2011: A “top secret” Clinton email contains intelligence from CIA sources and US spy satellites

The National Geospatial-Intelligence Agency logo. (Credit: public domain)

The National Geospatial-Intelligence Agency logo. (Credit: public domain)

Very little is known about Clinton’s 22 emails that are later deemed “top secret,” since all details about them have remained classified. However, it is known that one of them is sent sometime this year. A few details about just this one email are known because it will be included in a random selection of 40 emails that will get reviewed by State Department Inspector General Steve Linick in 2015.

After Linick decides the email should be top secret, the Central Intelligence Agency (CIA) and the National Geospatial-Intelligence Agency will perform a second review and confirm that the email should be top secret. That indicates the email contains information obtained from both CIA sources and US spy satellites. (The New York Times, 9/7/2015) (The New York Times, 2/29/2016)

After June 2011 to Late 2012: Clinton and other State Department officials sometimes discuss proposed drone strikes in Pakistan in unsecured emails.

A rally in Islamabad, Pakistan, to condemn US drone attacks in Pakistani tribal areas, on October 28, 2011. (Credit: The Associated Press)

A rally in Islamabad, Pakistan, to condemn US drone attacks in Pakistani tribal areas, on October 28, 2011. (Credit: The Associated Press)

According to a June 2016 Wall Street Journal article, there are a series of Clinton emails in these two years regarding the US drone program in Pakistan. Starting roughly around June 2011, the State Department is given the right to approve or disapprove of the CIA’s drone strikes in Pakistan as part of the US government’s attempt to mollify Pakistan’s concerns so they will continue their secret support of the program.

However, this creates a communication problem, because advanced warning of strikes varies from several days to as little as half an hour. According to the Journal, “Under strict US classification rules, US officials have been barred from discussing strikes publicly and even privately outside of secure communications systems.”

As a result, US intelligence officials want State officials to use a very secure system to discuss the strikes, called JWICS (Joint Worldwide Intelligence Community Systems). But few State officials have access to JWICS, even in Washington, DC, so they use another secure system commonly known as the “high side” (SIPR or, Secret Internet Protocol Router Network).

However, this can be slow as well as difficult to access outside of normal work hours. As a result, according to the Journal, on about a half-dozen different occasions, State officials use the “low side,” which means unsecure computers, such as emailing from a smart phone. This is often said to take place at night, or on the weekend or holiday, or when people are traveling, or when a proposed drone strike is imminent. It is not clear why secure phone lines are not used instead.

The emails are usually vaguely worded so they don’t mention the “CIA,” “drones,” or details about the militant targets, unnamed officials will later claim. These emails sometimes are informal discussions that take place in addition to more formal notifications done through secure communications. In some cases, these emails about specific drone strikes will later be deemed “top secret,” making up many of Clinton’s reported 22 top secret emails.

According to the Journal, unnamed US officials will later say that there “is no evidence Pakistani intelligence officials intercepted any of the low side State Department emails or used them to protect militants.” (The Wall Street Journal, 6/9/2016)

January 19, 2016: Some of Clinton’s emails are too highly classified for an inspector general to read.

In the wake of media reports that Intelligence Community Inspector General Charles McCullough discovered some of Clinton’s emails contained above top secret (or “top secret / special access program”) intelligence, an unnamed US intelligence official tells NBC News “that the special access program in question was so sensitive that McCullough and some of his aides had to receive clearance to be read in on it…” (NBC News, 1/19/2016)

January 20, 2016: Clinton inaccurately claims “top secret” emails were regarding a published news article.

On January 19, 2016, it was reported that some of Clinton’s emails contained “top secret” and even above “top secret” information. One day later, Clinton says “the best we can determine” is that the emails were a forward of a New York Times article on a classified drone program and that they probably were classified retroactively. “How a New York Times public article that goes around the world could be in any way viewed as classified, or the fact that it would be sent to other people off of the New York Times site, I think, is one of the difficulties that people have in understanding what this is about.” (NPR, 1/20/2016) 

For months afterwards, very little is known about these emails, so it is difficult to challenge her claim. But in June 2016, the Wall Street Journal will report that in 2011, the State Department was allowed to approve or disapprove planned drone strikes, and most of Clinton’s 22 “top secret” or above “top secret” emails related to those discussions. (The Wall Street Journal, 6/9/2016)

January 20, 2016: A former CIA official says Clinton’s top secret emails “absolutely, without question” could have gotten people killed.

Charles Faddis (Credit: Pro Publica)

Charles Faddis (Credit: Pro Publica)

In a Fox News interview, former CIA operations officer Charles Faddis explains how ‘top secret” and especially SAP or “special access program” intelligence is kept separate from all other intelligence: “There is zero ambiguity here. None. Hard copy, electronic, it is clearly marked. If it’s electronic, you’re probably accessing it in a completely separate channel. So not all one stream where everything is mixed together.”

He adds that “the reason this stuff is in this channel is because it’s going to do incredible damage to US national security if it gets out in the open.”

Asked if a leak of the top secret intelligence sent to Clinton’s private email would cost lives, he replies, “Absolutely, without question.”

And when asked what would have happened if he had sent such information to an unsecure email account, he replies, “My career’s over, I lose my clearance, I lose my job, and then I go to prison, probably for a very long time.” (Fox News, 1/20/2016)

January 29, 2016: 22 emails retroactively deemed “top secret” had been sent through Clinton’s private server.

This is revealed by the State Department. However, the department will not make public any part of the 22 emails, not even the years they were sent or who sent them, because they contain such highly classified information. It is believed the 22 emails occurred in seven different email chains. (The New York Times, 1/29/2016) The US government defines “top secret” as “information, the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security.” (The New York Observer, 2/1/2016) 

A Clinton spokesperson claims that none of those emails originated with Clinton. (The Washington Post, 3/27/2016)

February 1, 2016: Some of Clinton’s 22 “top secret” emails allegedly contain “operational intelligence” involving espionage sources and methods.

John Schindler, a former National Security Agency (NSA) counterintelligence officer, claims that, “Discussions with Intelligence Community officials have revealed that Ms. Clinton’s ‘unclassified’ emails included Holy Grail items of American espionage such as the true names of Central Intelligence Agency [CIA] intelligence officers serving overseas under cover. Worse, some of those exposed are serving under non-official cover. […] At a minimum, valuable covers have been blown, careers have been ruined, and lives have been put at serious risk.” Additionally, some names of foreigners who are on the CIA payroll are mentioned.

One unnamed senior Intelligence Community official says that because of the likelihood that foreign governments have accessed all of Clinton’s emails, “It’s a death sentence. If we’re lucky, only agents, not our officers, will get killed because of this.”

Schindler comments, “Her defense seems to be that neither she nor anybody on her staff were able to recognize that top secret information was actually top secret, which is hardly a ringing endorsement of Hillary’s qualifications to be our next commander-in-chief.” (The New York Observer, 2/1/2016)

Four days later, a NBC News article comments on the same topic with more modest claims. According to unnamed US officials, the references to undercover officers were indirect and Clinton made no comment about them.

The article adds, “Some of the references to covert intelligence officers, and other discussions of CIA drone strikes, were against classification rules and were ‘sloppy,’ one official said. But views are split on whether they were damaging to national security.” (NBC News, 2/4/2016)

February 1, 2016: A politician who saw Clinton’s top secret emails says it’s obvious they contained classified information.

Representative Mike Pompeo (Credit: public domain)

Representative Mike Pompeo (Credit: public domain)

Representative Mike Pompeo (R), who sits on the House Intelligence Committee and has seen the unreleased 22 “top secret” Clinton emails, says, “There is no way that someone, a senior government official who has been handling classified information for a good chunk of their adult life, could not have known that this information ought to be classified, whether it was marked or not. Anyone with the capacity to read and an understanding of American national security, an 8th grade reading level or above, would understand that the release of this information or the potential breach of a non-secure system presented risk to American national security.”

He adds, “Anytime our national security team determines that there’s a potential breach, that is information that might potentially have fallen into the hands of the Iranians, or the Russians, or the Chinese, or just hackers, that they begin to operate in a manner that assumes that information has in fact gotten out.” (The Washington Post, 2/2/2016)

February 3, 2016: Clinton’s top secret emails are said to reveal sources, methods, and assets.

Representative Chris Stewart (Credit: The Salt Lake Tribune)

Representative Chris Stewart (Credit: The Salt Lake Tribune)

Representative Chris Stewart (R), a member of the House Intelligence Committee who has viewed Clinton’s 22 “top secret” emails, says those emails “do reveal classified methods, they do reveal classified sources, and they do reveal human assets.” He adds, “I can’t imagine how anyone could be familiar with these emails, whether they’re sending them or receiving them, and not realize that these are highly classified.” (The Washington Post, 2/4/2016

Additionally, he claims that there are seven more Clinton emails with a classification of “top secret” or higher that the government has not publicly mentioned yet. (The Washington Examiner, 2/3/2016) 

The Washington Post reports, “Other sources who have viewed the emails do not describe [them] as strongly, though one official said Clinton’s aides might have put their security clearances at risk.” (The Washington Post, 2/3/2016) 

Senator Dianne Feinstein (D), who as a member of the Senate Intelligence Committee has also viewed the emails, claims that none of them originated from Clinton, were not marked as classified at the time, and do not deserve to be marked as such. (Dianne Feinstein, 1/29/2016)

In July 2016, it will be reported that there are eight chains of top secret emails instead of the previously reported seven, suggesting that Stewart was right that there are more than 22. It will also be reported by FBI Director James Comey that some of the top secret emails originated from Clinton, all of them deserved to be marked “top secret,” and all contained classified information when they were sent. (The New York Times, 7/5/2016)

February 4, 2016: Bloomberg News reveals some hints about the contents of Clinton’s 22 “top secret” emails.

Senator Richard Burr (Credit: public domain)

Senator Richard Burr (Credit: public domain)

Bloomberg News reports: “US officials who reviewed the emails tell us they contain the names of U.S. intelligence officers overseas, but not the identities of undercover spies; summaries of sensitive meetings with foreign officials; and information on classified programs like drone strikes and intelligence-collection efforts in North Korea.”

Senate Intelligence Chair Richard Burr, who has also read all 22 emails, also offers some hints. He says Clinton should have known to better protect the information they contain. “They are definitely sensitive. Anybody in the intelligence world would know that the content was sensitive.” (Bloomberg News, 2/4/2016)

February 4, 2016: Clinton still holds a security clearance despite her mishandling of “top secret” information.

Bloomberg News reports that there is a debate in high-level political circles over whether Clinton should be allowed to keep her security clearance or not during the FBI’s Clinton investigation. Predictably, Democrats say she should while Republicans say she shouldn’t. It was reported in late January 2016 that 22 emails on her unapproved private server contained “top secret” and even above “top secret” information. (Bloomberg News, 2/4/2016) 

In October 2015, the State Department reportedly confirmed to Senator Chuck Grassley (R) that Clinton still holds a security clearance for TS/SCI [Top Secret/Sensitive Compartmented Information] the highest-level security clearance, and apparently nothing has changed since then. It is standard practice for high-ranking officials to retain their clearances after leaving office. (The Free Beacon, 10/7/2015)

February 5, 2016: The New York Times reveals a few more details about what Clinton’s 22 emails deemed “top secret” contain.

A Reaper drone firing its missile. (Credit: public domain)

A Reaper drone firing its missile. (Credit: public domain)

The Times reports, “It remains unknown what exactly the 22 emails contain, given their classification as ‘top secret,’ but [some US] officials described them generally, on the condition of anonymity. The officials included people familiar with or involved in the handling of the emails in government agencies and in Congress.”

  • Officials from US intelligence agencies have battled with State Department officials over what should be considered classified in Clinton’s emails, with the intelligence agencies arguing for more classification and the State Department arguing for less. But in the case of Clinton’s 22 top secret emails, even the State Department agreed that all 22 should be deemed top secret or even above top secret.
  • The emails comprise seven distinct email chains, and most of those chains involve discussions of the CIA drone program. The Obama administration has generally considered the program highly classified, even though details of it have been widely reported. However, some Clinton’s emails contain unredacted mentions of the drone program, so it is the discussion of certain details of the drone program that merit a top secret classification. For instance, some of the top secret emails include an email discussion relating to an unnamed New York Times article that “contained sensitive information about the intelligence surrounding the CIA’s drone activities, particularly in Pakistan.”
  • At least one of the email chains was started by Richard Holbrooke, “who as the administration’s special envoy for Afghanistan and Pakistan would have been intimately involved in dealing with the ramifications of drone strikes.” He died in December 2010.
  • “Some of the emails” include information deemed “top secret/SAP,” which means “special access programs.” The Times calls these programs “among the government’s most closely guarded secrets.”
  • “At least one of the emails contain[s] oblique references to CIA operatives.” One email has been given a designation of “HCS-O,” which indicates the information came from human intelligence sources. However, officials say that “none of the emails mention specific names of CIA officers or the spy agency’s sources.” (The New York Times, 2/5/2016)

February 10, 2016: As many as 30 different people were included in the 22 known “top secret” messages sent to Clinton.

Clinton (left) and Jake Sullivan (right) (Credit: The Associated Press)

Clinton (left) and Jake Sullivan (right) (Credit: The Associated Press)

An unnamed US official claims that top Clinton aides including Cheryl Mills, Huma Abedin, Philippe Reines, Jake Sullivan, and Patrick Kennedy were CCed on at least some of those emails. (The Hill, 2/10/2016) 

Jake Sullivan, Clinton’s top national security and foreign policy staffer, sent 215 classified emails to Clinton, more than anyone else. (The Washington Post, 3/5/2016He is said to be the author of at least one of the emails sent to Clinton that was later deemed “top secret,” and he may be responsible for others.

Politico reports, “Sullivan both initiated email conversations and also forwarded along messages with sensitive information, and he sometimes added additional content on the email chains in question, according to [our] sources.” As a result, Sullivan could face extra scrutiny from FBI investigators.

Another source says about three of Clinton’s top aides sent her highly classified material. (Politico, 2/10/2016)

February 27, 2016: Jake Sullivan is interviewed by the FBI; he claims he never felt any unease about the many above top secret emails he sent to Clinton.

Clinton and Sullivan have a discussion during the Benghazi Committee hearing on October 22, 2015. (Credit: Saul Loeb / Agence France Presse/ Getty Images)

Clinton and Sullivan have a discussion during the House Benghazi Committee hearing on October 22, 2015. (Credit: Saul Loeb / Agence France Presse/ Getty Images)

When Clinton was secretary of state, Sullivan first served as her deputy chief of staff for policy and then as the director of policy planning. The interview will remain secret until it’s mentioned in a September 2016 FBI report.

The FBI determined that seven email chains containing 22 emails were sent by Sullivan to Clinton were later deemed classified at the “top secret/Special Access Program” (TP/SAP) level, which is above “top secret.”

As a result, much of the interview regards these emails. The FBI asks Sullivan to review about 14 emails he sent or received “on unclassified systems” that were later determined to contain classified information up to the TS/SAP level.

Sullivan gives some reasons why the emails may have been sent on Clinton’s unclassified server. According to the FBI, “With respect to the SAP, Sullivan stated that it was discussed on unclassified systems due to the operational tempo at that time, and State [Department] employees attempted to talk around classified information. Sullivan also indicated that, for some of the emails, information about the incidents described therein may have already appeared in news reports. … Sullivan did not recall any instances in which he felt uneasy about information conveyed on unclassified systems, nor any instances in which others expressed concerns about the handling of classified information at State.” (Federal Bureau of Investigation, 9/2/2016)

Sullivan will also give his explanation of an email in which he wanted to send her a secure fax, but the fax machine wasn’t working and she told him to “send nonsecure.”

March 2, 2016: Republicans want to leave the investigation of Clinton’s emails to the FBI.

Representative Jason Chaffetz (Credit: Cliff Owen / The Associated Press))

Representative Jason Chaffetz (Credit: Cliff Owen / The Associated Press))

After public revelations that at least 22 of Clinton’s emails were marked “top secret,” Representative Jason Chaffetz (R), chairman of the House Oversight and Government Reform Committee, says in an interview that he’s considering opening an investigation on whether Clinton compromised national security.

However, later in the day, House Speaker Paul Ryan (R) and Majority Leader Kevin McCarthy (R) have a private meeting with Chaffetz. They tell him that Republican leaders have made a “collective decision” that anything related to the Clinton email scandal is “best left to the FBI.” The only exception is the on-going House Benghazi Committee investigation. (The Washington Post, 3/4/2016)

June 10, 2016: A Congressperson claims Clinton’s “top secret” emails reveal classified means, methods, and human assets.

Representative Chris Stewart (Credit: public domain)

Representative Chris Stewart (Credit: public domain)

Republican Representative Chris Stewart, as a member of the House Intelligence Committee, has access to unredacted versions of Clinton’s emails, including her 22 “top secret” emails. He says of Clinton, “She did reveal classified means. She did reveal classified methods. She did reveal classified human assets.”

Stewart, a former Air Force pilot, adds, “If I had behaved that way in the military, I would be very concerned about my legal future.” (The Guardian, 6/10/2016)

July 5, 2016: FBI Director Comey announces he will not recommend Clinton’s indictment on any charge, but he calls her “extremely careless” in handling highly classified information.

FBI Director James Comey announces his recommendation for Clinton and her aides on July 5, 2016. (Credit: Cliff Owen / The Associated Press)

FBI Director James Comey announces his recommendation in a press conference on July 5, 2016. (Credit: Cliff Owen / The Associated Press)

FBI Director James Comey gives a public speech in front of a group of reporters. The timing is surprising, since this brings an end to the FBI’s investigation of Clinton’s email practices, and just a Sunday and the Fourth of July holiday separate this from the FBI’s interview of Clinton on July 2, 2016. Comey spends most of his speech criticizing Clinton, but ends it by saying he will not recommend that the Justice Department pursue any indictment of Clinton or her aides.

Comey’s fifteen-minute speech includes the following information, in order, with key phrases bolded to assist in understanding.

Comey begins by describing the FBI investigation:

  • The investigation started with a referral from Intelligence Community Inspector General Charles McCullough, and “focused on whether classified information was transmitted” on Clinton’s personal email server during her time as secretary of state. It specifically “looked at whether there is evidence classified information was improperly stored or transmitted on that personal system, in violation of a federal statute making it a felony to mishandle classified information either intentionally or in a grossly negligent way, or a second statute making it a misdemeanor to knowingly remove classified information from appropriate systems or storage facilities.” The FBI “also investigated to determine whether there is evidence of computer intrusion in connection with the personal email server by any foreign power, or other hostile actors.”
  • The FBI found that Clinton “used several different servers and administrators of those servers during her four years at the State Department, and used numerous mobile devices to view and send email on that personal domain. As new servers and equipment were employed, older servers were taken out of service, stored, and decommissioned in various ways…”
  • The FBI analyzed the over 30,000 work emails that Clinton did turn over to the State Department in December 2014, working with other US government departments to determine which emails contained truly classified information at the time they were sent, and which ones were justifiably classified later.
  • James Comey (Credit: Fox News)

    James Comey (Credit: Fox News)

    From the group of 30,068 emails Clinton returned to the State Department, “110 emails in 52 email chains have been determined by the owning agency to contain classified information at the time they were sent or received. Eight of those chains contained information that was ‘top secret’ at the time they were sent; 36 chains contained ‘secret’ information at the time; and eight contained ‘confidential’ information, which is the lowest level of classification. Separate from those, about 2,000 additional emails were ‘up-classified’ to make them ‘confidential’; the information in those had not been classified at the time the emails were sent.”

  • It had previously been reported that the FBI had recovered most or all of the 31,830 emails that Clinton had deleted, allegedly because they contained personal information only. However, Comey reveals that was not the case, and thousands of emails were not recovered. He gives an example of how when one of Clinton’s servers was decommissioned in 2013, the email was removed and broken up into millions of fragments.
  • The FBI “discovered several thousand work-related emails” that were not included in the 30,068 emails Clinton returned to the State Department, even though Clinton claimed under oath that she had returned all her work-related emails. The FBI found these after they “had been deleted over the years and we found traces of them on devices that supported or were connected to the private email domain.” Others were found in the archived government email accounts of other government employees whom Clinton frequently communicated with. Still others were found “from the laborious review of the millions of email fragments” of the server decommissioned in 2013.
  • Out of these additional work emails, three were classified at the time they were sent or received – none at the ‘top secret’ level, one at the ‘secret’ level, and two at the ‘confidential’ level. None were found to have been deemed classified later.
  • Furthermore, Comey claims “we found no evidence that any of the additional work-related emails were intentionally deleted in an effort to conceal them. Our assessment is that, like many email users, Secretary Clinton periodically deleted emails or emails were purged from the system when devices were changed. Because she was not using a government account—or even a commercial account like Gmail—there was no archiving at all of her emails, so it is not surprising that we discovered emails that were not on Secretary Clinton’s system in 2014, when she produced the 30,000 emails to the State Department.”
  • 160705DeletingAttorneys

    The three Clinton attorneys who deleted emails are David Kendall (left), Cheryl Mills (center), and Heather Samuelson (right). (Credit: public domain)

    However, he also admits that “It could also be that some of the additional work-related emails we recovered were among those deleted as ‘personal’ by Secretary Clinton’s lawyers when they reviewed and sorted her emails for production in 2014.” He claims that the three lawyers who sorted the emails for Clinton in late 2014 (David Kendall, Cheryl Mills, and Heather Samuelson) “did not individually read the content of all of her emails…” Instead, they used keyword searches to determine which emails were work related, and it is “highly likely their search terms missed some work-related emails” that were later found by the FBI elsewhere.

  • Comey states it is “likely” that some emails may have disappeared forever. because Clinton’s three lawyers “deleted all emails they did not return to State, and the lawyers cleaned their devices in such a way as to preclude complete forensic recovery.” But he says that after interviews and technical examination, “we believe our investigation has been sufficient to give us reasonable confidence there was no intentional misconduct in connection with that sorting effort.”

Comey then begins stating his findings:

  • “Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.”
  • As an example, he points out that “seven email chains concern matters that were classified at the ‘Top Secret/Special Access Program’ [TP/SAP] level when they were sent and received. These chains involved Secretary Clinton both sending emails about those matters and receiving emails from others about the same matters. There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation.”
  • He adds that it was a similar situation with emails classified at the “secret” level when they were sent, although he doesn’t specify how many.
  • He comments, “None of these emails should have been on any kind of unclassified system, but their presence is especially concerning because all of these emails were housed on unclassified personal servers not even supported by full-time security staff, like those found at departments and agencies of the US government—or even with a commercial service like Gmail.”
  • He notes that “only a very small number of the emails containing classified information bore markings indicating the presence of classified information. But even if information is not marked ‘classified’ in an email, participants who know or should know that the subject matter is classified are still obligated to protect it.”
  • He then criticizes the State Department as a whole. The FBI found evidence that “the security culture” of the State Department “was generally lacking in the kind of care for classified information found elsewhere in the government.” This was especially true regarding the use of unclassified email systems.
  • Then he addresses whether “hostile actors” were able to gain access to Clinton’s emails. Although no direct evidence of any successful hacking was found, he points out that “given the nature of the system and of the actors potentially involved, we assess that we would be unlikely to see such direct evidence. We do assess that hostile actors gained access to the private commercial email accounts of people with whom Secretary Clinton was in regular contact from her personal account. We also assess that Secretary Clinton’s use of a personal email domain was both known by a large number of people and readily apparent. She also used her personal email extensively while outside the United States, including sending and receiving work-related emails in the territory of sophisticated adversaries. Given that combination of factors, we assess it is possible that hostile actors gained access to Secretary Clinton’s personal email account.”

After laying out the evidence of what the FBI found, Comey moves to the FBI’s recommendation to the Justice Department. He admits that it is highly unusual to publicly reveal the FBI’s recommendation, but “in this case, given the importance of the matter, I think unusual transparency is in order.”

James Comey (Credit: NPR)

James Comey (Credit: NPR)

Then he comes to these conclusions:

  • “Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past.”
  • To justify this decision, he claims he examined other cases involving the mishandling or removal of classified information, and “we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.”
  • He then says, “To be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences. To the contrary, those individuals are often subject to security or administrative sanctions. But that is not what we are deciding now. As a result, although the Department of Justice makes final decisions on matters like this, we are expressing to Justice our view that no charges are appropriate in this case.”
  • He concludes by saying the FBI’s investigation was done competently, honestly, and independently, and without any kind of outside influence.

He doesn’t address the possibility of recommending the indictment of any of Clinton’s aides or other figures like Sid Blumenthal or Justin Cooper. He also doesn’t make any mention of the Clinton Foundation, though there have been media reports the FBI has been investigating it as well. After finishing his speech, he leaves without taking any questions from the media. (Federal Bureau of Investigation, 7/5/2016)

July 5, 2016: It appears Clinton’s emails include 29 at the “top secret” level, instead of the widely reported 22.

Representative Chris Stewart (Credit: public domain)

Representative Chris Stewart (Credit: public domain)

In his public speech ending the FBI’s Clinton investigation, FBI Director James Comey mentions Clinton’s emails contained eight chains containing “top secret’ information, instead of the previously reported seven chains of 22 emails. The New York Times reports that it is “not immediately clear what subject the eighth chain Mr. Comey cited involved, but his statement means that more than 22 emails already disclosed included ‘top secret’ information. Officials at the FBI did not respond to inquiries seeking further explanation.” (The New York Times, 7/5/2016)

On February 3, 2016, Representative Chris Stewart (R), a member of the House Intelligence Committee who viewed Clinton’s 22 “top secret” emails, claimed that there are seven more Clinton emails with a classification of “top secret” that the government has not revealed. (The Washington Examiner, 3/3/2016) Comey’s remarks suggest Stewart was correct.

July 22, 2016: More details of Clinton’s twenty-two “top secret” emails are revealed; nine were written by Clinton and most of the rest were written by her aide Jake Sullivan.

As part of a Freedom of Information Act (FOIA) lawsuit by Vice News reporter Jason Leopold, the State Department reveals more information about seven chains of 22 “top secret” emails involving Clinton. (Curiously, FBI Director James Comey mentioned on July 5, 2016 that there actually were eight “top secret” email chains, but the eighth chain is not mentioned by the department.)

The contents of the emails remain totally classified, but previous media reports indicate that most of them discussed approval for covert CIA drone strikes in Pakistan, and some of them may have identified CIA operatives working undercover.

160722VaughnIndex

A sample of the Vaughn Index form submitted by the State Department, in response to the Vice News Freedom of Information Act (FOIA) lawsuit. (Credit: public domain)

For the first time, the department reveals which years the emails were sent and who sent and received them. All the emails were from 2011 or 2012 – the State Department began to have a say in approving CIA drone strikes in 2011. Nine of the emails were written by Clinton, and the other thirteen were written by her aide Jake Sullivan. Two were also cc’d by Sullivan to her chief of staff Cheryl Mills and/or Deputy Secretary of State William Burns.

The State Department disclosure comes in the form of a “Vaughn Index,” which is a document used by government departments in FOIA lawsuits to justify the withholding of information under various FOIA exemptions. Vaughn Indexes contain at least some information about the withheld text, to justify keeping it redacted, but this one does not. Steven Aftergood, the director of the Project on Government Secrecy at the Federation of American Scientists, says that according to government regulations, “State’s document does not fulfill the requirements for a Vaughn index.” (Vice News, 7/22/2016) (The Hill, 7/22/2016)

September 2, 2016: The FBI provides statistics on the number of Clinton’s classified emails, but those numbers diverge wildly from the State Department’s numbers.

The FBI Clinton email investigation’s final report, released on this day, details how many of Clinton’s emails were deemed classified, and when, and at what level. This data is according to FBI and Intelligence Community (IC) classification reviews, which is different from a State Department review mentioned below:

  • 81 email chains containing approximately 193 individual emails were classified at the “confidential,” “secret,” and “top secret” levels at the time the emails were drafted on unclassified systems and sent to or from Clinton’s personal server.
  • Of the 81 email chains classified at the time they were sent, 68 remain classified.
  • Twelve of these email chains, classified at the “confidential” or “secret” levels, were not included in the over 30,000 emails turned over by Clinton in December 2014. Apparently, no “top secret” emails were in this category.
  • Thirty-six of the 81 email chains were classified at the “confidential” level.
  • Thirty-seven of the chains were at the “secret” level.
  • Eight of the chains were at the “top secret” level.
  • Out of the eight “top secret” chains, seven chains contained information associated with a Special Access Program (SAP), and three email chains contained Sensitive Compartmented Information (SCI). One “top secret”/SCI email was later downgraded to a current classification of “secret.”
  • Thirty-six of the 81 classified email chains were determined to be Not-Releasable to Foreign Governments (NOFORN) and 2 were considered releasable only to Five Allied partners (FVEY) – the US, Britain, Canada, Australia, and New Zealand.
  • Sixteen of the email chains, classified at the time the emails were sent, were downgraded in current classification by Intelligence Community (IC) agencies.
  • By contrast, the State Department’s FOIA process identified 2,028 emails currently at the “confidential” level and 65 currently at the “secret” level, for a total of 2093 emails.

The FBI report further notes: “Of these emails, FBI investigation identified approximately 100 emails that overlapped with the 193 emails (80 email chains) determined through the FBI classification review to be classified at the time sent. All except one of the remaining 2,093 emails were determined by the State FOIA process to be ‘confidential’, with one email determined to be ‘secret’ at the time of the FOIA review. State did not provide a determination as to whether the 2,093 emails were classified at the time they were sent.”

It is unclear why the FBI and IC numbers are so different from the State Department numbers when it comes to “confidential” level emails. The FBI and IC identified 36 of the 81 email chains were classified at the “confidential” level, while the State Department identified 2,028 emails at the “confidential” level. And while one cannot compare email chains to emails, all 81 classified emails chains only contained 193 individual emails, so the 36 “confidential” chains must contain fewer emails than that.

Furthermore, the FBI found an additional 17,000 emails to the over 30,000 work-related emails Clinton gave to the State Department, and it appears these largely haven’t been analyzed. It hasn’t even been reported how many of them are work-related. (Federal Bureau of Investigation, 9/2/2016)

October 12, 2016: An unnamed high-ranking FBI official claims that the “vast majority” of agents working on the FBI’s Clinton email investigation believe Clinton should have been indicted.

The “high-ranking FBI official” speaks to Fox News on the condition of anonymity, but the person’s “identity and role in the case has been verified by FoxNews.com.” According to this source, “No trial level attorney agreed, no agent working the case agreed, with the decision not to prosecute” anyone in the investigation at all, but “it was a top-down decision” by FBI Director James Comey.

The source says that when it came to Clinton specifically, “It is safe to say the vast majority felt she should be prosecuted. We were floored while listening to the FBI briefing [on July 5, 2016] because Comey laid it all out, and then said ‘but we are doing nothing,’ which made no sense to us.” And while it might not have been a totally unanimous decision to recommend Clinton’s indictment, “It was unanimous that we all wanted her [Clinton’s] security clearance yanked.” However, even that never happened, despite it being standard procedure in similar cases.

The source adds that FBI agents were particularly upset that Comey unilaterally made the decision not to indict when the FBI’s role is merely to present an investigative report to the Justice Department. “Basically, James Comey hijacked the [Justice Department]’s role by saying ‘no reasonable prosecutor would bring this case.’ The FBI does not decide who to prosecute and when, that is the sole province of a prosecutor. … I know zero prosecutors in the [Justice Department]’s National Security Division who would not have taken the case to a grand jury. One was never even convened.” Without a grand jury, FBI agents were not allowed to issue subpoenas or search warrants and could only request evidence and interviews.

The source also complains that the FBI required its agents and analysts involved in the investigation to sign non-disclosure agreements. “This is unheard of, because of the stifling nature it has on the investigative process.”

Furthermore, immunity deals were made with five key figures in the investigation: Cheryl Mills, Bryan Pagliano, Paul Combetta, John Bentel, and Heather Samuelson. The source says none of them should have been granted immunity if no charges were being brought. “[Immunity] is issued because you know someone possesses evidence you need to charge the target, and you almost always know what it is they possess. That’s why you give immunity. … Mills and Samuelson receiving immunity with the agreement their laptops would be destroyed by the FBI afterwards is, in itself, illegal. We know those laptops contained classified information. That’s also illegal, and they got a pass.”

Additionally, “Mills was allowed to sit in on the interview of Clinton as her lawyer. That’s absurd. Someone who is supposedly cooperating against the target of an investigation [being] permitted to sit by the target as counsel violates any semblance of ethical responsibility.”

The source also comments, “Every agent and attorney I have spoken to is embarrassed and has lost total respect for James Comey and [Attorney General] Loretta Lynch. The bar for [the Justice Department] is whether the evidence supports a case for charges — it did here. It should have been taken to the grand jury.”

Finally, the source claims that many in the FBI and the Justice Department believe Comey and Lynch were motivated by ambition instead of justice. “Loretta Lynch simply wants to stay on as attorney general under Clinton, so there is no way she would indict. James Comey thought his position [heavily criticizing Clinton even as he decides against indicting her] gave himself cover to remain on as director regardless of who wins.”

Andrew Napolitano (Credit: Fox News)

Andrew Napolitano (Credit: Fox News)

Andrew Napolitano, a former judge and judicial analyst for Fox News, also claims to know of many law enforcement agents involved with the Clinton email investigation who have similar beliefs. He says, “It is well known that the FBI agents on the ground, the human beings who did the investigative work, had built an extremely strong case against Hillary Clinton and were furious when the case did not move forward. They believe the decision not to prosecute came from the White House.” (Fox News, 10/12/2016)

The next day, Malia Zimmerman, a co-writer of the article, is questioned on Fox News television. She claims that she has been speaking to other disgruntled FBI agents as well. “They’re saying that the morale is very low and that a lot of them are looking for other jobs. They’re very disappointed. They feel like the agency has been polluted… and they’re embarrassed. They feel like they’ve been betrayed.”

She adds that some of her sources might be willing to speak on the record if they retire or change jobs, which some of them are in the process of doing. But they are currently worried about retaliation. “There are a lot of disgruntled agents, analysts, and [Justice Department] attorneys as well.” These people feel Clinton could have been charged for various reasons, but her 22 “top secret” emails made the most compelling case. (Fox News, 10/13/2016)