State Dept.: OK for Clinton’s Lawyer to Have 30K Dept. Emails, But Not IG of Intelligence Community

Brittany M. Hughes | August 6, 2015 | 3:09pm EDT
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State Department Spokesperson Mark Toner (Screen capture)

( – The State Department has taken the position that it is okay for former Secretary of State Hillary Clinton’s personal lawyer to have the 30,000 department emails she had on her personal server at her home, but it is not okay for the inspector general of the Intelligence Community to have them.

In a July 23 memo that went to the chairman and ranking members of the House and Senate Intelligence committees and to Director of National Intelligence James Clapper, Intelligence Community Inspector General Charles McCullough said that 30,000 State Department emails from Clinton’s private server were “purported to be copied to a thumb drive” in the possession of Clinton’s personal lawyer, but that the State Department had rejected his request that the Office of Inspector General for the Intelligence Community be given a copy of the same 30,000 emails.

“State IG and I requested a copy of the 30,000 emails in State possession so that we could perform sampling and render an independent determination of the sufficiency of the internal controls being implemented by State FOIA to protect classified national security information,” McCullough said in the memo. “State agreed to provide State IG with limited access to these 30,000 emails. However, State rejected my office’s request on jurisdictional grounds.”

“The 30,000 emails in question are purported to have been copied to a thumb drive in the possession of former Secretary Clinton’s personal counsel, William and Connelly attorney David Kendall,” McCullough added.

The State Department had originally turned over a sampling of just 40 of the roughly 30,000 total department emails stored on Clinton’s private server to the Intelligence Community Inspector General's office to review. Of those 40 emails, the IC IG determined that “four contained classified IC information which should have been marked and handled at the SECRET level,” according to the memo McCullough sent.

The IC IG added Clinton’s emails include “potentially hundreds of classified emails,” according to State FOIA officials.

Since then, State Department Spokesman Mark Toner has explained the department’s position that it is okay for Clinton’s lawyer to have the 30,000 department emails but not the lawyers who run the Intelligence Community’s inspector general’s office.

During a press briefing on July 31, a reporter asked Toner, ‘It has been raised, there have been concerns raised by the IGs that a thumb drive containing all of these emails that you’re releasing in un-redacted form is on a thumb drive in the office of the lawyer of the former secretary. And they--the IGs, the DNI IG in particular, is concerned that this is not a good thing and a violation of the law because that information, whether or not it was classified at the time it was sent, is now classified.

"And it doesn’t matter how secure [the thumb drive] might be. I mean, he could have swallowed it. It doesn’t matter,” the reporter added.

“So we provided Secretary Clinton’s lawyers with instructions regarding appropriate measures for physically securing the documents and confirmed, via a physical security expert, that they’re taking those measures," Toner said in response. "And I would also say that former Secretary Clinton does have counsel with clearance."

“Okay. Well, so then the – so then that’s not an issue. That’s what you’re saying?” the reporter asked.

“Yes, yeah,” Toner answered.

"That's what you're saying?" the reporter asked.

"Yeah, exactly," said Toner.

Again at a press briefing on Aug. 3, Toner asserted that “all of that material is actually being held in a secure environment at the law offices, and…her attorney is also cleared to hold this kind of material. And we’ve, in fact – our security experts have gone and looked at the facility and deemed it appropriate.”

During the press briefing Wednesday, asked Toner: “[McCullough] says in here that he requested the rest of the 30,000 emails in question, however, 'State rejected my office’s request on jurisdictional grounds.' So the State Department has cleared Ms. Clinton’s personal attorney to view these [emails] and to keep them, but did not turn them over to the Intelligence Community IG. Do you know if this has changed at all?”

“Again, as we clear these documents, these emails, and go through the process, and as I said, redact those portions we now would deem classified or should be upgraded, we share those with the intelligence community already,” Toner responded.

“We have channels here, to be frank, and we have shared those with our own IG. But it’s not incumbent on us, and frankly not in our jurisdiction, to allow the IC IG access to those emails,” he went on.

“That said," he continued, "we’re going through them all diligently, we’re sharing them through the process that’s established to clear those documents via…or, in accordance with FOIA regulations. The IC is getting eyes on these, it’s just how we’re diligently kind of going through the process before publication. We always clear these through the IC.” followed up with Toner, “Why would the State Department clear David Kendall to view them and to have them, but not the IC IG?”

“Well he’s…again, he is former Secretary Clinton’s lawyer, he is in possession of these, again, because of, as I tried to lay out, because of the request that he’s had to preserve those documents, he has asked to hold onto those,” Toner said. “So in accordance with that, we simply cleared the site where they’re being held, make sure that it’s a secure facility, and capable of holding what could be potentially classified material.”

Toner also said Kendall has retained possession of the emails from Clinton’s private server per a "preservation request" from the Select Committee on Benghazi and both the State and Intelligence Community IGs.

“So the counsel for former Secretary Clinton advised the Department at the time that it was a subject to a separate document preservation request from the Select Committee on Benghazi, and from the inspectors general for the department as well as for the intelligence committee,” Toner said.

“So accordingly, Department officials provided Secretary Clinton with instructions regarding appropriate measures for physically securing these documents,” he continued. “So because of these preservation requests or orders, they did not want to physically relocate them or give them directly to the department.

“So what we did, as I talked about a little bit last week, is we actually had a security expert go look at the facility where they were being held at the lawyer’s offices and made sure that they were up to code or up to standards,” Toner said.


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