Did Hillary e-mail contain information marked classified?

posted at 4:41 pm on January 5, 2016 by Ed Morrissey

The Washington Examiner says yes, as does my colleague and pal Guy Benson. The truth in this case is a little more … nuanced. Let’s start with the Washex’ Sarah Westwood’s report from New Years Eve on the massive State Department holiday document dump:

A batch of Hillary Clinton’s private emails that were published Thursday by the State Department included at least one classified message that appeared to have been marked as “confidential” when it was written, which could contradict Clinton’s longstanding argument that nothing she sent or received bore classification markings.

The record was among 275 emails that were upgraded to fully or partially classified in the latest trove of emails.

The email chain in question included a message from Harold Koh, a State Department legal adviser, that was listed as “confidential” both in the subject line and in the body of the email. “Confidential” is the lowest level of classification, followed by “secret.” Most of Clinton’s now-classified emails have been upgraded to the “confidential” level.

Guy picked up the argument today:

So a message pertaining to US negotiations with the Egyptians was flagged as “confidential” — a formal level of classification — in the subject line and body of the email.  The State Department now says that this contemporaneous marking was used in the legal context of of attorney-client privilege, and “in no way indicates a national security classification.”  But as the Examiner piece points out, State still designated “a large portion” of the overall email as classified prior to its public release.  Do Clinton’s defenders believe this technicality will maintain the already-discredited standard she’s been hiding behind?  “Sure, this email we’ve determined to be classified — because it discusses sensitive discussions with a foreign government — was, in fact, marked with a ‘confidential’ warning at the time, but that was referring to a different type of confidentiality.”  Not terribly compelling.

Well, it’s not terribly compelling, but that’s not because it’s not true. It’s not compelling because it’s irrelevant. Here’s a screen shot of the e-mail from Koh:

koh-email

The reference to “PRIVILEGED AND CONFIDENTIAL” is to the attorney-client privilege between Koh and the State Department. That is made explicitly clear in the very first line of the e-mail message, which notes that the declaration refers to “ATTORNEY-CLIENT PRIVILEGE/DELIBERATIVE PROCESS/ATTORNEY WORK PRODUCT.” Koh includes this as a pre-emption against either a FOIA demand or Congressional subpoena, using both the legal relationship and an executive-privilege claim to boot. These are not the markings used by the government for sensitive classifications, which require top and bottom markings as well as markings on each paragraph to note what specifically is classified and at which level.

But this is all irrelevant, for two reasons. The first is that it doesn’t make any difference whether the information is properly marked when it comes to enforcing 18 USC 793, 18 USC 1924, or 18 USC 1001. In fact, the information doesn’t even have to be classified at all under 18 USC 793, only sensitive and relating to national security. It is incumbent on all cleared parties to the information to correctly determine the level of classification and handle it properly, while only communicating it over authorized and secure channels. That applies especially for a Secretary of State who required everyone to communicate with her over Hillary’s secret, unauthorized, and unsecured e-mail system.

The second reason Koh’s designation is irrelevant is that his message coincidentally contained classified information which was then transmitted and stored in this unauthorized system. The two privileges claimed by Koh in his memo do not apply to that violation of federal statute, nor do they protect Hillary Clinton either. Koh might find himself in some legal trouble over this, depending on whether the Department of Justice plans to do its job.

So while this really doesn’t rebut Hillary’s backtracking to claiming she never sent or received marked classified information, it’s yet another example of why that claim is meaningless anyway. We now have more than a thousand examples of this, which should prompt the question of whether the DoJ plans to enforce the law when it comes to the elites as they do with the hoi polloi.

Update: The headline was a little awkward, so I added “contain.” My original use had e-mail as a verb, but Hillary Clinton didn’t send this message, so that really doesn’t work either.


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Comments

Ed, fix the title.

theCork on January 5, 2016 at 4:44 PM

And hence will follow the jaded responses that DoJ will exercise “prosecutorial discretion” and dump the whole case down the memory hole, followed by Tlaloc drawing an equivalence between such neglect and evidence of innocence, and further, saying that those discouraged individuals are saying the same thing he has been saying all along.

The Schaef on January 5, 2016 at 4:46 PM

Who cares. She was The Secretary of State, and as such she was the progenitor of classified information. She said it, and then someone else stamped classified on it. I think it’s safe to say that she wasn’t even qualified to know which of her communications were classified, and that’s why she should only have been doing business on Government servers. None of that excuses her from the law.

DFCtomm on January 5, 2016 at 4:48 PM

No matter how much evidence that comes out to show what vile people the Clintons are, the lies, the serial sexual abuse, the scandals, it won’t matter to their supporters. To support the Clintons, you have to have a little scumbag in you to begin with….

Hank_Scorpio on January 5, 2016 at 4:49 PM

At this point, what difference does it make?

hollygolightly on January 5, 2016 at 4:50 PM

Ed, fix the title.

theCork on January 5, 2016 at 4:44 PM

Nothing wrong with it if you read it correctly.

IDontCair on January 5, 2016 at 4:50 PM

Love that picture of Canklepotamus. She is confused (and she just crapped her Depends)

ObamatheMessiah on January 5, 2016 at 4:52 PM

At this point, what difference does it make?

hollygolightly on January 5, 2016 at 4:50 PM

None, because the GOP will do nothing about it.

Just as they will do nothing about obama’s gun grab.

IDontCair on January 5, 2016 at 4:53 PM

How can she retain any kind of security clearance? I would think it would make for an awkward CiC communication system.:)

butch on January 5, 2016 at 4:54 PM

It’s obvious to everyone by now that she clearly broke the law when it comes to the handling of classified material.

The only question remaining is whether or not something is going to be done about it.

Or is she, for some reason, just as unimpeachable as Obama?

Oxymoron on January 5, 2016 at 4:56 PM

“What difference, at this point, does it make?!”

In a way, the dumb voters in this country deserve that awful human being as their president.

No matter how much evidence that comes out to show what vile people the Clintons are, the lies, the serial sexual abuse, the scandals, it won’t matter to their supporters. To support the Clintons, you have to have a little [lot of] scumbag in you to begin with….

Hank_Scorpio on January 5, 2016 at 4:49 PM

FIFY. :)

See: Lanny Davis.

Aizen on January 5, 2016 at 5:00 PM

who cares anymore? I don’t support Hillary and don’t know many who will admit supporting her either…..so what’s the point……the emails issue is really overdone and just plain dumb.

Pragmatic on January 5, 2016 at 5:03 PM

Give it up. Hillary will never be jailed, indicted, or censured for her actions. The Dems won’t allow it, and it is they who the Republicans take their marching orders from.

Nomennovum on January 5, 2016 at 5:03 PM

So sick of this bullsh!t!!! This a$$hole could get caught with jimmy hoffas remains in her bed and nobody would give two sh!tz from a fat frogs azz……

Indiana Jim on January 5, 2016 at 5:05 PM

none of it really matters.
she was SUPPOSED to use a .gov email address for state dept use.
she REFUSED to setup a .gov email address and had someone provision her own email server to bypass .gov mail servers.
THIS is the root cause of everything.

dmacleo on January 5, 2016 at 5:06 PM

the emails issue is really overdone and just plain dumb.

Pragmatic on January 5, 2016 at 5:03 PM

Well then, certain crimes are more equal than other crimes I guess.

antipc on January 5, 2016 at 5:07 PM

everyone knows it’s a crime…..it’s out of our hands so let’s get busy trying to elect someone we can support…..GO TRUMP GO!!!!!!!!!!!!!
TRUMP/CRUZ 2016

Pragmatic on January 5, 2016 at 5:12 PM

Neither Hillary nor any of her inner circle stooges were able to identify classified information. I’m not sure they even knew they were supposed to do it. Totally unqualified and incompetent – the lot of them. A total disgrace.

forest on January 5, 2016 at 5:14 PM

Love that picture of Canklepotamus. She is confused (and she just crapped her Depends)

ObamatheMessiah on January 5, 2016 at 4:52 PM

Or she just got a text from Anthony Weiner.

Flange on January 5, 2016 at 5:21 PM

Sounds like a great campaign ad.
Trump keeps an impressive amount of physical records, including a sticky note with Lindsay Graham’s phone number from years ago. Hillary deletes 50,000 emails that take up zero space.
airupthere on September 22, 2015 at 4:37 PM

Schadenfreude on January 5, 2016 at 5:24 PM

Is there anybody on the face of the earth that doesn’t KNOW that she did not give a rat’s ass for the security of this country. She saw the office as a money laundering opportunity period!

The pertinent question is what will be done about it…and we all KNOW the answer to that…ZERO

Thank you GOPe

winston on January 5, 2016 at 5:25 PM

Killary may not have the mark of Satan on her forehead, but I know it’s there all the same.

vnvet on January 5, 2016 at 5:30 PM

Perfect picture, Ed

Schadenfreude on January 5, 2016 at 5:34 PM

Give it up. Hillary will never be jailed, indicted, or censured for her actions. The Dems won’t allow it, and it is they who the Republicans take their marching orders from.

Nomennovum on January 5, 2016 at 5:03 PM

Those 900+ stolen FBI files have certainly enjoyed a looooong shelf life, haven’t they?

Del Dolemonte on January 5, 2016 at 5:35 PM

Hillary looks like Dr. Evil in that pic.

Her Chinese outfits are perfect for her socialist character.

Schadenfreude on January 5, 2016 at 5:36 PM

The Benghazi movie will show Hillary for the beast she is.

She lied to the families about the video and keeps blaming them now.

Schadenfreude on January 5, 2016 at 5:38 PM

The Benghazi movie will show Hillary for the beast she is.

Schadenfreude on January 5, 2016 at 5:38 PM

To the people who watch it, who already hate her…so 0 net change?

Tlaloc on January 5, 2016 at 6:01 PM

Now can we vote for Hillary? – LIVs

ghostwalker1 on January 5, 2016 at 6:15 PM

BRUTAL post and yet, and AWESOME post full of truth and links galore!

You’re welcome.

Key West Reader on January 5, 2016 at 6:17 PM

Always knew you were a zero Tlaloc, but thanks for affirming.

Schadenfreude on January 5, 2016 at 6:25 PM

Always knew you were a zero Tlaloc, but thanks for affirming.

Schadenfreude on January 5, 2016 at 6:25 PM

So you’re angry at me because you were gullible enough to think the email ‘scandal’ was a real scandal?

Hey, I tried to tell you…

Tlaloc on January 5, 2016 at 6:31 PM

Tialoc…such the lapdog. Hope you grow up some day.

CWforFreedom on January 5, 2016 at 6:42 PM

Did Hillary e-mail contain information marked classified?

Were 14 malnourished little boys found living in dog cages in Hillary’s basement?

No matter what the story is, nothing will be done to her.

BobMbx on January 5, 2016 at 6:44 PM

I want to see Hillary in a cell as much as anyone, but “PRIVILEGED AND CONFIDENTIAL” it attorney-client, not government classification. The message may have additionally had classified information in it, but this label is meaningless.

munseym on January 5, 2016 at 6:54 PM

Did Hillary e-mail contain information marked classified?

Were 14 malnourished little boys found living in dog cages in Hillary’s basement?

No matter what the story is, nothing will be done to her.

BobMbx on January 5, 2016 at 6:44 PM

Depends on what race they are. She does eat babies for lunch.

Key West Reader on January 5, 2016 at 7:04 PM

I see that you’re still clinging to the belief that Hillary didn’t break the law by mishandling classified information. I’m glad that I get to continue to have so much fun with this.

blink on January 5, 2016 at 6:49 PM

And I see you still have to lie about my positions.

Tlaloc on January 5, 2016 at 7:22 PM

Tialoc…such the lapdog. Hope you grow up some day.

CWforFreedom on January 5, 2016 at 6:42 PM

Is that what you call your state of blinkered disconnect from reality? I think you may be mislabeling it.

Tlaloc on January 5, 2016 at 7:23 PM

It is incumbent on all cleared parties to the information to correctly determine the level of classification and handle it properly, while only communicating it over authorized and secure channels.

This.

If any of Hillary’s underlings had done what she has done, they’d be barred from ever handling classified information again. Their clearances would be rescinded, and they would, in essence, be out on the street.

And Hillary wants the top dawg position in the United States. Well, she hasn’t shown good secrecy skills in the test position, so why should the country ever be put at risk?

unclesmrgol on January 5, 2016 at 9:08 PM

So you’re angry at me because you were gullible enough to think the email ‘scandal’ was a real scandal?

Hey, I tried to tell you…

Tlaloc on January 5, 2016 at 6:31 PM

Oh, it’s a real scandal, all right. If a hacker could get into one of her recipient’s accounts, it’s a no-brainer that state players could too. And once in there, it’s simple to send Hillary a zero-day that opens her entire account to inspection.

Both the Russians and the Chinese have Microsoft Office based zero-days of this type — they’ve been in the news quite frequently over the past few days. Given that Hillary appears to be an inveterate Windows user, I believe everything she knew was also known to our adversaries.

unclesmrgol on January 5, 2016 at 9:11 PM

Depends on what race they are. She does eat babies for lunch.

Key West Reader on January 5, 2016 at 7:04 PM

Except her grandchildren. I noticed when she talked about Chelsea’s tissue mass as if it were a child.

These people know what they are doing.

unclesmrgol on January 5, 2016 at 9:15 PM

Oh, it’s a real scandal, all right. If a hacker could get into one of her recipient’s accounts, it’s a no-brainer that state players could too. And once in there, it’s simple to send Hillary a zero-day that opens her entire account to inspection.

Both the Russians and the Chinese have Microsoft Office based zero-days of this type — they’ve been in the news quite frequently over the past few days. Given that Hillary appears to be an inveterate Windows user, I believe everything she knew was also known to our adversaries.

unclesmrgol on January 5, 2016 at 9:11 PM

Which would be a good argument except the reason the exploits you are talking about have been in the news is they were used to crack US government servers….so arguing Hillary would have been better off on them is kind of a nonstarter.

Tlaloc on January 5, 2016 at 10:03 PM

Fast and Clean here it is:

Is Hillary really smart? NO
Is Hillary guilty of classification violations? YES
Does Hillary lie? YES
Will Hillary see the inside of a Court of Law? NO

It is important to know that (1) being guilty of a crime, (2) being tried for that crime, (3) being found guilty of the crime, (4) being sentenced for the crime, and (5) serving the punishment for the crime are all totally separate occurrence except that to serve the punishment you must pass all the others in order.

She is a high profile influence peddling public figure. Like it or not that means a case would go forward very very carefully with extreme over site. Hillary has almost unlimited resources for defense. Together this means a lot of time and money.

She is now 68 years old.
Prepare case may take 3 years. Age then 71
Near the end of her first term as President.
Endless delays by her lawyers, 5 years. Age then 76
The end of her second term as President.
Case goes to trial, endless delays, 3 years. Age then 79
She personnel still has not seen the inside of a court room.
MISS TRIAL go back to the beginning and start over, 5 years. Age then 84.
Verdict GUILTY AS CHARGED.
Punishment phase of trial. Extenuation and midagation, 1 year. Age then 85.

Sees one day in court for sentencing only.
Estimated cost of the trial in the $Billions of Dollars.
Sentencing takes place about 6 years after her expected life span. Sees only one day in court and serves two terms as President of the United States. So what is the point of the Trial in a Court of Law. NONE !

Is there any hope for Justice? YES?

There is always the Court of Public Opinion.
Takes less time, requires less proof, can make money and be just as fore ever as anything else.
It dose require a free press that will tell the truth and a public that will listen and think for their selves.
Good luck on both points.

jpcpt03 on January 5, 2016 at 11:06 PM

Which would be a good argument except the reason the exploits you are talking about have been in the news is they were used to crack US government servers….so arguing Hillary would have been better off on them is kind of a nonstarter.

Tlaloc on January 5, 2016 at 10:03 PM

It’s not a question of being better off. It’s a question of what the law requires to keep government officials on the record and accountable.

There wasn’t even a whiff of this server’s existence in the eye of the public or government oversight bodies, until a significant congressional investigation unearthed it. Else, they would have been content to just let it keep flying under the radar.

Think of all the FOIA requests that have been made of State over the years, and they could just come back and say, welp, we didn’t find anything within the scope of your request, failing to mention that Hillary never uses the State resources to conduct State business.

And leaving all of that aside, highlighting government mail servers as being a poorly secured repository for sensitive information only undermines your larger philosophy that the government is a trustworthy and appropriate tool to solve the nation’s problems.

But of course, this is yesterday’s article, so you’re already long gone and I might as well be pissing into the wind. But whatever.

The Schaef on January 6, 2016 at 10:18 AM