Morning Joe's Newspeak

During an appearance on MSNBC's Morning Joe, Washington Post columnist David Ignatius thoroughly debunked arguments that Hillary Clinton should be charged with a crime as a result of her use of a private email system while serving as secretary of state. When MSNBC re-aired the first hour of its program later in the morning, the bulk of Ignatius' debunking had been edited out.

Does Hillary Clinton have a serious legal problem because she may have transmitted classified information on her private e-mail server? After talking with a half-dozen knowledgeable lawyers, I think this “scandal” is overstated. Using the server was a self-inflicted wound by Clinton, but it’s not something a prosecutor would take to court.

“It’s common” that people end up using unclassified systems to transmit classified information, said Jeffrey Smith, a former CIA general counsel who’s now a partner at Arnold & Porter, where he often represents defendants suspected of misusing classified information.

“There are always these back channels,” Smith explained. “It’s inevitable, because the classified systems are often cumbersome and lots of people have access to the classified e-mails or cables.” People who need quick guidance about a sensitive matter often pick up the phone or send a message on an open system. They shouldn’t, but they do.

“It’s common knowledge that the classified communications system is impossible and isn’t used,” said one former high-level Justice Department official. Several former prosecutors said flatly that such sloppy, unauthorized practices, although technically violations of law, wouldn’t normally lead to criminal cases.

Clinton’s use of a private e-mail server while she was secretary of state has been a nagging campaign issue for months. Critics have argued that the most serious problem is possible transmission of classified information through that server. Many of her former top aides have sought legal counsel. But experts in national-security law say there may be less here than it might appear.

First, experts say, there’s no legal difference whether Clinton and her aides passed sensitive information using her private server or the official “state.gov” account that many now argue should have been used. Neither system is authorized for transmitting classified information. Second, prosecution of such violations is extremely rare. Lax security procedures are taken seriously, but they’re generally seen as administrative matters.

Potential criminal violations arise when officials knowingly disseminate documents marked as classified to unauthorized officials or on unclassified systems, or otherwise misuse classified materials. That happened in two cases involving former CIA directors that are cited as parallels for the Clinton e-mail issue, but are quite different. John Deutch was pardoned in 2001 for using an unsecured CIA computer at his home to improperly access classified material; he reportedly had been prepared to plead guilty to a misdemeanor. David Petraeus pleaded guilty to a misdemeanor in April for “knowingly” removing classified documents from authorized locations and retaining them at “unauthorized locations.” Neither case fits the fact pattern with the Clinton e-mails.

Clinton defended herself Aug. 18 with a carefully worded statement: “I did not send classified material, and I did not receive any material that was marked or designated classified.” Those may sound like weasel words, but they actually go to the heart of what might constitute a criminal case.

What happens in the real world of the State Department? Smith takes the hypothetical example of an assistant secretary who receives a classified cable from, say, Paris, about a meeting with the French foreign minister and wants quick guidance from the secretary. So he dashes off an e-mail — rather than sending a classified cable that would be seen by perhaps a dozen people.

“Technically, he has taken classified information and put it onto an unclassified system,” Smith said. “It’s the same as picking up a telephone and talking about it. It’s not right. But the challenge of getting the secretary’s attention — getting guidance when you need it — is an inevitable human, bureaucratic imperative. Is it a crime? Technically, perhaps yes. But it would never be prosecuted.”

Informal back channels existed long before e-mail. One former State Department official recalled the days when most embassies overseas had only a few phones authorized for secret communications. Rather than go to the executive office to make such a call, officers would use their regular phones, bypassing any truly sensitive details. “Did we cross red lines? No doubt. Did it put information at risk? Maybe. But, if you weren’t in Moscow or Beijing, you didn’t worry much,” this former official said.

Back channels are used because the official ones are so encrusted by classification and bureaucracy. State had the “Roger Channel,” named after former official Roger Hilsman, for sending secret messages directly to the secretary. The Joint Chiefs of Staff had a similar private channel. CIA station chiefs could send communications known as “Aardwolves” straight to the director.

Democratic presidential candidate Hillary Clinton responded to reporters in Las Vegas on Tuesday over the controversy surrounding her personal e-mail server. Clinton reiterated that she did not send or receive any classified material from her personal account. (AP)
Are these channels misused sometimes? Most definitely. Is there a crime here? Almost certainly not.

STEPHANOPOULOS: OK. So we'll cut back to you on that later on.

But I do want to ask you one final question on this Hillary Clinton e-mail controversy. Which, of course, put you back in the news a bit this week, as well.

You were secretary of State during the early days of e-mails. You were one of the first secretaries, I believe, to set up a personal e-mail account. And you pushed to modernize the State Department's system.

Based on your experience, what do you make of these revelations this week and what would you recommend that she do now?

POWELL: I -- I can't speak to a -- Mrs. Clinton and what she should do now. That would be inappropriate.

What I did when I entered the State Department, I found an antiquated system that had to be modernized and modernized quickly.

So we put in place new systems, bought 44,000 computers and put a new Internet capable computer on every single desk in every embassy, every office in the State Department. And then I connected it with software.

But in order to change the culture, to change the brainware, as I call it, I started using it in order to get everybody to use it, so we could be a 21st century institution and not a 19th century.

But I retained none of those e-mails and we are working with the State Department to see if there's anything else they want to discuss with me about those e-mails.

STEPHANOPOULOS: So they want...

POWELL: (INAUDIBLE) have a stack of them.

STEPHANOPOULOS: -- they've asked you to turn them over, but you don't have them, is that it?

POWELL: I don't have any -- I don't have any to turn over. I did not keep a cache of them. I did not print them off. I do not have thousands of pages somewhere in my personal files.

And, in fact, a lot of the e-mails that came out of my personal account went into the State Department system. They were addressed to State Department employees and the State.gov domain. But I don't know if the servers the State Department captured those or not.

And most -- they were all unclassified and most of them, I think, are pretty benign, so I'm not terribly concerned even if they were able to recover them.

STEPHANOPOULOS: OK, Mr. Secretary, thanks very much for joining us this morning.