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Revisiting Clinton and Classified Information

At his July 5 press conference, FBI Director James Comey said a “very small number” of emails sent and received by Hillary Clinton over her private server “bore markings indicating the presence of classified information” — contradicting Clinton’s claims that she “never received nor sent any material that was marked classified.”

But now we are learning more about those emails from Comey, who testified before the House Oversight Committee on July 7, and State Department spokesman John Kirby, who addressed these emails at press briefings on July 6 and 7:

  • Comey said three emails had “portion markings” on them indicating that they were classified, but they were not properly marked and therefore could have been missed by Clinton. He said the emails were marked as classified with the letter “C” in the body of the email.
  • Kirby said the State Department believes that at least two of the emails were mistakenly marked as confidential. He could not speak to the third email, saying the department didn’t have​ “all of the records and documents that the FBI used in their investigation.”
  • Comey told the committee he is “highly confident” that FBI investigators consulted with the State Department about the marked emails. But he said he did not know that the department believes that any of them were marked in error.

The issue is a bit complicated, but important, because it provides Clinton with a stronger defense against claims that she sent and received material that was marked as classified over her private server when she was secretary of state.

At a State Department briefing on July 6, Kirby addressed a report in the New York Times that Comey was “evidently referring to two emails that one of Mrs. Clinton’s close aides, Monica R. Hanley, sent to prepare her for telephone calls with foreign leaders.” The Times report was based on interviews with anonymous State Department officials.

New York Times, July 5: One email, dated Aug. 2, 2012, noted that Kofi Annan, the former secretary general of the United Nations, was stepping down as special envoy trying to mediate the war in Syria. A second one, sent in April 2012, discussed Mrs. Clinton’s call to the newly inaugurated president of Malawi.

Each was marked with a small notation, “(C),” indicating it contained information classified as “confidential.”

Other paragraphs in the note about Mr. Annan’s resignation were marked “(SBU),” for “sensitive but unclassified.” That designation appears in more than 1,000 of the 30,000 work-related emails that Mrs. Clinton turned over to the State Department, including some later “upgraded” to higher levels of classification. The official said that the notations were part of “a standard process” when preparing a phone call, which would be “confidential” until it occurred and then considered unclassified.

Kirby confirmed the Times report but then said it appears that in both instances the markings were the result of “human error” during the development of “call sheets,” which are memos that contain information that can be used when talking to foreign leaders. The department marks a portion of the call sheets as “confidential” — the lowest level of classified information — until the secretary makes a decision whether or not to call the foreign leaders. He explained that this is done to give the secretary time to make a decision and to avoid potential embarrassment if it turns out that the secretary decides not to call the foreign leader.

Kirby said based on the email traffic, it appears that Clinton had already made the decision to call then Malawi President Joyce Banda and Annan, so the “confidential” markings should have been removed when Hanley sent the emails. (He made his remarks at about the 12-minute mark.)

Kirby, July 7: I’m not going to get into litigating each and every one of these emails. What I said yesterday is — often time it is practice to mark them confidential in advance of a decision to make a call, and then once a decision is made they’re made sensitive but unclassified and they are provided to the secretary in a way that he or she can then use as they’re on the phone. By all appearances, it appears to us the remnant C, if you will, on this particular email/call sheet was human error because it appears to me from the traffic that the secretary had been asking, had been wanting the call sheet, which I would think would indicate that the secretary was at that time intending to make the call. But I can’t say that for sure, because I wasn’t here and I wasn’t involved in the email traffic itself. So, I’m being careful about how I’m wording this because we’re making assumptions here that I simply don’t know for a fact are true.

Kirby said he had no information about the third email that Comey said also contained the letter “C” marking it as confidential.

At his hearing, Comey was asked repeatedly about the marked emails, with Republicans accusing Clinton of lying, while Democrats defended her actions. As we have written, Clinton had repeatedly said she did not send or receive any emails marked classified. As recently as July 3, Clinton said that she “never received nor sent any material that was marked classified.”

For example, Republican Rep. Trey Gowdy asked Comey if Clinton was telling the truth when she said that she did not send or receive marked classified material. Comey said she wasn’t.

Gowdy, July 7: Secretary Clinton said there was nothing marked classified on her emails either sent or received. Was that true?

Comey: That’s not true. There were a small number of portion markings on I think three of the documents.

But later in the hearing, Democratic Rep. Bonnie Watson Coleman asked Comey if he knew that the State Department had said that the emails were marked classified in error. Comey replied, “No.”

Likewise, Rep. Matt Cartwright, also a Democrat, asked Comey if the emails were properly classified, and Comey said they were not. (Executive Order 13526 spells out how documents should be properly classified, including a header on the document clearly identifying the email as classified as “confidential,” “secret” or “top secret.”)

Cartwright asked if Clinton could have missed the improper markings. Comey said that that was possible.

Cartwright, July 7: So, if Secretary Clinton really were an expert at what’s classified and what’s not classified and we’re following the manual, the absence of a header would tell her immediately that those three documents were not classified. Am I correct in that?

Comey: That would be a reasonable inference.

There are still unanswered questions. We don’t know anything about the third email that Comey said was improperly marked classified, for example. We’ll update this item if more information becomes available.