Marked Classified: Newly-Released Email Undermines Yet Another Hillary Excuse

Guy Benson
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Posted: Jan 05, 2016 10:27 AM
Marked Classified: Newly-Released Email Undermines Yet Another Hillary Excuse

Saturation-level media coverage of the Republican presidential primary, coupled with the uncompetitive nature of the Democratic nominating contest, has largely relegated Hillary Clinton's ethical travails to the back burner. Her national security-compromising email scandal nevertheless remains the subject of an active and expanded investigation by the FBI, and the State Department released another batch of her official correspondence (those work-related emails that weren't unilaterally destroyed or withheld, that is) over the holiday weekend, under federal court order. One of the newly-released emails appears to undermine the final permutation of Mrs. Clinton's evolving excuses regarding her improper handling of classified material. As we've documented, the former Secretary of State originally insisted that no classified information had passed through her unsecure private server. When that assertion proved comprehensively false, she stated that she hadn't personally sent or received any of that data, and that none of the sensitive content had been classified at the time. Wrong on all counts. Running out of politically viable options, Hillary settled on the heavily-parsed explanation that none of the more than 1,000 classified emails -- including 275 messages in the the most recent tranche -- had been marked classified at the time of their origination. This distinction is legally irrelevant; experts say it was Clinton's duty to immediately identify sensitive material, and act accordingly. She personally signed a document in 2009 recognizing this obligation, explicitly acknowledging that it pertained to the treatment of classified information, both marked and unmarked:


In short, the "marked classified" line has always been empty spin, and Hillary Clinton knows it.  Plus, it's plainly obvious to average people that emails regarding a rogue nation's nuclear weapons program, or the US government's high-stakes, secretive negotiations with a hostile regime should clearly and intuitively fall under the 'classified' umbrella -- even if agencies are still fighting over which specific level of secrecy categorization should apply (the rules favor the entity that produced the intelligence in question).  But so long as Mrs. Clinton continues to cling to her disingenuous fig leaf, she exposes herself to more allegations of malfeasance and cover-up.  The Washington Examiner reports:

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. Alec Gerlach, a State Department spokesman, said Koh's email contained attorney-client discussions and was thus considered "confidential" only in the legal sense at the time. "The phrase 'privileged and confidential' is often used by attorneys to indicate a likely attorney-client work product, and in no way indicates a national security classification, which is an entirely separate matter regulated by Executive Order 13526," Gerlach told the Washington Examiner. However, a large portion of the Koh email was officially classified as "confidential" by the State Department before being posted online late Thursday afternoon...The email discussed ongoing negotiations with the Egyptian government over a U.S. non-governmental organization that was then facing legal trouble in the country.

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.  Parting thought: Even if federal investigators produce reams of evidence that prompt a referral for prosecution, what are the chances of Barack Obama's Justice Department actually seeking an indictment against Democrats' presumptive presidential nominee? The FBI director says President Obama's pronouncement of Hillary's innocence will not impact the bureau's independent investigation. That may be true, but it telegraphs the administration's mindset. Remember, the Obama DOJ put a partisan donor in charge of the IRS "probe," which triggered zero prosecutions.  And we've recently learned that these corrupt VA officials are also off the legal hook:


If the FBI recommends charges against Hillary Clinton, and that recommendation is promptly quashed by the hopelessly politicized Obama administration, expect whistleblowers to leak like a sieve. Democrats have likely concluded that even though the resulting news coverage could get ugly -- replete with cries of cover-ups and the partisan manipulation of justice -- that burst of negativity would still be preferable to a nominee saddled with a federal indictment. They're probably right.

UPDATE - A source on the Hill emails: "The one thing I’d point out about your post on that Clinton email is it is redacted using the classification 1.4(B) which denotes that the message contains foreign government information which is considered born classified." He cites this Reuters report from September:

In all the 87 email threads examined by Reuters, the State Department has blanked out the confidential information in the public copies, adding the classification code "1.4(B)", denoting foreign government information. This is the only kind of information that presidential executive orders say is "presumed" to likely harm national security if wrongly disclosed. State Department regulations describe it as the "most important category of national security information" its officials encounter.

This again underscores how irrelevant Hillary's "marked classified at the time" dissembling is. Her defenders will point out that the "confidential" marking on the email above applied to a different sort of sensitivity. Again, I say: Good luck splitting that hair with already cynical voters. But the State Department's redactions within said email were executed under classification 1.4B(B), which by definition pertains to information "presumed to likely harm national security" if improperly handled, resulting in disclosure. This is the case with hundreds of classified emails that passed through Mrs. Clinton's unsecure private server, which she used exclusively to conduct official business via email. And that's why the FBI's expanded criminal investigation is still active.