Clinton’s email defenses continue to erode

Hillary Clinton has relied on two main defenses when questioned about her use of a private email server and the potential damage it posed to our national security. First, her mantra is that she never sent or received material that was marked classified when she sent or received it. Second, she says that there is a dispute between the State Department and the intelligence community as to whether the information on her server that has subsequently been marked classified should have been so designated.

The first defense doesn’t shield her from possible criminal jeopardy, but it held some promise in the court of public opinion. Same with the second defense, since many people suspect that the government “classifies” way too many documents.

Because the material in question isn’t in the public domain (it’s classified, after all), the public can’t tell whether it should be considered classified. But if, as Clinton has insisted, there is a dispute between the State Department and the intelligence community over this, then her defense may, for some, be plausible.

However, events have undermined both of Clinton’s defenses. First, we learned in November that Clinton signed a nondisclosure agreement in which she acknowledged that classified information is classified regardless of whether it is “marked or unmarked.”

That agreement — the “Classified Information Nondisclosure Agreement” or SF-312 — stipulates:

As used in this Agreement, classified information is marked or unmarked classified information, including oral communications, that is classified under the standards of Executive Order 13526.

Thus, Clinton acknowledged in writing that the distinction she now relies isn’t controlling. Her first defense, accordingly, seems to have lost much of its force in the public square.

Now, to make matters worse for Clinton, the State Department has undermined her fallback position that she is the victim of “over-classification.” It did so by making clear, in public, that at some of the emails on her server are “Top Secret.” The Department’s spokesman, John Kirby, stated that seven email chains, consisting of 37 pages, “are being upgraded at the request of the intelligence community because they contain a category of top secret information.”

Kirby did what he could to help Clinton when he said the upgrade was at the request of the intelligence community. But his statement was unambiguous that, regardless of who made the request, the documents “contain a category of top secret information.”

In short, there is no interagency dispute about this material. It is too sensitive to be released even with redaction.

The earth keeps moving under Hillary Clinton’s feet.

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