Editor’s Note: Douglas Cox is an associate professor at the City University of New York School of Law. The views expressed are his own.
Hillary Clinton has denied sending classified information from personal server
Inspectors general find sample of emails contained classified information
Douglas Cox: Political stakes, voices on both sides make finding the truth challenging
Of the many allegations related to Hillary Clinton’s emails – ranging from reasonable to conspiratorial – the most serious are the findings by two inspectors general that Clinton’s private email server contained classified information and a related referral to the FBI concerning a “potential compromise of classified information.” While details remain unclear, the alleged presence of classified information on a private email server undoubtedly has legal implications for the controversy – and places a strain on Clinton’s public defense.
When Clinton initially addressed the email controversy, her assurances that the emails contained no classified information were broad, unequivocal and perhaps overconfident. Indeed, for anyone who has witnessed the State Department’s liberal use of redactions of classified information in publicly released documents, the assertion that thousands of emails sent and received by a secretary of state would not contain any classified information, even if only inadvertently, strained credulity.
Predictably, once the State Department began releasing portions of Clinton’s emails, they contained redactions for classified information. Clinton’s ready response was that these were “retroactive” classifications in which previously unclassified information was upgraded to classified when it was reviewed for public release. Therefore, Clinton’s defense that at the time the emails had contained no classified information survived.
The inspectors general found, however, that a sample of Clinton’s emails contains information that was classified “when they were generated,” which therefore “should never have been transmitted via an unclassified personal system.” This is a significant, serious allegation that cannot be lightly dismissed.
Clinton has doubled down and reasserted that she is “confident” no information in her emails was classified at the time, but her confidence in the precise content of 55,000 pages of emails sent years ago has to be waning. Further, if the concerns of the inspectors general materialize that potentially “hundreds” of emails contained information classified at the time and that it is “more likely than not” that the emails Clinton kept on a private server contain some “top secret” information, the most sensitive category, Clinton might be in the unenviable position of asserting that the intelligence community is simply wrong or that their conclusions are politically motivated.
Clinton also argues the emails “did not contain any classified markings,” a significantly more tenuous defense. As all government employees with security clearances are advised, classified information is not always marked. The standard classified information nondisclosure agreement, for example, defines classified information as “marked or unmarked classified information,” and requires the return of such information to the government at the end of one’s employment under threat of possible criminal charges.
How should Clinton respond moving forward?
A more bold strategy for Clinton that might have benefits beyond her own defense would be to shine a light on this murky world of classification decisions, which are less exact science and more art – sometimes abstract art – that can be a trap for the unwary.
Differing conclusions among different agencies about what is and is not classified in Clinton’s emails is a clear example. Overclassification is unquestionably epidemic among government departments, and allegations of mishandling of classified information have increasingly been used against defendants who appear to be more whistleblower than traitor.
Still, taking up this banner might be too adventurous for Clinton, whose predicament arose, in her own retelling, simply from a desire to avoid a second device. Instead, should the allegations of the inspectors general take root, a final line of defense would be for Clinton to assert that she was simply unaware that the information in the emails was classified at the time.
The trouble with this approach is that any ongoing review and public release of additional emails could disclose sufficient context to determine the nature or subject matter of redacted classified information, in which case the credibility of such assertions would be tested. And while a lack of knowledge may be sufficient to avoid criminal allegations, even negligent handling of classified information can provide grounds for loss of a security clearance or other sanctions. Such issues arose, for example, in the context of the leak of Valerie Plame’s identity, where certain Bush administration officials may not have known – but should have – of Plame’s covert status.
To be clear, Clinton’s “unclassified” emails containing some classified information is not as extraordinary as some would suggest. Indeed, it is likely true of the emails of most senior officials whose responsibilities implicate foreign affairs and national security. Yet this reality only underscores why it is crucial for such communications to remain in government control, as required by the federal records laws where the controversy over Clinton sequestering official emails on a private server began.
In the end, the high political stakes and aggressive voices on both sides make finding the middle – or the truth – challenging. There is, so far, no evidence Clinton has committed a criminal act, and those making such allegations risk overplaying their hand. In fact, had there actually been a criminal referral against Clinton, it would likely serve as a silver bullet for Clinton’s public defense. Such referrals rarely result in criminal investigations, much less charges, and the eventual, inevitable decision not to pursue the matter would allow Clinton to claim vindication.
Ultimately, though, details about the private email server continue. And as they do, they are making Clinton’s blanket assertions that she faithfully followed all laws and regulations related to both federal records and classified information increasingly untenable.