The FBI and its director James Comey have been careful not to be swept into the political campaign in comments about the investigation of Hillary Clinton’s personal server. The Clinton campaign, and the candidate herself, have repeatedly scoffed at any danger of an indictment and insisted that this is merely a “security review” or “security inquiry.” Indeed, close Clinton confidant Sidney Blumenthal was on CNN this morning stressing that this was nothing more than a security review. Now Comey is being quoted by Fox News chief intelligence correspondent Catherine Herridge as directly refuting this core claim by Clinton and saying that this is a criminal investigation. He would also likely disagree with Bill Clinton’s recent claim that the investigation was just a “game” and nothing more.
Heritage asked Comey if the bureau is conducting a “security inquiry” into the server and Comey responded “I don’t even know what that means, a security inquiry. We do investigations here at the FBI.” While that certainly does not mean that Clinton will be indicted, it directly contradicts her repeated characterization in the scandal — and a virtual mantra by Clinton supporters.
Some of us have been questioning the dismissal of the investigation as an inquiry as well as the clearly misleading argument that the key issue was whether material was marked as classified. The emails never had to be marked to be considered classified. Yet, Hillary Clinton has insisted that “I never sent classified material on my email, and I never received any that was marked classified.” The key of this spin is again the word “marked.” I have previously discussed why that explanation is less than compelling, particularly for anyone who has handled sensitive or classified material. As I discussed earlier, virtually anything coming out of the office of the Secretary of State would be considered classified as a matter of course. I have had a TS/SCI clearance since Reagan due to my national security work and have lived under the restrictions imposed on email and other systems. The defense is that this material was not technically classified at the time that it was sent. Thus it was not “classified” information. The problem is that it was not reviewed and classified because it was kept out of the State Department system.
Moreover, most high-level communications are treated as classified and only individually marked as classified when there is a request for disclosure. You do not generate material as the Secretary of State and assume that it is unclassified. You are supposed to assume and treat it as presumptively classified. Indeed that understanding was formally agreed to by Clinton when she signed the “Classified Information Nondisclosure Agreement,” or SF-312, which states that “classified information is marked or unmarked classified information, including oral communications.” Otherwise, there would be massive exposure of classified material and willful blindness as to the implications of the actions of persons disregarding precautions. For example, there is not a person standing next to the President with a classification stamp in the Oval Office. However, those communications are deemed as presumptively classified and are not disclosed absent review.
Under the same logic, the President could use a personal email system because his text messages by definition are not marked as classified. Classified oral communications are not “marked” nor would classified information removed from secure systems and sent via a personal server. Likewise, classified oral communications that are followed up with emails would not be “marked.” This is the whole reason that Clinton and others were told to use the protected email system run by the State Department. We have spent hundreds of millions of dollars to secure such systems.
In other developments, the FBI has agreed to some limitations on questioning top Clinton people as evidenced by the walk out of Cheryl Mills when asked about aspects of the email system and the review of emails. There was also a recent disclosure that the State Department is saying that all emails from the IT person responsible for setting up the server have gone missing.
Reprinted with permission from JonathanTurley.org.
