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: 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 20, 2016: A Clinton spokesperson suggests an Obama appointed inspector general is coordinating against Clinton.

In the wake of a new revelation that some of Clinton’s private emails discussed top secret “special access programs,” Clinton spokesperson Brian Fallon suggests that Intelligence Community Inspector General Charles McCullough and Congressional Republicans have coordinated against Clinton. This claim comes after the contents of a letter McCullough sent to Congress were leaked to the media.

Fallon says, “I think that Republicans are continuing to try to trumpet up and resurface these allegations for the purposes of hurting her campaign.” After a reporter points out that McCullough isn’t a Republican, Fallon replies, “Actually, I think this was a very coordinated leak yesterday. Because two months ago, there was a political report that directly challenged the finding of this inspector general, and I don’t think he liked that very much. So I think that he put two Republican senators up to sending him a letter so that he would have an excuse to resurface the same allegations he made back in the summer that have been discredited.” (Politico, 1/20/2016

Fallon backtracks two days later, admitting he doesn’t know whether McCullough leaked the letter, but suggests he still bears responsibility for the fact it was leaked. McCullough was appointed by President Obama in 2011 and unanimously approved by the Senate. (CNN, 1/22/2016)

January 21, 2016: Clinton denies news reports that she received top secret information in her emails.

Clinton poses with supporters during a rally on January 21, 2016, in Vinton, Iowa. (Jae C. Hong / The Association Press)

Clinton poses with supporters during a rally on January 21, 2016, in Vinton, Iowa. (Jae C. Hong / The Association Press)

While greeting potential voters on the campaign trail in Iowa, Clinton is asked by a private citizen about her email scandal: “How do you plan to sidestep the reality that you are sending secure, SAP [special access program] emails on your private, unsecured server?”

Clinton replies, “You know what, it’s not true. It’s not true. I never sent or received—”

The citizen interrupts to ask, “You never received top secret information on your private server?”

Clinton responds, “No, no—I did not.” (Politico, 1/21/2016) 

Recent news reports said that Clinton had received emails containing “top secret” information, including information about above top secret/special access programs. (The New York Times, 1/19/2016)

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.”

April 9, 2016: Cheryl Mills is interviewed by the FBI; she isn’t concerned about classified information in emails she forwarded to Clinton.

Mills was Clinton’s chief of staff when Clinton was secretary of state and since then has been one of Clinton’s lawyers. The date and most details of the interview will remain secret until it’s mentioned in a September 2016 FBI report.

Mills refuses to answer some questions, claiming attorney-client privilege.

Cheryl Mills and Hillary Clinton at the House Benghazi Committee hearing on June 28, 2016. (Credit: Chip Somodaville / Getty Images)

Cheryl Mills and Clinton at the House Benghazi Committee hearing on October 23, 2015. (Credit: Chip Somodaville / Getty Images)

The FBI shows Mills seven emails that she forwarded to Clinton which contain information later determined to be classified. Acccording to the FBI, although “Mills did not specifically remember any of the emails, she stated that there was nothing in them that concerned her regarding their transmission on an unclassified email system. Mills also stated that she was not concerned about her decision to forward certain of these emails to Clinton.”

Apparently, some of the emails reviewed by Mills are classified at the “top secret/Special Access Program” (TP/SAP) level. Because the FBI will mention that while “reviewing emails related to the SAP referenced above, Mills explained that some of the emails were designed to inform State [Department] officials of media reports concerning the subject matter and that the information in the emails merely confirmed what the public already knew. (Federal Bureau of Investigation, 9/2/2016)

April 14, 2016: A Republican Senator criticizes President Obama’s comments about Clinton’s email scandal.

Senator John Cornyn (R) claims that Obama is “trying to influence the outcome” of the FBI’s Clinton investigation by his recent public comments. “Time and time again, the White House has projected its desired outcome of this investigation to the public, and worse, to those people conducting it.”

On April 10, 2016, Obama said, “I also know, because I handle a lot of classified information, is that […] there’s classified and then there’s classified. There’s stuff that is really top secret, top secret and then there is stuff that is being presented to the president or the secretary of state that you may not want on the transom, or going out over the wire, but is basically stuff that you can get in open source.”

Cornyn disputes this, saying, “We know that some of Secretary Clinton’s emails were classified even [to the] top-secret/special access program levels, some of the highest levels of classification.” (The Washington Examiner, 4/14/2016)

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: The FBI says Clinton both sent and received emails in seven above “top secret” email chains.

Although FBI Director James Comey announces he will not recommend an indictment of Clinton, comments in his public speech reveal information that could be very politically damaging for Clinton. It was previously known that Clinton’s emails contained 22 “top secret” emails in seven different email chains. However, Comey reveals, “Those chains involved Secretary Clinton both sending and receiving emails about those same matters.”

This contradicts previous news reports that Clinton had only been the recipient of “top secret” emails. Comey also says that seven email chains contain “top secret / special access program” (TP/SAP) information, which is above top secret, plus one more previously unknown email chain at the “top secret” level. (Federal Bureau of Investigation, 7/5/2016)

The New York Times notes, “Those emails have been widely reported to include information about the Central Intelligence Agency’s program to use drones to track and kill terrorism suspects. … Only a small number of officials are allowed access to those programs, which are the nation’s most sensitive intelligence operations.”

Another 36 chains were “secret,” which means it includes information that “could be expected to cause serious damage to the national security.” Eight more chains had information classified at the “confidential” level.

The Times comments that Comey’s speech “was, arguably, the worst possible good news Mrs. Clinton’s presidential campaign could have hoped for: no criminal charges, but a pointed refutation of statements like one she flatly made last August,” when she said, “I did not send classified material.” (The New York Times, 7/5/2016) (Federal Bureau of Investigation, 7/5/2016)

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)

September 2, 2016: The FBI concludes Clinton contributed to discussions in 11 email chains, including four at the above top secret level.

A FBI report released on this day will mention: “The FBI investigation determined Clinton contributed to discussions in four email chains classified as ‘confidential’, three email chains classified as ‘secret’/NOFORN, and four email chains classified as ‘top secret’/ SAP.” (“SAP” stands for “Special Access Programs.”)

However, FBI classification is wildly different from State Department classification when it comes to “confidential” emails, with the FBI deeming 36 email chains of around 100 emails or less classified at that level, compared to the State Department deeming 2,028 individual emails classified at that level.

Furthermore, the FBI puts emails where Clinton asked aides to print out emails as different from replies that added to discussions. The FBI identified 67 times where Clinton forwarded emails for printing at either the “confidential” or “secret” levels. (Federal Bureau of Investigation, 9/2/2016)

A snippet from the graphic created by the Washington Post. (Credit: Washington Post)

A snippet from a graphic created by the Washington Post, indicating the number of emails written by Clinton that were deemed classified. (Credit: Washington Post)

By contrast, a March 2016 Washington Post analysis concluded that 104 of all the emails deemed classified were written by Clinton. Presumably, they used the State Department definition of which ones were classified (since it was the only one publicly available at the time), and they were measuring individual emails instead of email chains. Furthermore,  the Post noted that at least some of Clinton’s comments were deemed classified in three-fourths of these 104 emails, so presumably these were not emails where she just asked fo print-outs. (The Washington Post, 3/5/2016

September 14, 2016: The US intelligence community has declined to conduct a required damage assessment caused by the classified information on Clinton’s private email server.

Joel Melstad, spokesperson for the of the Office of the Director of National Intelligence (ODNI), says, “ODNI is not leading an [intelligence community]-wide damage assessment and is not aware of any individual IC element conducting such formal assessments.”

Most of the above “top secret” emails sent or received on Clinton’s server related to the US drone program in Pakistan. According to the Washington Free Beacon, Director of National Intelligence James Clapper “agreed with security officials who argued against the need to carry out the damage assessment. Intelligence officials argued in internal discussions that since many details of the drone missile program targeting terrorists were disclosed in earlier leaks unrelated to Clinton’s use of a personal email server, gauging the damage done by her conduct would be difficult, and possibly unnecessary.”

However, “Other officials said Clapper’s decision appeared based on political considerations and was an effort to avoid embroiling American intelligence agencies in charges they were attempting to influence the outcome of Clinton’s bid for the White House.”

Representative Mike Pompeo (Credit: Politico)

Representative Mike Pompeo (Credit: Politico)

A June 2014 counterintelligence directive, ICD-732, states that “damage assessments shall be conducted when there is an actual or suspected unauthorized disclosure or compromise of classified national intelligence that may cause damage to US national security.”

Representative Mike Pompeo (R) says, “FBI Director [James] Comey has made clear that there was highly classified and sensitive information on Secretary Clinton’s personal server. It is imperative that [a damage assessment] be conducted to determine what harm to American national security may have occurred and, just as importantly, to prevent the massive mishandling of sensitive materials from ever happening again.”

Angelo Codevilla (Credit: public domain)

Angelo Codevilla (Credit: public domain)

Angelo Codevilla, a former US intelligence officer, says, “Common sense, the intelligence community’s standard practice, as well as a 2014 directive, require assessing the damage done by any such compromise.” She also asserts that Comey’s “vague and evasive” comments regarding Clinton’s handling of classified information confirm that a significant number of secrets were compromised.

Michelle VanCleave (Credit: public domain)

Michelle Van Cleave (Credit: public domain)

Michelle Van Cleave, a former national counterintelligence executive, similarly asserts, “Whenever there is a significant compromise of national security information, as the FBI’s report confirms happened here, it is essential to conduct an assessment of the damage in order to protect plans, programs, or lives that may be at risk.” There have been reports that Clinton’s emails revealed the names of some undercover CIA officers as well.

Kenneth deGraffenreid (Credit: The Institute of World Politics)

Kenneth deGraffenreid (Credit: The Institute of World Politics)

Kenneth deGraffenreid, a former deputy national counterintelligence executive, says, “Intelligence agencies hate conducting damage assessments that could show people that somebody did something wrong, or improper, or did it poorly. They never want that known. It’s a bureaucracy that does one thing: protects itself.”

He says Congress should force the intelligence community to conduct the damage assessment, since it will find no political advantage in doing it voluntarily.

However, the Free Beacon reports, “Congressional sources said the House and Senate intelligence oversight committee are reluctant to require the damage assessment since it would codify in writing the false claim that no damage was caused to the drone program by the compromise of secrets by Clinton and her aides.” (The Washington Free Beacon, 9/14/2016)