I am confused about how anything Hillary Clinton leaked or potentially leaked while Secretary of State would have been classified. Is not the Secretary of State authorized to declassify information, as she was the head of the state department?

Since I do not fully understand how information is declassified, it seems as if anything she chose to have on her email servers was in action a legal declassification of that information.

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    I do not enough to write a full answer, but your last paragraph is like saying that if she prints some secret document and she forgets it in a taxi, then the document no longer legally secret... does not make a lot of sense to me.
    – SJuan76
    Commented May 28, 2016 at 10:02
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    I'm not an expert, but the laws are more specific than that. One law is document retention, which has nothing to do with classification. She didn't retain every document, so she's obviously guilty there. It's legal to receive documents on private e-mail and sometimes a matter of convenience, but they are legally required to retain them. The new law requires that all private e-mail correspondence be CC'd to the government e-mail account which automatically backs up a copy. That law wasn't in place when she was in office.
    – userLTK
    Commented May 28, 2016 at 12:41
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    The 2nd illegal thing she did was let personal employees go through her e-mails which she may have done for convenience, but letting non government employees read to her and delete read e-mails was against the law too. As to leaving classified documents in a taxi, as I understand it, arguably that's illegal too and it doesn't declassify the document (lets add, incompetence as well), but the law tends to not press hard on unintentional actions like leaving a classified document in a taxi. That's a key issue for this case, intentional law breaking vs error of convenience and bad judgement.
    – userLTK
    Commented May 28, 2016 at 12:47
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    @DrunkCynic There are many laws about classified information handling. Most of the criminal laws require some level of intent above negligence (in fact, IIRC they all do -- the ones with the lowest level of intent require gross negligence, which is a higher standard than simple negligence). Administrative proceedings might not require negligence, but the most those can result in is loss of clearance and termination of employment.
    – cpast
    Commented May 28, 2016 at 18:52
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    @DrunkCynic No. Not a single part of 793 criminalizes negligence. A single provision lists gross negligence as the necessary intent level, but "negligence is sufficient" is still wrong -- gross negligence is a significantly higher standard than ordinary negligence, and it's not unusual for it to be closer to recklessness (conscious disregard of risks) or absence of even the slightest care. EO13526 is not criminal law, it's the administrative sanctions I mentioned that can lead (at most) to loss of clearance and employment.
    – cpast
    Commented May 28, 2016 at 20:22

1 Answer 1


The Department of State, to include Hillary Clinton as the Secretary of State, does have Originator Classification Authority. This means she carried the authority to control the level at which material generated by the Department of State is classified, within the boundaries of applicable doctrine. There is some material that must be classified as a matter of course, to include correspondence with Foreign Governments, controlled schedules, and information garnered from classified material.

However, there was information contained within her emails that had been classified by government agencies outside of the Department of State, beyond the scope of her OCA. Among her emails on the 'private server' were satellite imagery of foreign countries, classified by the intelligence agencies. These images are controlled as Top Secret, Special Compartmentalized Information, Talent Keyhole, but were located on her personal email server and mislabeled as unclassified. These items should never have been present on an unclassified, or general use, information system. The Government uses specially developed cyber enclaves to protect this data, segregating it from everything else. In order for these pictures to exist on an unclassified system, someone illegally copied them from a system cleared Top Secret information, crossed the physical air gap to a general use computer, and then emailed them to her. The situation is further complicated by the use of the personal server; if these communications had been made via a Government Information system, there would be a firm management and accounting of the emails. This would have satisfied the requirements of the Federal Records Act. By operating on via a personal server, she bypassed the established mechanisms for information assurance and accounting.

At (5 July 2016), per the FBI investigation report, there are 110 emails over 81 email chains that contained classified material controlled by an agency other than the State Department. Of those 52 email chains, 8 were Top Secret, 36 were Secret, and 8 were Confidential. This includes an email using portion markings for the paragraphs, reported by Fox News 10 June 2016. Additionally, about 2,000 were up-classified to Confidential by the Department of State, demonstrating that classified material was being improperly transmitted via an unclassified network. This only accounts for the emails that have been surveyed; the contents of the estimated 32,000 she deleted can't be verified. That the material had to be classified after the fact is immaterial; it contained information that by doctrine should have been properly controlled and segregated from the general service information system. This is why the talking point used by Hillary Clinton shifted from "no classified material" to "no material that was marked classified". It was indefensible for her to continue claiming there wasn't classified material on the email server, after a preponderance of emails had to be classified because of the material they contained.

The FBI investigation report reveals that Hillary Clinton's lawyers were not reading the emails individually when they deleted them from the private server. Instead, the just deleted emails according to their header information and through the use of search terms. This is used as an explanation for why work related emails produced by Hillary Clinton found in other inboxes or accounts were not among those that she turned over to the State Department; while there is no evidence it was intentional, these emails were deleted during the review. Had Hillary Clinton operated her email via a government ran server, existing mechanism would have assured the emails were properly archived.

Individuals that are determined eligible to handle classified material, and granted access to that classified material, are trained on the control of material that is classified and the recognition of material that should be classified. Since she has been in the government service for decades, she should have an understanding of how classified information is controlled. There is a tight, doctrine driven, process for evaluating people that will have access to classified material, instructing them on its care, and training them on how to recognize material that should be classified. The proper response to seeing these images on her personal, non-government, email system would be to call away a spillage. This would put cyber security and information assurance individuals into motion to track down how the information crossed the air gap, which computers it had touched, and commence the confiscation of those computers.


Separate from the FBI Investigation report from 5 July 2016, the FBI released their interview and investigation notes on 02 September 2016. These documents describe that there were 81 e-mail chains which the FBI determined were transmitted and stored on Clinton's unclassified server, ranging from confidential to Top Secret, Special Access Program, at the time they were sent between 2009 and 2013. Additionally, the US Department of State, in connection with a Freedom of Information Act, identified 2000 emails that were Confidential and 1 that is Secret. Of those 81 email chains, containing classified material at the time they were sent, 8 were TOP SECRET, 37 SECRET, and 36 CONFIDENTIAL. Of that, 7 were Special Access Programs, 3 were Special Compartmented Information. Further, of the 81 email chains, 36 were Not releasable to Foreign Governments (NOFORN) and 2 were releasable only to Five Eye Partners.

Why intent does not matter.

Through out his statements on the issue, and in the many discussions that followed, the focus has shifted to a lack of evidence for "intent" to mishandle classified information. This confuses the issue, because intent isn't required. US Code Title 18, Section 793, Subsection (F), quoted below in its entirety, doesn't stipulate that intent must be demonstrated.

(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer— Shall be fined under this title or imprisoned not more than ten years, or both.

Focusing specifically on the satellite imagery that existed in her emails, this alone constitutes a violation of 793, since it is a photograph moved from its proper place of custody.

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    @Komitue Yes, it seems to be the President. This answer explains it quite well: politics.stackexchange.com/a/10715/7985
    – A. Darwin
    Commented May 28, 2016 at 14:55
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    How much of the information on her private server was actually classified at the time she received it, and how much of it was classified later? I think you're right that somebody somewhere (including her) should have realized, "Hey, this probably should be classified," but it makes me wonder just how many other officials are out there freewheeling in information that maybe don't have as much scrutiny and thus don't have the correct classification levels on all of their correspondence as well (regardless of who's server it's on)
    – user5155
    Commented May 31, 2016 at 15:33
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    @DrunkCynic - I had the same question as Jeff, and I don't think the edit addresses it (or I just don't see it). It's not a question of how many emails have currently classified information, as how many emails have information which was classified at the time it was sent. I haven't been following the story much, but from what little I've heard at least some of the information wasn't classified until years later.
    – Bobson
    Commented Jun 1, 2016 at 1:25
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    @TTT Similar problems exist; the complication by the use of a personal server is that there isn't accountability for the 32,000 emails that she deleted. Via a government server, there would have been a method to retain those for record keeping. Commented Jun 1, 2016 at 18:46
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    Related: theguardian.com/us-news/2016/feb/04/…
    – user5155
    Commented Jun 3, 2016 at 13:39

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