Politics & Policy

Hillary’s Latest E-mail Gambit: Tragedy, Comedy, or Low Farce?

(Andrew Burton/Getty)

Hillary Clinton’s continually evolving defense of her apparent mishandling of classified information is starting to sound a lot like a running gag from Get Smart, the Sixties spy sitcom. Trapped in life-or-death situations at the hands of his archenemies, Agent Maxwell Smart would always seek to bluff his way out of trouble. When Mr. Big wouldn’t budge, Agent Smart moved on to the next prevarication until he found something that might stick:

Maxwell Smart: I happen to know that at this very minute seven Coast Guard cutters are converging on this boat. Would you believe it? Seven.

Mr. Big: I find that pretty hard to believe.

Maxwell Smart: Would you believe six?

Mr. Big: I don’t think so.

Maxwell Smart: How about two cops in a rowboat?

Hillary Clinton is trying the same gag, without the benefit of Don Adams’s comic timing. In a March 2015 press conference at the United Nations — her first public comments after news broke of her exclusive use of a private e-mail server to conduct official business — the former secretary of state drew a line in the sand, insisting categorically that “there is no classified material” on her home-brewed server. That story quickly took on water. The Department of Justice began withholding classified material from public releases of Mrs. Clinton’s e-mails — to date, more than 1,500 e-mails have been withheld as classified, with more to come. And inspectors general for both the intelligence community and the State Department revealed that even a small sample of the Clinton e-mails they reviewed contained information classified as top secret. The State Department confirmed late last week that nearly two dozen of her e-mails were so sensitive that they would be withheld in their entirety from public disclosure.

With her first line of defense overrun, Mrs. Clinton subtly shifted her story. In an August 2015 press conference at the Iowa State Fair, Mrs. Clinton insisted, “I did not send nor did I receive material marked classified.”

RELATED: How the FBI Could Force DOJ to Prosecute Hillary Clinton 

Anyone with even passing knowledge of classification knows that information can be classified even if the documents containing that information are not marked. Mrs. Clinton, like any other person given access to classified information, signed a non-disclosure form putting her on notice that the classified information to which she was given access would include “marked or unmarked classified information, including oral communications.”

When confronted this weekend by ABC’s George Stephanopoulos with this signed non-disclosure agreement, Mrs. Clinton argued that she had complied with the agreement, insisting, contrary to its plain terms, that “when you receive information . . . there has to be some markings, some indication that someone down the chain thought that this was classified, and that was not the case.” It’s not the case, indeed.

#share#According to the intelligence community’s inspector general, more than a handful of Mrs. Clinton’s e-mails contain “sensitive compartmentalized information.” This information relates to programs whose access is strictly controlled on a need-to-know basis and protected in “codeword” programs. In order to gain access to this information, an official must be “read into” the particular security program. Even the inspector general’s investigators had to be read into several such programs simply to read the contents of Mrs. Clinton’s e-mails. That read-in is designed to fully brief the cleared official into the program and to ensure that the individual protects any information about the program. If Mrs. Clinton was cleared into these codeword programs — which you might expect for the secretary of state — she has no excuse for not recognizing and taking steps to protect classified information about those programs.

RELATED: Hillary’s E-mail Scandal Is Criminal; When Will She Get Her Handcuffs?

Perhaps recognizing these problems with her defense that the e-mails weren’t “marked classified,” Mrs. Clinton trotted out a new excuse this weekend, telling Stephanopoulos that the classified e-mail chains “did not originate with me.” She falls back on a time-tested Clinton standard: throwing her staff under the bus.

#related#But even there, the former secretary of state cannot completely avoid legal liability for the classified e-mails found on her server. She certainly forwarded many of the e-mails containing classified information to other staffers. And even where she didn’t, she had an obligation to report any security violations to the State Department’s classification officials. Federal criminal statutes make it a felony for any person entrusted with classified information to fail to report the illegal removal of that information from its proper place of custody. So even if Mrs. Clinton did not originate the e-mails containing classified information, she would have had an obligation to report the illegal mishandling of that classified information by others.

Mrs. Clinton’s shifting defenses are more befitting a Sixties sitcom than a presidential candidate in 2016. Would you believe her latest gambit? She’s certainly counting on it.

Shannen W. Coffin, a former Bush-administration lawyer, is a contributing editor to National Review.

Shannen W. Coffin is a contributing editor to National Review. He practices appellate law in Washington, D.C.

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