Maybe betting on stupidity is the point. Joe Scarborough rightly declared this morning that it takes a high level of ignorance and/or obstinacy at this point to believe anything Hillary Clinton says about her e-mail server and the classified information that State has discovered on it – including in e-mails Hillary wrote herself. That has been true all along, however (via The Right Scoop):
Come on, man. Even when Hillary made this declaration, we knew that at least 30,000 e-mails had been sent as work product through her home-brew system over four years. Were we to believe that a Secretary of State never discussed any classified information in any of those communications? You’d have to have been an idiot in March to buy that line. Six months later, you’d have to be deliberately obtuse.
Have we seen the most damaging e-mails in the case of the Saga of the Secret Server? In truth, we’ve only seen a fraction of e-mails that went through Hillary’s unsecured and unauthorized e-mail system — less than half of what Hillary and her attorneys turned over to State, with more to come. That was less than half of all the e-mails on the system, the majority of which Hillary and her team deleted before they wiped the server, even if the wipe might not have been as successful as they assumed.
We may not be seeing some of the evidence that has come to the State Department’s attention, though, thanks to a sleight-of-hand in the classification process. Two sources told Fox News’ Catherine Herridge that some of the material has been declared part of the “deliberative process,” a designation that keeps it from Congress or the public:
At least four classified Hillary Clinton emails had their markings changed to a category that shields the content from Congress and the public, Fox News has learned, in what State Department whistleblowers believed to be an effort to hide the true extent of classified information on the former secretary of state’s server.
The changes, which came to light after the first tranche of 296 Benghazi emails was released in May, was confirmed by two sources — one congressional, the other intelligence. The four emails originally were marked classified after a review by career officials at the State Department. But after a second review by the department’s legal office, the designation was switched to “B5” — also known as “deliberative process,” which refers to internal deliberations by the Executive Branch. Such discussions are exempt from public release.
The B5 coding has the effect, according to a congressional source, of dropping the email content “down a deep black hole.”
Those seeing the released e-mail have noted the classification markings on some documents, which list codes for the reasons for redactions along with the classifications of the information. Those codes explain the reasons for classification, most of which has to do (unsurprisingly for the State Department) with diplomatic negotiations and foreign sources of information. Bear in mind, too, that the intelligence community has had its access restricted to these e-mails, perhaps in part because their initial audit of 40 e-mails embarrassed State, so we are not seeing classification markings relating to intelligence sources, at least so far.
The “deliberative process” tag essentially applies a claim of executive privilege on these documents. Thus far, though, neither Hillary Clinton nor John Kerry or Barack Obama have made a formal declaration about executive privilege in these matters. Nevertheless, by applying a B5 designation, the practical effect is to make these documents unavailable under FOIA or Congressional review. Ironically, this creates a situation where a demand of secrecy is being used to defeat oversight on whether the Secretary of State violated the protocols that are designed to keep classified information secret.
Can the Secretary of State claim executive privilege? Presidents can and do, but below that the question becomes much more murky. Executive privilege derives from the separation-of-powers doctrine of co-equal branches of government. However, Congress gives some of its authority to most executive-branch agencies, which means that their oversight role becomes much more strong. That argument is probably weakest with the State Department, though, as foreign policy falls squarely in the purview of the executive branch. Congress has legitimate oversight over State, but a claim of executive privilege might carry some weight in a court fight over it.
Herridge also hears about a conflict of interest in the designation process. A conflict over that roped in a familiar name:
Fox News is told there were internal department complaints that Duval, and a second lawyer also linked to Kendall, gave at the very least the appearance of a conflict of interest during the email review. A State Department spokesman did not dispute the basic facts of the incident, confirming to Fox News the disagreement over the four classified emails as well as the internal complaints. But the spokesman said the concerns were unfounded.
The whistleblowers told intelligence community officials that they did not agree with the B5 changes, and the changes had the effect of shielding the full extent of classified content on the server. The incident was referenced in a Washington Times report mid-August, but this is the first time fuller details have been available. Because the emails are now marked B5, or deliberative, it is impossible to know the content and relevance to the congressional and FBI investigations.
The internal State Department disagreement was so significant that it rose to the level of Under Secretary for Management Patrick Kennedy, who is deeply involved in the email controversy, as Clinton’s server arrangement required his formal signoff or tacit approval. Asked who signed off on the private server on Tuesday, State Department spokesman Mark Toner said, “I personally don’t know.”
What a shock! Kennedy, who was also involved in the Benghazi scandal, is the point man for determining what Congress — and the FBI, apparently — does and does not see. That may change, however, if the FBI manages to restore the original server files or accesses the rump files from David Kendall’s thumb drives that contain the post-deletion e-mails handed over to State. At that point, the B5 designations may end up being moot anyway. For now, though, it looks like a transparent attempt to shield Hillary and her team from evidence of criminal mishandling of classified data.