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A Final -- And Fully Fact-Checked -- Verdict On 'Her Emails'

The Washington Post's fact-checker Glenn Kessler has delivered a conclusive verdict on the subject that gave the presidency to Donald J. Trump: What about her emails? His analysis follows a column I wrote last week examining whether any of Hillary Clinton's emails contained government secrets that would have justified her criminal prosecution, as Trump has urged for years — and has repeated with vehemence since the FBI seized top-secret documents including sensitive nuclear intelligence hidden at his Mar-a-Lago residence.

Kessler has at last settled the controversy that lasted for seven years. Former Secretary of State Clinton, linking to my column in a September 6 Twitter thread, put it bluntly: "The fact is that I had zero emails that were classified."

Beginning in 2015 when "her emails" became the subject of a long and tortuous FBI investigation, Kessler scolded Clinton more than once for "legalistic parsing" of the accusations against her. But now he has closely examined the facts at issue again, done additional reporting, and found "new details" that mitigate former FBI Director James Comey's harsh, unprecedented, and decisive interventions into the 2016 election, which unquestionably swayed it for Trump.The so-called "scandal" stemming from "her emails" wildly dominated election coverage. "News reports on this topic ran 19-to-1 negative over positive," reported the Shorenstein Center at Harvard's Kennedy School.

As the veteran Post reporter explains in painstaking detail, "a review of the recent investigations, including new information obtained by the Fact Checker, shows Clinton has good reason for making a distinction with Trump." Quoting State Department reports and other official documents, with appropriate links, Kessler elucidates what few have understood about the disputes over classification between the State Department and other agencies, and how Comey distorted those disagreements to suggest that Clinton disclosed classified data even when the documents carried no classification markings.

A 2018 report by the Trump Justice Department's inspector general, cited by Kessler, reiterates Clinton's exoneration by the FBI two years earlier: "There was no evidence that... former Secretary Clinton believed or (was) aware at the time that the emails contained classified information," or that she intended to jeopardize classified data in any way.

Kessler also elucidates the flaw behind Comey's assertion that "110 emails in 52 email chains have been determined by the owning agency to contain classified information at the time they were sent or received." This meant, as he notes, that "an intelligence agency, such as the CIA, had decided information in the email was classified, even if the email itself had not been marked classified."

How could Clinton — or anyone else — know that a document was deemed secret or even confidential if it carried no such markings? Comey stated that she or any reasonable person simply "should have known." If that sounds absurd, it's because it is absurd. Comey was playing a word game, suppressing essential information about the process of classification, and, after the damage was done to the Clinton candidacy, assumed a sanctimonious pose that his motive was above politics — all the while violating basic protocols of the Justice Department in making his public statements up to nine days before the election.

The absurdity of Comey's criticism is highlighted in one of several communications between a State Department security official and Clinton's attorney David Kendall. The official concedes that certain disputed information "was likely not classified at the time of sending, but the (department's) Senior Classification Review Panel (SCRP) later determined that it was." Such retroactive determinations are analogous to ex post facto laws, which are unconstitutional because they are so manifestly unfair and subject to abuse.

To maintain a semblance of order, the U.S. government has explicit rules and manuals controlling the classification of its files. Not a single one of the documents that appeared on Clinton's server was marked in accordance with those regulations, not even the three that Comey claimed had such markings. Eventually, he backed away from that claim in congressional testimony. Now the self-righteous Comey has declined to be interviewed by Kessler.

Finally, Kessler reports the conclusions of the two Trump State Department investigations of "her emails," both of which stated that beyond using a private server for State Department communications, a practice continued from her predecessor Colin Powell, she had done nothing wrong. "There was no persuasive evidence of systemic, deliberate mishandling of classified information," according to the Diplomatic Security Service, which conducted the department's final probe in 2019. And again: "None of the emails at issue in this review were marked as classified."

No longer should anyone — not any reputable reporter, not any credible news organization — report other than that irrefutable conclusion.

The facts laid out first in my column and now in fully documented detail by The Washington Post will not, of course, discourage Trump from his endless smears against Hillary Clinton, Barack Obama and all his enemies who should be in prison, or how the FBI and the "deep state" are persecuting him.

Going forward the national media should avoid promoting any false equivalence between "her emails" and Trump's dangerous stashing of national defense secrets, and instead consult the now established facts. As the truth about his grotesque and felonious misconduct emerges in full, the contrast will become starker than ever.

To find out more about Joe Conason and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.

How Many Of 'Her Emails' Were Classified? Actually, Zero

Nearly every day fresh revelations emerge in the federal investigation of the national security and presidential records that Donald Trump purloined from the White House. So far, his alibis have been exposed one after another as empty, and we have seen no adequate public reckoning of why he took those papers, what he meant to do with them, how some went missing, or even exactly how many documents he hijacked to his Florida estate.

As more and more evidence of the former president’s reckless and potentially criminal misconduct comes to light, he and his defenders keep pointing to “her emails.” They insist that because the Justice Department declined prosecution of former Secretary of State Hillary Clinton after a long and thorough probe of how she handled allegedly classified information, there should be no investigation, let alone indictment or conviction of Trump.

But while we don’t yet know the extent or nature of Trump’s abuse of classified documents, we can determine how many were found by investigators, after exhaustive searches, among Clinton’s thousands of State Department emails.

The accurate and definitive answer is zero – although few if any news outlets have informed the public of that startling fact. Moreover, it is a fact that the Trump administration itself confirmed three years ago.

In the recent coverage that references her emails, former FBI Director James Comey is sometimes quoted as saying that of the 33,000 Clinton emails examined by bureau investigators, three had classification markings. That’s less than one-hundredth of one percent, and not worth comparing to Trump’s malfeasance anyway, but it’s still false -- apparently meant to bolster Comey’s absurd claim that other Clinton emails were “classified” although never marked as such.

Those three State Department documents were “call sheets,” innocuous memos reminding Clinton to make scheduled phone calls. During her FBI interview, investigators showed her one of those memos, reminding her to place a condolence call to the president of Malawi--not exactly a top secret matter. As Comey himself later admitted, any classification marking on that sheet had been wrongly applied.

In short, the three supposedly classified documents attributed to her emails were barely even confidential, let alone secret or subject to the sanctions of the Espionage Act.

Still, the hunting of Hillary never ends and – amid regular threats to her by Trump when he was president -- inevitably resumed after the FBI investigation concluded. What has been overlooked is that “her emails” and those of her State Department aides became the target of not one but two departmental probes that picked up where her exoneration by the Justice Department left off.

The first round, which began under Rex Tillerson, Trump’s first Secretary of State, opened with an inquiry into a claim of 41 “security incidents” attributed to Clinton and concluded, after months of argument and appeals by her attorneys at Williams & Connolly, that none of those alleged incidents was valid, though she shouldn’t have used a private email server. In that respect her conduct was no different from her Republican predecessor, the late Colin Powell, who advised her to use private email, or many officials in the Bush White House, including Karl Rove.

The second State Department review commenced with more fanfare in 2019 under Tillerson’s unscrupulous successor Mike Pompeo, who, it is worth noting, soon came under official scrutiny himself for gross and self-serving misuse of State Department resources. By then, the hypocrisy behind Republican indignation over “her emails” had been highlighted by massive, repeated security breaches in the Trump White House, where numerous officials , including Ivanka Trump, unlawfully used private email accounts and normal protective protocols were routinely flouted.

No doubt Pompeo, a veteran of the House Select Committee on Benghazi, hoped to find something, anything to arraign Clinton. But again, in the end, there was zero, zilch, nada. Although the second review began with a July 31, 2019 notice from State Department officials that they “suspected” Clinton might be responsible for 12 classified “spillages,” this investigation concluded nine weeks later that she did not “bear any individual culpability” for those incidents.

Again, the overarching absurdity of the State Department and FBI investigations lay in the fact that nearly all of the documents at issue had been classified retroactively – meaning they had carried no markings identifying them as such when Clinton handled them. Comey's assertion that documents can somehow be deemed inherently secret, without proper markings or any classification history whatsoever, is extremely dangerous and hostile to the concept of open democratic governance. It is an idea that should never have been entertained by a free press.

Nobody in their right mind would hold Clinton, or any official, to be culpable under those circumstances.

The same cannot be said for Trump in the current documents scandal, as must be obvious to anyone who has seen that photograph of the folders, clearly marked “TOP SECRET,” strewn around his office floor at Mar-a-Lago, or the folders emptied of their contents, who knows where.

Despite the hysterical accusations that persist to this day, Hillary Clinton was repeatedly judged to be innocent of jeopardizing national security, including twice by the Trump administration. It now appears frighteningly obvious that Donald Trump is not nearly so innocent.

Don't Compare 'Her Emails' With Trump's Brazen Misconduct

Ever since the FBI searched Donald Trump’s premises at Mar-a-Lago on August 8 to retrieve the boxes of files he kept there unlawfully, he has tried to distract attention by reviving his bawling about "her emails."

For years, Trump has insisted that Hillary Clinton somehow escaped the punishment she merited — amid shrieks of "Lock her up!" from the likes of Rudy Giuliani and Mike Flynn— and now complains that he is somehow the victim of a "double standard" because the FBI is investigating his apparent theft of national security materials. "Absolutely nothing has happened to hold her accountable," he whined earlier this month.

In fact, the former secretary of state endured many months of an intrusive investigation that cost her heavily in legal fees and personal demonization —although she was finally and fully exonerated of any criminal wrongdoing or intent by the Justice Department.

Rather than benefiting from favorable treatment by the FBI, Clinton was the target of a concerted smear campaign by Trump allies within the bureau instigated by Giuliani. Their internal operation pushed then FBI director James Comey to brazenly violate strict Justice Department political guidelines by discussing her case publicly twice, the last time only weeks before the November 2016 election — while at the same time concealing the counterintelligence probe of the Trump campaign's collusion with the Kremlin. The sanctimonious Comey, who claimed to be above politics, cowered under threat from right-wingers lodged within the Bureau.

So, while the differences between the Clinton and Trump cases are vast indeed, they leave little space for the feigned indignation of the former president and his flunkeys.

What we know about Hillary Clinton's emails is that of the many thousands examined by the FBI, only a tiny proportion — a number in the low single digits — were deemed to have been "classified." Of those, none disclosed sensitive information that could have jeopardized national security, such as nuclear weapons secrets, but instead involved drone strikes that had already been prominently reported in national news outlets. Most of the emails deemed secret had either been classified after the fact or were improperly marked in the first place.

As Comey explained at the time, the FBI found no evidence that Clinton, her aides, or her attorneys had intentionally withheld any information from the State Department, the National Archives or the Justice Department, or obstructed the investigation in any way.

We know far less about the documents that Trump allegedly removed from the White House, but what has been reported so far draws a sharp contrast with the Clinton emails episode. According to the search warrant and receipt released by Attorney General Merrick Garland, Trump evidently absconded with hundreds of hard copies of highly classified documents — all properly marked — that implicated serious national security and defense matters.

The Justice Department plainly suspects him of violating the Espionage Act, of hiding or destroying those sensitive documents, and of obstructing the government's efforts to locate and retrieve them.

In other words, Trump acted with purpose and in direct violation of the law, including the Presidential Records Act. He continued to defy the law even after the Justice Department issued a subpoena for documents he had withheld — which was why the FBI went to Mar-a-Lago to recover them.

Despite the excessive and obsessive media coverage that contributed to Hillary Clinton’s loss, the more we learned more about the substance of Clinton's emails, the more their importance diminished, ultimately to the vanishing point. The opposite is true of Trump's purloined documents, whose significance only seems to be increasing. And we are still at the very beginning of this scandal.

In panic, Trump and his henchmen now insist that he had "declassified" all those papers, and many others too, supposedly for the sake of transparency. But top officials of his administration have openly ridiculed that assertion, which is absurd on its face, as a brazen lie. Much like his election lies, it is a hollow claim, devoid of any supporting facts or evidence. Donald Trump lie? What a surprise!

Protecting the nation requires a careful declassification process, even when the president wishes to alter the status of specific documents. For Trump to void secrecy with a wave of his hand would create a state of chaos, gravely damaging national security. And since he believes in exercising presidential power so recklessly, he must never be allowed anywhere near the nation's secrets again.

Trump and his minions only bring up Hillary Clinton as a ruse. Keep in mind that "her emails" only became an issue because House Republicans were trying to damage her politically, bring down her poll numbers, as the perpetually stupid Kevin McCarthy blurted out, by concocting a pseudo-scandal from the Benghazi attack. She put that to rest when she testified before the House Benghazi committee for 11 hours, answering every question posed by her inquisitors.

Three days after the FBI search at Mar-a-Lago, on August 11, Trump invoked the Fifth Amendment more than 440 times in response to questions from the New York Attorney General investigating his crooked business practices. In 2016, Trump said, “If you're innocent, why are you taking the Fifth Amendment?" We should expect that if he is ever compelled to testify about the potential crimes involved in swiping and concealing White House documents, we will hear him repeat the Fifth Amendment many more times.

Investigating Trump's White House Document Scandal, Without Fear Or Favor

The world-historical carnage inflicted by the singularly misreported story of the 2016 presidential election has been forever captured in a pithy, ironic cliche: "But her emails..."

While every politically aware American understands that baneful phrase, it gained a far deeper significance this week with revelations of how former President Donald J. Trump "mishandled" — in fact stole, flushed, ripped up and perhaps even ate — White House documents he didn't want archivists, historians, or criminal investigators to obtain. That includes some unknown but undoubtedly large volume of classified material, from "Confidential" to "Top Secret," including information pertinent to the investigation of his attempted coup and insurrection.

Trump's outraged bellowing about Hillary Clinton's alleged mishandling of her emails and other State Department documents was of course utter fakery. Subsequently, not only Trump but nearly everyone around him — notably Jared Kushner and Ivanka Trump, Steve Bannon and many others — regularly used unsecured private communication devices to discuss government business. "Lock her up!" was nothing but the usual Trumpian cynicism and should have been a predictive sign that he was projecting his own real and rampant misconduct.

The stunning truth about Trump's unlawful and bizarre treatment of presidential documents is just beginning to emerge in full, yet certain mainstream media outlets appear determined to minimize his potential criminal exposure. No less an authority than the New York Times informed its readers last week that "if Mr. Trump was found to have taken materials with him that were still classified at the time he left the White House, prosecuting him would be extremely difficult and it would pit the Justice Department against Mr. Trump at a time when Attorney General Merrick B. Garland is trying to depoliticize the department."

That statement appeared in a news article, although it clearly expressed the unsupported opinion of Times journalists, hiding behind a characterization of Garland's current state of mind regarding Trump — in short, punditry and soothsaying. And that report stands in stark contrast to the weight the Times put in the balance in 2016 — influencing the reporting of every major American news outlet — by obsessively insisting that Hillary Clinton was vulnerable to criminal prosecution. From that coverage, which pervaded American political media, innocent voters could only surmise that she had probably committed felonies and that her alleged misdeeds were the most important fact of the election.

So obsessive, in fact, was the paper's coverage that "in just six days, the New York Times ran as many cover stories about Hillary Clinton's emails as they did about all policy issues combined in the 69 days leading up to the election," according to analysis published by the Columbia Journalism Review. One editorial, published on May 26, 2016, after the State Department inspector general exonerated her, was headlined "Hillary Clinton, Drowning in Email," noting that "the email controversy" amplified by the Times was "likely to make her seem less personable to many voters."

Washington journalists may attempt to justify that distorted focus, much as they once sought to justify the Whitewater non-scandal two decades earlier, but it's still a disgrace. The judicious James Fallows, writing in The Atlantic, described the Times' coverage of Hillary's emails as "imbalanced and credulous" and "a legitimizing and enabling factor" in Trump's election.

The FBI and the Justice Department ultimately found no crimes committed by Secretary Clinton, despite FBI director James Comey's glaring and sanctimonious violations of Justice Department policy in bandying about claims of potential criminality, before pronouncing her innocent.

At this moment, we know no such thing about Trump or his gang — who appear to have both enabled and warned him many times about his violations of the Presidential Records Act as well as various classification statutes. We don't know what was in the dozen or more boxes with which he absconded from the White House, except that he appears to have taken classified material and that somehow the records of his telephone communications during the January 6 insurrection appear to have been deleted.

The National Archives and Records Administration has asked the Justice Department to investigate these matters. We must hope that Attorney General Merrick Garland will do his duty in enforcing the rule of law and pursue the facts wherever they may lead. No longer president, Trump is subject to criminal prosecution if he broke the law as president — and there is plenty of reason to believe he did so. Given his unbroken record of lies, subterfuges and brazen obstruction of justice — 10 instances of obstruction memorialized by Robert Mueller in his report on Russian influence on the 2016 election alone.

So, reporters and analysts should take a very long step back before offering any assumptions or predictions that Trump cannot be prosecuted or implying he did not commit crimes. The same people telling us that he can't be prosecuted once led us to expect that Hillary Clinton would be locked up.

Let the investigation proceed, and let justice be done.

To find out more about Joe Conason and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.

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Smart. Sharp. Funny. Fearless

Start your day with The National Memo Newsletter

A Final -- And Fully Fact-Checked -- Verdict On 'Her Emails'

How Many Of 'Her Emails' Were Classified? Actually, Zero

Don't Compare 'Her Emails' With Trump's Brazen Misconduct

Investigating Trump's White House Document Scandal, Without Fear Or Favor

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