When State Department officials first discovered that Hillary Rodham Clinton’s personal email account contained classified information, they did not seize the thumb drive containing her digitally archived inbox but rather provided her attorney a special safe to secure the device, according to interviews and documents.
The move allowed Mrs. Clinton’s attorney to keep the device for several additional weeks while State officials reviewed paper copies of the emails for possible classified data. Officials were unconcerned that the thumb drive remained out of their possession because preservation orders from courts and Congress would ensure that her attorney would not destroy the evidence. The digital archive was turned over to the FBI for examination this month.
Throughout the review process, career State officials who normally handle the release of data under the Freedom of Information Act ran into disagreements with attorneys about which information in the emails was classified, The Washington Times has learned.
The disagreements are part of a complex, and at times tense, process in which career lawyers and career FOIA officials, along with a dozen intelligence review analysts from different agencies, are trying to identify and protect intelligence information contained in Mrs. Clinton’s personal email account. State and FOIA lawyers normally work together on such requests, but this case has heightened tensions given Mrs. Clinton’s status as the Democratic presidential front-runner.
The ongoing process has already flagged 60 of Mrs. Clinton’s personal emails as containing classified information at the “confidential” or “secret” level, although a debate is raging over additional emails that the intelligence community and career State officials believe contain more sensitive top-secret data, officials confirmed.
Irregularities reported to IG
Amid the tensions, some career State employees have now alerted the intelligence community to irregularities that they fear may hide from the public the true extent of classified information that passed through her personal account, people familiar with the matter told The Times.
Their concerns include that one or more State Department attorneys involved in the production of the former secretary of state’s emails to Congress and a federal court have ties to Mrs. Clinton’s private attorney’s firm, creating at least the perception internally of a conflict of interest, sources told The Times, speaking only on the condition of anonymity.
The complaints were received by Intelligence Community Inspector General I. Charles McCullough III’s office in recent weeks and have been referred to the State Department’s chief watchdog, the sources said.
The development opens up a potential new investigative front in a controversy that has already tarnished Mrs. Clinton’s presidential bid.
“At present, [the career officials] have not formally sought whistleblower status, but their disclosures are likely legally protected from retaliation since they involve matters affecting Congress, the courts and national security,” one of the sources directly familiar with the matter told The Times.
Since the revelation this spring that Mrs. Clinton had a private email server where she conducted some official business, the State Department has been busy reviewing some 30,000 emails in that account for possible release to both the House Select Committee on Benghazi and a federal court handling a FOIA lawsuit.
State officials told The Times that they are aware of tensions and disagreements during the extraordinary review process, and State Department Inspector General Stephen Linick, the department’s independent watchdog, is free to investigate any concerns raised by employees.
They noted that Secretary of State John F. Kerry this spring, well before internal disputes arose, asked Mr. Linick to review the department’s security standards that let Mrs. Clinton conduct official business on a private email account.
“Secretary Kerry affirmatively asked for the State Department Inspector General to review the Department’s records maintenance and FOIA processes and provide recommendations,” the department said in a statement to The Times. “As is customary, the IG’s review is entirely independent, and they are free to speak to any Department employees in the course of their work.”
Spokesmen for the State and Intelligence Community inspectors-general declined to comment.
Thumb drive not sought
State officials acknowledged that one extraordinary step taken by the department’s leadership occurred in May when reviewing officials identified the first pieces of classified information inside Mrs. Clinton’s personal email.
At the time, State officials had access to only paper copies of the emails but were aware that Mrs. Clinton’s personal attorney, David Kendall, had an electronic copy of her email inbox in a .pst format stored on a thumb drive. The .pst format is commonly used for email programs like Microsoft Outlook.
Rather than seize the thumb drive and turn it over to the intelligence community, State provided a special secure safe capable of protecting classified information up to the “secret” level, officials confirmed to The Times.
That arrangement allowed Mr. Kendall to hold on to the electronic archive for several more weeks until the ongoing review flagged at least two emails containing possible top-secret information, the most sensitive of the nation’s intelligence, officials acknowledged.
The most recent revelation about possible top-secret information finally prompted Mr. Kendall to turn over the thumb drive as well as the original email server’s hard drive to the FBI in recent days.
State officials said they were not concerned about leaving the device with Mr. Kendall in the safe they provided because they had paper copies of the emails, Mr. Kendall had a prior-issued security clearance and the emails were subject to court protective orders that they couldn’t be destroyed.
But career State and intelligence community officials found the arrangement with the safe to be highly unusual.
And it wasn’t their only concern.
Exemptions being changed
Memos released by the State inspector general show Patrick Kennedy, undersecretary of state for management, has refused the intelligence community’s request to keep Mrs. Clinton’s stash of emails in a network for “top secret” material. State officials counter that any top-secret memos will be properly handled on the right equipment and with the right procedures.
On the campaign trail over the weekend, Mrs. Clinton seemed to mock the intelligence community’s concerns over securing documents. She quipped that she now uses a popular social media outlet that makes messages disappear automatically.
Career officials, meanwhile, ran into disagreements with lawyers from the department legal counsel’s office concerning which passages inside Mrs. Clinton’s private emails should be declared classified in the FOIA lawsuit.
The career employees told the intelligence community that some of the email passages they flagged to be exempted from FOIA release as classified were altered during the legal review process to other exemptions, such as “deliberative privilege,” according to sources familiar with the concerns.
The whistleblowers told the intelligence community that they feared the changes from “classified” to other exemptions were deliberate and might hide from the public the true extent of classified secrets that flowed through Mrs. Clinton’s personal email account, sources said.
State officials acknowledged to The Times that the multiple layers of review have resulted in different determinations about classification and occasional disagreements.
State officials said the disagreements ran both ways between career lawyers and career FOIA officials.
FOIA officials are concerned about issues related to their tasks, intelligence community analysts are worried about protecting their respective agencies’ secrets, and the attorneys are worried about ensuring their representations to the courts are defensible, the officials said.
“The IC is looking at this as needing to protect classified information. And the lawyers are looking at this as they have to defend to a judge why something was redacted from an email and kept from public release, especially if the FOIA case goes to appeal. Those are different responsibilities that create natural tensions,” one official familiar with the process said.
State officials said it may take weeks or months to resolve all the disputes, but the goal is to reach consensus eventually between the intelligence community and State’s various layers of review.
From 6 to 60
Officials said the department ultimately isn’t trying to hide the extent to which classified information passed through Mrs. Clinton’s private email account. They noted that while the media have focused on just a half-dozen of Mrs. Clinton’s personal emails containing secret intelligence, State’s own internal review has already flagged 60 emails through July 30 containing classified data. They expect that number to rise before all 30,000 emails are reviewed.
Of those first 60, nearly all contained classified secrets at the lowest level of “confidential,” and one contained information at the intermediate level of “secret,” officials told The Times.
State officials are working with Mr. McCullough’s office to review two emails his team has flagged as containing “top-secret” information derived from possible Pentagon satellites, drones or intercepts, which is some of the nation’s most sensitive secrets.
“Wherever the facts end up, that is where the determination will end,” one official said. “The IGs have the independence to help us resolve these issues.”
The debate about the higher-level classified data is complicated by what is known as dual-source information.
Dual-source information involves situations in which the intelligence community reports information through classified channels at the same time open sources such as the news media disclose the same event.
For instance, the Pentagon may report to State officials a drone strike killed a terrorist leader with the specifics of the location, the type of drone used and the intelligence that led to the strike, while news outlets may report the drone strike and death based on an announcement of a foreign government or terrorist organization.
Officials are reviewing the circumstances around a handful of flagged emails to ensure no dual-source information was involved, the sources said.
Meanwhile, some of what is fueling career officials’ concerns is the apparent background of the lawyers involved in the email reviews for both Congress and the courts.
The officials told the intelligence community that they believe one or more of those lawyers previously worked at the Williams & Connolly firm where Mrs. Clinton’s attorney, Mr. Kendall, is a senior partner.
A check of public records identified at least one State Department attorney, Catherine “Kate” Duval, who previously worked at Williams & Connolly. A Politico profile identified Ms. Duval as having left Williams & Connolly to work for the Obama administration on the IRS targeting scandal before moving to State in the past year.
State officials confirmed to The Times that Ms. Duval has been working on Mrs. Clinton’s emails but primarily in the capacity of helping to produce those that are relevant to the House Special Committee on Benghazi. She is not part of the team of attorneys advising on legal matters involving the FOIA case.
“Kate Duval is an exceptional professional and has the department’s utmost confidence,” State spokesman Alec Gerlach said Sunday night.
The officials said privacy laws prevented them from identifying any other lawyers inside their department who might have worked for Williams & Connolly but that they were confident that none of the lawyers working on the email matter had any prior representation of Mrs. Clinton on personal matters before they joined State.
As for conflicts of interests, just working in the same law firm previously as Mrs. Clinton’s attorney isn’t a legal disqualifier, officials noted.
“The department has complete confidence that its attorneys — who are almost exclusively career department lawyers — perform to the highest professional and ethical standards, including in connection with the review and release of Secretary Clinton’s emails,” Mr. Gerlach said.