected the need to safeguard sensitive material--and the importance of protecting our nation's secrets. Of course, this mindset of hers has much to do with Director Comey's ultimate recommendation, and reflects the true "intent" she demonstrated throughout her national service.
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At this point, a reasonable reader of this column may wonder how, given all of the above, FBI Director Comey could possibly have concluded that Secretary Clinton and her colleagues were "extremely careless" in their handling of certain sensitive information--even though the Attorney General, in her own testimony before Congress last week, pointedly refused to characterize Clinton's behavior in the same way.
This writer has a theory about what Comey was up to. The notion that Hillary Clinton would be indicted based on what the FBI found in her handling of emails was always preposterous. But given this uber-partisan year, the posturing of vicious attack dogs in Congress, and the unfortunate tarmac incident in Phoenix, Comey felt he had to leaven his "non-indictment" decision with a tongue-lashing of Hillary Clinton and her colleagues. In so doing, he overplayed his hand -- and, in overreaching, he also got many of his facts wrong. (Among several other misstatements were Comey's account that Clinton's lawyers did not themselves possess security clearances--they all did--and that, contrary to her public statements, Clinton possessed more than one handheld device--yes, but only because she replaced her Blackberries over time.)
In the end, there was a political angle to Comey's behavior after all, but his tongue-lashing had a perhaps unexpected, and decidedly unhappy, effect: it opened the floodgates of mock hand-wringing, conspiracy theories, and faux mistrust, all directed by Congressional Republicans against one of their own and against that most honorable of non-partisan institutions which he leads. Unfortunately, if fictions and lies are allowed to carry the day, then we all lose out from this one: the integrity of the FBI will be wrongfully impugned, the Republican Party will be further devalued, and Hillary Clinton--who doesn't deserve any of this--has to spend her precious time overcoming the falsehoods that are written and spoken about her.
Hillary Clinton has more important things to talk about this year. The fate of our nation hangs in the balance.