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Hillary Clinton’s Emails: An Exhaustive Inquiry

August 7, 2016

The heart of the email issue:

FBI DIRECTOR JAMES COMEY: I do not see evidence that is sufficient to establish that Secretary Clinton or those with whom she was corresponding both talked about classified information on email and knew when they did it, they were doing something that was against the law.
REP. CHAFFETZ: Did Hillary Clinton lie?
COMEY: To the FBI? We have no basis to conclude she lied to the FBI.
CHAFFETZ: Did she lie to the public?
COMEY: That’s a question I’m not qualified to answer. I can speak about what she said to the FBI.
CHAFFETZ: Did Hillary Clinton lie under oath?
COMEY: Not to the FBI.
— July 7, 2016 Testimony before House Oversight Committee

I hope this is my last post on Hillary’s emails. But I’m so tired of this being misstated in the press, that I wanted to, once and for all, exhaustively examine this question and provide a service to anyone who actually wants to know the truth in detail. I’m quite confident Hillary-haters will not read this, because they’re not interested in the truth. But for real people struggling on it, the details matter. Feel free to forward this to them.

If you’re actually concerned about reports that claim Hillary Clinton lied regarding her emails, they are admittedly impossible to explain in a short sound bite. You’ll have to read the lengthy FAQ below I created that spells it out in detail with sources. My primary source is

Q: Did Hillary Clinton send or receive properly marked classified email in her private email account?

A: No, Hillary Clinton did NOT send or receive classified material properly marked as classified at the time she sent or received them.

Q: How do you properly mark classified material in email?

A: According to the classification manual, you have to put that classification in the header of the email. Out of 30,000 emails, NONE of them were marked classified in the header.
Here’s what FBI Director James Comey said on this:
REP CARTWRIGHT: So, if Secretary Clinton really were an expert at what’s classified and what’s not classified and we’re following the manual, the absence of a header would tell her immediately that those three documents were not classified. Am I correct in that?
COMEY: That would be a reasonable inference.

FBI Director Comey concedes that, due to classification protocol, it is a “reasonable inference” that anyone reading an email without it being marked “classified” in the header could infer that there was no classified information in the email. If classified materials were marked outside the header, that’s an improper marking.

Q: So Hillary did nothing wrong with properly classified material. Did she do anything wrong with improperly classified material?

A: There are two types of improperly classified material. You can label something unclassified when it should be classified. And you can label something classified when it should be unclassified.

Q: Let’s start with the worst stuff, material that should have been labeled classified but was not so labeled.

A: Both Clinton and Comey have said that some 100 emails in 50-odd email chains (fewer than 1% of them) should have retroactively been marked classified, with eight of them at a high level of classification (“top secret”). This is what Clinton has apologized for. Although there is no evidence her private email servers were hacked (unlike, for example, the DNC’s), they arguably could have been. And if they had been, this improperly marked material that should have been marked classified (but wasn’t) could theoretically have been hackable. But to be clear, none of these emails were marked classified at the time.

Q: What kind of material are we talking about?

A: It’s hard to know anything that’s top secret, but Slate
has reported that seven of the eight top secret emails classified as top secret contained information in the public domain regarding our drone strikes in Pakistan that had been reported on at length in the New York Times and dozens of newspapers in the USA and around the world.

Q: Why would public information be classified retroactively as “top secret”?

A: When we conduct drone strikes in a country we are at war against (like Afghanistan), we have no problem with public announcements. But when the CIA conducts drone strikes in a supposed ally we are not at war against (like Pakistan), we don’t admit it publicly even though everyone in the world knows it’s true. That’s State Department protocol. For example, a State Department email mentioning our operation to kill Bin Laden would presumably be considered top secret today. But everyone in the world knows we’ve done it.

Q: OK, let’s go to the other stuff. Stuff that was marked classified. I’m not concerned about classified material that was not marked classified at the time Hillary reviewed it. That’s not her fault. But she should not have sent material marked classified. And she should not have lied about it.

A: But here’s the dirty little secret on that. The tiny bit of stuff marked classified in “portion markings” (not the header) was actually not classified at all. It appears to be unclassified information improperly marked as classified.

Q: What? Wait. No. I saw this on CNN:
REP GOWDY: Secretary Clinton said there was nothing marked classified on her emails either sent or received. Was that true?
COMEY: That’s not true. There were a small number of portion markings on I think three of the documents.
See? Comey did say, “There were a small number of portion markings on I think three of the documents.” What are portion markings?

A: Portion markings are material that is not properly marked as classified in the email header but marked with a “(C)” deep down in a multi-forwarded email chain that, Comey testified, Hillary did not realize was a confidential marking.

Q: Does it matter?

A: Let’s first note the curious way Comey answered this question. He wasn’t sure about how many there were. Why would he say he “thinks” there were three? Why didn’t he know for sure? Comey was under oath. He was determined to get it right. So before I answer your question, let’s all digest that the director of the FBI after conducting an exhaustive investigation on the person most likely to be the nation’s next President doesn’t remember how many of a minuscule portion of the emails (1 in 10,000 of the released emails or 0.01%) had “portion markings” or not.

Q: Did he not think it mattered?

A: Apparently it wasn’t a big deal to the FBI. As noted above, none of the emails were marked classified in the header. So if Hillary missed the fact that two or three were marked deep down with “portion markings,” Comey did not consider this tiny detail important enough to even definitively know the answer. He spelled out 110 emails in 52 email chains that should have been retroactively marked classified. But these two or three emails that were actually marked classified in portion markings were not worthy of his detailed attention.

Q: OK. So Comey doesn’t care. Should we? What were these three portion markings (if three existed, because the FBI director honestly doesn’t know whether it was two or three or four)?

A: Well, the State Department tracked down two of them and concluded they were IMPROPERLY marked classified.

Q: What? How could unclassified info be improperly marked classified?

A: Well, it seems that the lowest classification (confidential) is used right before the Secretary of State is about to call a foreign leader. That way, if the Secretary of State doesn’t call the foreign leader, the foreign leader is not embarrassed by learning that she was going to make the call but the press of business kept her from doing so. The practice is to remove the confidential designation after the call was made.

Two of the three emails concerned Clinton’s calls to UN Secretary General Kofi Annan and the President of Malawi. According to the State Department, the portion markings of confidential should have been removed after the calls were made (!) They were confidential pre-call but by the time they were forwarded in an email, they were post-call and no longer confidential. Emails are dated things. What was once confidential was no longer confidential.

In sum, the portion marked material was NOT confidential after the phone calls were made. Comey admitted he didn’t consult the State Department about this.

Q: Did Comey screw up? Why wouldn’t he consult the State Department? This is a big deal in a Presidential campaign. Shouldn’t Comey know whether or not he has just accused the Democratic nominee for President of lying?

A: Well, Comey’s job was not to determine whether Hillary Clinton was lying or not in public or whether her public statements were accurate. He even conceded that he hadn’t examined her public statements. See the quotation that begins this long post above.

Comey’s job was to determine whether a crime was committed, and it wasn’t. He also had to determine whether she lied to the FBI. He determined she didn’t. It was just not Comey’s job to determine whether unclassified emails improperly marked as classified in portion markings were sent or received by Hillary Clinton because it has no bearing on a criminal case he knew had no merit.

Q: But this has major political implications!

A: And here, Comey did cross a line. The FBI should not have leaked the investigation to the public at all. If the FBI investigates someone for a crime and determines no crime has been committed, it can do incalculable damage to someone by inferring a crime where no crime was done. Generally when the FBI or any law enforcement authority looks into a crime, they inform the target but they do NOT inform the public. Ask Richard Jewell how he felt about being investigated into the Atlanta bombing but then being found fully innocent.

Even after the investigation went public, Comey violated his duty when he made a personal comment about the “carelessness” of Clinton using a private email account. It’s not Comey’s job to personally comment to try to influence a Presidential race. He’s supposed to be a neutral law enforcement officer. Negligence, as he made clear, was insufficient to charge anyone. In the long history of the 99-year old law, it had ever been used to prosecute anyone outside of an espionage case with “carelessness” or “negligence.”

What Comey should have said is this:
“Because, under this statute and the judicial record of enforcing it, carelessness is irrelevant to the question of whether or not a crime was committed, whether or not Hillary Clinton was careless in her emails is a question irrelevant to my investigation and beyond my jurisdiction. The public can make its own determination, but as a law-enforcement official, it would be improper for me to comment on that. Similarly, I wouldn’t comment on whether a victim of a mugging was careless to be near a dark alley at 3 am in the morning. It’s irrelevant to the question of whether a crime was committed, and it’s not my job to impugn anyone.”

Q: So, in sum, you’re saying, if we look at all the details:
1. Clinton did not send or receive email properly marked as classified at the time she sent or received it.
2. All classified material sent by email is required to be marked classified in the header of the email. Clinton neither sent nor received any of this.
3. Some information wrongly marked as unclassified should have been marked classified and was so marked retroactively. Comey criticized Clinton for handling this unmarked material. Clinton has apologized for this. But she never lied about it.
4. There was a tiny bit of information wrongly marked confidential (the lowest level of classification) in “portion markings” that was considered so unimportant to the FBI that Comey did not know for sure how many emails contained it and didn’t even contact the State Department to find out the truth that it was improperly marked because it was no longer classified.

A. You got it! And five more things to hopefully conclude this exhaustive and exhausting inquiry:
1. Hillary Clinton did make a mistake in using her private email for work. It was the same mistake that Colin Powell and hundreds of other public officials made before the new rules about email were set. Clinton has admitted her mistake and said she would never do it again.
2. No one at the State Department has ever been punished for far more severe violations. See, e.g., I Triggered a State Department Leak More Serious Than Hillary Clinton’s. You might be surprised at how light the punishment was. By Stephen R. Dujack
3. Hillary didn’t lie about this. Not to the FBI. Not to the public. She has not given the exhaustive answer I just gave. But if she did, how many Americans would actually listen to it and understand it?
4. There is no evidence anything classified ever got to our enemies. And even if it did (and we don’t know about it), the material does not appear to be particularly sensitive. Importantly, none of the material was sensitive enough to be properly marked classified in the header the way real classified material is supposed to be.
5. This stuff is really complicated which is why 90%+ of you will not read this far. (Let me know if you did!) Few have the time or inclination to really boil down and discover the truth. That’s why I created this FAQ. I believe the details matter. And if you want to know the truth, I’ve done my best to answer every conceivable question I could think of right here.

Want to check my facts? Read here:

My Story on Front Page of Washington Post Metro Section Today

June 29, 2015

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December 12, 2013

This op-ed has been posted at
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The Day America Defaulted

October 19, 2013

Friday, October 18, 2013 – A day that will live in infamy.

For the first time in history, the United States of America is prepared to default on the National Debt.

We had paid back our Revolutionary War Debt to the penny. Despite the incredible cost and brutality of brother-on-brother violence during the Civil War, President Lincoln considered national default unthinkable. And even though our debt at the end of World War II peaked at more than 100% of our Gross Domestic Product (the sum total of all economic activity in the USA), Presidents Franklin Roosevelt and Harry Truman never missed a single payment deadline.

Now this. Friday morning. The day after.

President Obama grimly announces that due to the apocalyptic wishes of the Tea-Party wing of the Republican Party (more than half of which in a poll just three days earlier supported national default), the United States of America, the richest country on earth, is legally unable to pay its debts as they come due. The Attorney General, after carefully examining the law and finding no legal grounds to prioritize bondholders over any other US debt-holders authorized by law, instructs the Treasury Secretary to pay debts on a first-incurred basis as money is available from daily tax receipts. And for the first time in American history, just as social security checks are stopped, bondholders do not get paid the money they are owed on short-term Treasury Bills.

The Dow falls 700 points in one hour, forcing the New York Stock Exchange to halt trading. Interest rates skyrocket, as bondholders quickly sell every Treasury Bill they can at 90 cents, then 80 cents, then 70 cents on the dollar. China cashes in $1 trillion in T-Bills, causing interest rates to hit 10% then 20%. Ted Cruz gleefully declares,”The Apocalypse is here. This is what happens when Republicans stick together. President Obama must resign now. If he does not, we will continue the default until he does!”

The President of the United States is stunned that he called the Republicans’ bluff and they weren’t bluffing. He is stunned to find out Speaker John Boehner really did care more about his job than the well-being of the American People. He is stunned that even after this catastrophe, Boehner still won’t let the majority of the House of Representatives vote on the Senate’s repeated attempts to raise the debt ceiling. Blinking back tears and frankly still a little bit in denial, the President retires to the Oval Office all alone. He angrily knocks all the papers off his desk, leaving only his personal, dog-eared copy of the Constitution, the one he kept in his pocket when he used to teach Constitutional Law. He almost absent-mindedly flips through it.

And then he remembers something.

Quickly, he turns to the Fourteenth Amendment of the Constitution and re-reads Section 4:

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.

Sure, that Amendment was passed after the Civil War to pay Union debts. But the text does not solely refer to that situation. And wasn’t there a Depression-era case that said Congress had no authority to default on the national debt? The President jumps up quickly to grab an old law book on an Oval Office shelf, nearly tripping over a startled Bo curled at his feet. Yes. There it is! Perry v. United States (1935), where the United States Supreme Court rejected the Government’s contention that: “Congress can disregard the obligations of the government at its discretion”:

“We do not so read the Constitution. [When Congress] has borrowed money under the authority which the Constitution confers[…, Congress is] without power to reduce expenditures by abrogating contractual obligations of the United States…. Congress has not been vested with authority to alter or destroy those obligations.

“The Fourteenth Amendment, in its fourth section, explicitly declares: ‘The validity of the public debt of the United States, authorized by law, … shall not be questioned.’ While this provision was undoubtedly inspired by the desire to put beyond question the obligations of the government issued during the Civil War, its language indicates a broader connotation. We regard it as confirmatory of a fundamental principle which applies as well to the government bonds in question, and to others duly authorized by the Congress, ….. Nor can we perceive any reason for not considering the expression ‘the validity of the public debt’ as embracing whatever concerns the integrity of the public obligations.”

The President slams the law book shut and sprints to the Rose Garden, nearly tripping over Bo again, who yelps excitedly. He declares a news conference will occur in 60 seconds, barely giving resident cameramen enough time to turn around to film him as every TV station breaks in to its regularly-scheduled programming:

“I, Barack Obama, by the power vested in me by my oath to uphold the Constitution of the United States, do hereby declare that the validity of the public debt of the United States, authorized by law, shall not be questioned. The debt ceiling is unconstitutional. I instruct the Treasury to immediately pay from borrowed funds all public debt legally owed as it comes due.”

The Dow shoots upward. Interest rates decline sharply. The Premier of China buys back his American bonds. The run on banks ends. Senator Cruz shakes his finger angrily to the cameras, “You have not heard the end of me, you dictator!”

Epilogue from a History Book, c. 2050:

The United States of America would never default again. On October 18, 2013, the day after the great Tea Party Default of 2013, the United States officially made clear that it will always pay its debts, as then-President Obama became the first American President to legally invoke Section 4 of the Fourteenth Amendment. In June 2014, the Supreme Court in Cruz v. Obama ratified the President’s decision by an 8-1 vote (Scalia, J., dissenting), holding that Section 4 of the Fourteenth Amendment and the Court’s legal precedent of United States v. Perry rendered the debt ceiling either unconstitutional (five-justice majority) or a non-justiceable political question (concurrence of three justices).

There is an unconfirmed report that soon after the Supreme Court ruling, Chief Justice Roberts told one of his law clerks: “You think I’m going to be blamed for the nation’s first default and a worldwide economic crisis? Hell, no!”

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