In the last few days, two articles have appeared defending Hillary Clinton’s use of a private server for her classified communications. One, from the famously objective PolitiFact, continued their amazingly uninformed series of “fact checks” with a check of Colorado Senate candidate Jack Graham’s statement that “it’s clear that [Clinton] violated security laws.” The other article was written by Paul Waldman at the Washington Post Plum Line blog.
Both articles are nonsense. We’ll look at why. First, let’s summarize the issue.
Shortly before Hillary Clinton took the position of secretary of State, she set up — or rather, hired Bryan Pagliano to set up — a personal email server for her in the domain “clintonemails.com.” This was apparently a very ordinary Microsoft server that started life at her home in Chappaqua, then at some point was moved to a Ma-and-Pa hosting service in Denver.
This hosting service was small enough that, at least for a while, it kept her server in a bathroom.
She used this server exclusively for email for her entire time in office, mixing her official email as secretary of State with her personal emails about yoga lessons and Chelsea Clinton’s pregnancy. She left office, and 21 months later turned over a subset of those emails that she considered official records.
After lengthy court battles, the Department of State was required to turn the emails over under Freedom of Information Act requests. The State Department review of those emails revealed that two thousand or more were classified at some level.
Some of them were classified TOP SECRET with various special access designators like SPECIAL COMPARTMENTED INTELLIGENCE and TALENT KEYHOLE. This is what people mean when they say something is classified “above TOP SECRET.” That’s really a misnomer: there is nothing above TOP SECRET, by definition. But it does name areas of special sensitivity. (I explained the system in some detail in my Snowden and Computer Security piece.) This personal server was not particularly secure in any case, and worse, it was apparently not configured to be as secure as it could have been.
Remember, these are facts that aren’t seriously disputed. There have been some things said about the emails, though, that are, well, not true.
To start with, Clinton originally said that she had no classified material in her emails at all. When that was proven false, she revised her talking point to “no material marked classified at the time.” This is one of those points that Clinton repeats regularly.
It’s pure obfuscation.
As I explained in “It’s Not Classified Because It’s Marked, It’s Marked Because It’s Classified,” it’s the content that makes something classified, not the marking.
So if Hillary is responsible for a document that contains classified information but isn’t marked, her talking point is not a defense at all. In fact, she is now responsible for a second offense.
This fact isn’t hard to figure out if you bother to research the law. In addition to my articles, a number of other people have been pointing it out in media. Further, it doesn’t take a ton of thought to understand why it must be true: the first time someone types a document about some sensitive topic, they have to type the appropriate classifications. They know what classification to type because they know how sensitive the information is while it is being typed.
And yet, PolitiFact repeats that defense:
[F]ederal agencies have the ability to classify information after the fact. So some of the emails weren’t classified when Clinton sent or received them, but they were later classified after a government review.
Sigh.
Let’s just repeat: if a security review finds the information is classified, it was classified at the time it was created. It may only have been marked as classified during the review, but it was classified.
What’s more, Clinton, as secretary of State, is personally responsible for correctly marking information under Executive Order 13526.
So let’s go on to look at Waldman’s argument:
[I]n order to have broken the law, it isn’t enough for Clinton to have had classified information in a place where it was possible for it to be hacked. She would have had to intentionally given classified information to someone without authorization to have it.
Waldman’s primary job appears to be as a writer for The American Prospect, an overtly liberal magazine founded by Robert Kuttner, Paul Starr, and Robert Reich … all Clinton insiders.
It’s not a surprise that he’s defending Hillary Clinton, but his defense is also notably ignorant of the law. In particular, note 18 U.S. Code § 793 paragraph (f):
(f)Whoever, being entrusted with or having lawful possession or control of any document, … (1) through gross negligence permits the same to be removed from its proper place of custody …
Shall be fined under this title or imprisoned not more than ten years, or both.
Emphasis most emphatically mine.
Waldman’s defense is that Hillary didn’t commit a crime unless she knowingly gave the information to someone unauthorized to have access to it. As you see above, the actual law does not say that. The law says it’s sufficient for there to have been gross negligence.
I find it difficult to credit the notion that keeping information on an irregular, unauthorized server is not gross negligence. How much grosser could her negligence get?
This gross: we know that she gave access to the server to her personal IT guy Pagliano. He set it up. He managed it for her.
Yet he held no clearance giving him access to TOP SECRET.
Not only does the law say Hillary committed an offense even if it was just negligence, but nobody, not even Hillary, disputes that she knowingly gave access to that server to an uncleared person.
Both the Washington Post and the American Spectator defenses are nonsense, but carefully crafted nonsense intended for people who aren’t well-versed on how classification works. I think the Clinton campaign has begun to be worried about the FBI’s emails investigation, and they’ve begun to push more disinformation to prepare for an indictment — or at least a recommendation for indictment — by the FBI.
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