Law & the Courts

How the State Department Is Stiffing the Intelligence Community Out of Hillary Clinton’s E-mails

Undersecretary of State Patrick Kennedy testifies on Capitol Hill. (Brendan Hoffman/Getty)

Hillary Clinton’s awkward intransigence in the face of an unrelenting e-mail scandal is playing out under the harsh media spotlight of a presidential campaign. Garnering less attention is the intransigence of a former Clinton colleague at Foggy Bottom, who appears to be leading an effort to shield her potentially classified e-mails from further scrutiny by the intelligence community.

He is Undersecretary of State Patrick Kennedy, and for weeks now he has denied the intelligence community inspector general (IG) access to Clinton’s e-mails, while substantially limiting the access granted to the State Department’s own IG. He’s also ignored official guidance from both IGs on how his department can improve its classification-review process and catch sensitive material before it’s publicly released.

Kennedy’s ongoing resistance is the latest skirmish in a three-month battle between the State Department and the two federal watchdogs over how many of Clinton’s e-mails contain classified information. Since June, the department has pushed back forcefully against the IGs’ repeated warnings that reams of classified material sat on Clinton’s private server. A preliminary probe by the IGs in June found that State Department attorneys had overruled findings by their subordinates that some of the e-mails contained national-security secrets. Without sustained pressure from both IGs — and two bombshell announcements the watchdogs made on July 23 and August 11 — the public would likely still be unaware that classified materials were found in e-mails on the server, that these materials were classified at the time of their sending, and that in at least two cases these materials were Top Secret.

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Even now, Kennedy and State Department management continue to drag their feet — quibbling over whether the information contained in the e-mails was classified retroactively and refusing to confirm the Top Secret designation of the two e-mails found by the intelligence community. A spokeswoman for intelligence community IG I. Charles McCullough tells National Review that McCullough “has had no further communications from Undersecretary Kennedy since he declined [on July 24] to implement two out of four recommendations and denied our office any further access to the 30,000 e-mails.” (The State Department did not respond to a request for comment.)

To some, the dispute is little more than a federal turf war, albeit one waged on a highly visible battleground. But congressional investigators continue to worry that unless intelligence reviewers are better integrated into the process, the public may never know the quantity and importance of the classified information exposed by Clinton’s use of a private server.

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The dispute began in early June after State Department inspector general Steve Linick was directed by Congress to investigate the State Department’s Freedom of Information Act (FOIA) review of approximately 30,000 government e-mails stored on Clinton’s private server. Linick invited McCullough to provide outside help from the intelligence community, and the two IGs launched a dual inquiry into the State Department’s efforts to determine how many of Clinton’s e-mails contained classified information.

Both IGs expressed alarm at State’s use of retired Foreign Service officers rather than intelligence officers to review Clinton’s communications; at the department’s storage of the e-mails on a system that wasn’t designed to safeguard “Top Secret” information; and, especially, at the apparent reversal of at least four findings of classified material by the department’s lawyers. They recommended that State include FOIA specialists from several intelligence agencies in the review process; that it have intelligence personnel review the system on which the e-mails are being stored while they’re reviewed to ensure that it is secure enough to house Top Secret materials; and that it allow the intelligence community to act as the “final arbiter” on classification questions.

RELATED: Did the State Department Consider Hillary Above the Law?

Kennedy rebuffed their requests. “The Department finds the issues raised by the ICIG are either already addressed in current processes or are inconsistent with interagency practices,” he wrote, according to a series of memos later published by Linick.

One ex–State Department official says Kennedy was right to stand his ground. “The State Department is not going to want another agency to start reviewing all its e-mails and go, ‘Oh, this should’ve been classified, and that should’ve been classified,’” he says. “That seems like a dangerous precedent to set.”

RELATED: The Comical Dishonesty of Clinton’s E-mail Press Conference

Others find the pushback unfortunate, particularly since McCullough’s inquiry was sanctioned by the State Department’s own inspector general. “If their own IG agrees with the IG of the intelligence community, then [State] needs to take it up with their own IG,” says a former general counsel to a federal inspector general.

‘If their own IG agrees with the IG of the intelligence community, then [State] needs to take it up with their own IG.’

Kennedy relented on one issue as Linick and McCullough unearthed more evidence. In a June 29 letter they said department staff had found “hundreds of potentially classified e-mails,” and that there was concern the sensitive information could be publicly released. “Under the circumstances, we continue to urge the Department to adopt the recommendations made by the IC IG in our June 19 memorandum,” they wrote.

Kennedy responded on July 14, indicating he was “making arrangements” with the intelligence community to allow their FOIA reviewers to join the State Department team tasked with combing through the e-mails. But he continued to resist the remaining recommendations, and the inspectors general sent a curt response letter two days later, informing Kennedy they considered the other two recommendations “unresolved.”

“There are clearly some raw nerves between these two programs,” says a senior security policy official. “The State Department, institutionally, feels that it does not fall under the oversight of intelligence community elements. For it to be perceived as being criticized, or being directed by, an intelligence community authority — that rubs them the wrong way.”

RELATED: Court Filing: State Department Let Hillary Clinton Use Personal Smartphone

The tussle between the two institutions went public soon after Kennedy’s final refusal. On July 23, McCullough released a statement explaining that reviewers from his office had found four e-mails containing classified information in a mere 40 e-mail sample. The news contradicted Clinton’s earlier contention that she had never sent or received classified information over her private server, putting her presidential campaign on the defensive in the press.

McCullough also asked the State Department to provide him and Linick with copies of all 30,000 e-mails in order to perform further sampling for classified material. But while the department agreed to provide Linick with limited access, McCullough wrote that State “rejected my office’s requests on jurisdictional grounds.”

RELATED: Hillary’s Dangerous Negligence Over Benghazi — Again

The next day, the two IGs challenged the State Department’s claim that Clinton’s e-mails had not been classified when they were first sent or received. “These e-mails contained classified information when they were generated and, according to [intelligence community] classification officials, the information remains classified today,” they said July 24. Linick also posted the complete correspondence between the IGs and Kennedy on his website.

#related#The State Department has remained largely unresponsive to the concerns. Nearly two weeks after Linick and McCullough’s statement, a department spokesperson said they still “frankly [didn’t] know” if the IGs were correct in their assertion that the material was classified when it was first sent. And although Senate Judiciary Committee chairman Chuck Grassley (R., Iowa) revealed on August 11 that McCullough had found two of the e-mails contained Top Secret information, State won’t confirm that finding.

While the stalemate between State and the IGs continues, Grassley is expressing ever-louder concerns about the integrity of the department’s investigation. Yesterday, he released a letter to Secretary of State John Kerry warning that the “process for vetting e-mails for Freedom of Information Act requests at the State Department may be compromised.” The letter demanded that the department provide a response to the intelligence community IG’s questions and concerns over the e-mail review, and explain “what steps are being taken to ensure any [classification] disputes are resolved fairly and objectively based on the merits rather than on political considerations or any loyalties to the former Secretary and her private counsel.”

If, as Grassley fears, the process truly is compromised, and if reviewers from the intelligence community aren’t given greater access to Clinton’s e-mails and oversight of their classification, it could make it more difficult to accurately determine how much sensitive material she shared on her private server, and how sensitive it was. Despite the IGs’ efforts, the full truth of the case may never be known.

— Brendan Bordelon is a political reporter for National Review.

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