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:
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.