Clear battle lines have already been drawn over FBI Director James Comey‘s announcement that no charges will be brought against Hillary Clinton in the “Emailgate” investigation, with one side convinced that Comey is a bought-and-paid-for Hillary puppet (a side that includes both Republicans and Bernie Sanders fans), and the other correctly wondering just where “Bitchy Press Conference” falls in the chain of due process.
These, however, are matters of opinion (one right and one wrong), whereas Comey’s presser has also resulted in a blizzard of factual error that has gleeful anti-Clinton media figures declaring her a liar and a danger to national security. Although Comey’s 15-minute presser begs complete dissection, I’d like to stick to just these two sexiest claims.
First, there was Comey’s revelation that some of the emails investigated were marked classified at the time they were sent or received, which is the basis for the claim that Hillary Clinton has been lying all along when she said she “did not send classified material and I did not receive any material that was marked or designated classified”:
It is important to say something about the marking of classified information. Only a very small number of the e-mails containing classified information bore markings indicating the presence of classified information. But even if information is not marked “classified” in an e-mail, participants who know or should know that the subject matter is classified are still obligated to protect it.
Some, Comey included, will argue that this distinction makes no difference, but it certainly does, especially when judging whether or not Hillary Clinton lied. In this case, it’s important to listen carefully to what Comey said, which is that a “very small number” (whatever that means) “bore markings indicating the presence of classified information.”
There are several problems with this, most fundamental among them being that Comey’s press conference should have lasted 30 seconds, and not included what amounted to 15 minutes of unanswered, unexamined testimony against Hillary Clinton. No one can cross-examine Comey and ask him what “a very small number” means, nor can we know which “markings” he’s referring to. For example, one of the emails that Hillary-haters declared a smoking gun was one which bore the word “confidential” in the subject line, but which referred to attorney-client privilege, not government classification. Was there a “very small number” of these?
Another email released more recently contained the designation “(c)” for “confidential,” which is what’s called a “portion marking.” They call it that because the notation appears just before the portion of the document that is classified, in this case at the very bottom of the first page. However, according to the “Marking Classified National Security Information” training manual, this email was not marked as classified, at least not properly:
Identify the overall classification of the document. This will be equal to the highest classification level of any one portion found in the document. In this example, the highest classification is “Secret,” found in paragraph 2.
• Conspicuously place the overall classification at the top and bottom of the page.
• If the document contains more than one page, place the overall marking at the top and
bottom of the outside of the front cover, on the title page, on the first page, and on the
outside of the back cover (if any).
• Mark other internal pages either with the overall classification or with a marking
indicating the highest classification level of information contained on that page.
You can argue whether the designation in this email even fits the definition of “marked classified,” but this certainly casts doubt on the claim that Hillary lied. If a “very small number” of emails were supposed to be marked with a giant stamp at the top of each page, but they weren’t, that’s at worst an honest mistake. I would argue that such emails would definitely not qualify as “marked classified,” and I suspect Comey would have to concede that, since he very studiously avoided saying that.
Then, there was Comey’s entirely speculative and self-contradictory assertion that Hillary Clinton probably got hacked, because she wasn’t using a system that was even as secure as a Gmail-type account, and even though he found no evidence of this, he expected to find no evidence of this, because hackers are so sophisticated, except he did find evidence of intrusion on other people’s Gmail-type accounts, which he just said were more secure than Hillary’s:
None of these e-mails should have been on any kind of unclassified system, but their presence is especially concerning because all of these e-mails were housed on unclassified personal servers not even supported by full-time security staff, like those found at Departments and Agencies of the U.S. Government—or even with a commercial service like Gmail.
…With respect to potential computer intrusion by hostile actors, we did not find direct evidence that Secretary Clinton’s personal e-mail domain, in its various configurations since 2009, was successfully hacked. But, 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 thathostile actors gained access to the private commercial e-mail 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 e-mail domain was both known by a large number of people and readily apparent. She also used her personal e-mail extensively while outside the United States, including sending and receiving work-related e-mails 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 e-mail account.
None of this would have even made it into a court of law, or even a halfway-decent newspaper, but because Comey got to stand there and testify unilaterally against Hillary Clinton for 15 minutes, no one gets to make Comey look like a fool for contradicting himself, and for engaging in the sort of rank speculation that courts of law are designed to weed out, and which competent editors relegate to spaces like Alex Jones‘ Infowars.
Finally, there’s the subject of that distinction between information that’s “classified” and information that’s “marked classified,” which isn’t the basis of the claim that Hillary lied, but is another great reason for James Comey to shut the hell up. In fact, he pretty much said so himself when he told reporters that the handling of classified information at the State Department was “not the focus of our investigation.”
The FBI, and other security agencies within the government, are not partners with the State Department, they’re antagonists. Anyone who has done even a little bit of national security reporting will tell you that these agencies are absolute in their belief in secrecy, and would classify the menu board on their favorite lunch truck if they could, but this tendency is especially onerous to diplomats, who require a much greater level of flexibility in what they can discuss than other government officials. When Comey slams State as having a “lax culture” around secrecy, he’s delivering his opinion as a rival, not the unbiased assessment of an objective observer.
If James Comey had wanted to present a case against Hillary Clinton, he should have indicted her. Instead, he failed to charge her because he had no case, yet was still permitted to present a case against her. It is the media’s duty to correct that injustice, to rebut Comey’s misleading speculation with facts. Let’s see how that goes.
Update: So, it turns out the "very small number" was two, and one of them was the exact example I gave, and the other was the same as that one. From NYT:
While he did not identify any, he was evidently referring to two emails that one of Mrs. Clinton’s close aides, Monica R. Hanley, sent to prepare her for telephone calls with foreign leaders, according to a State Department official familiar with the matter, who spoke on condition of anonymity to discuss classified information.
One email, dated Aug. 2, 2012, noted that Kofi Annan, the former secretary general of the United Nations, was stepping down as special envoy trying to mediate the war in Syria. A second one, sent in April 2012, discussed Mrs. Clinton’s call to the newly inaugurated president of Malawi.
Each was marked with a small notation, “(C),” indicating it contained information classified as “confidential.”
Furthermore, according to the State Department, even those two were marked in error.
I hate to say I told you so, but I really don't.
Sorry, it was three emails, says Comey. He thinks.