The Reasons Comey Was Wrong in 2016 that Haven’t Been Discussed

As a long-awaited Justice Department report is about to be released on issues with the handling of various issues during the 2016 election by the Justice Department, including the FBI, it is that we come to grips with on how then-FBI Director James Comey was wrong throughout the 2016 campaign on multiple levels, including ones missing from the national discussion.

Originally published on LinkedIn Pulse June 6, 2018

By Brian E. Frydenborg (LinkedInFacebookTwitter@bfry1981) June 6th, 2018 (based in part on an earlier piece published on October 29th, 2016: Comey Damages Clinton With Horribly Timed Weiner Speculation in Historic FBI Injection Into Election)

Michael Conroy/AP, Cliff Owen/AP

AMMAN — Former FBI Director James Comey might be more of an anti-Trump hero now, but that does not erase the stain of the spectacularly bad he showed throughout 2016 in his handling of the Hillary Clinton e-mail server probe. As Justice Department Inspector General Inspector General Michael Horowitz’s investigative report is about to be released, now is a good time to revisit these issues in a way that finally avoids the myopia of much of the previous discussion that nearly always missed or failed to give enough attention to the issues discussed below.

But first, a quick recap:

After Comey’s unprecedented disclosure eleven days before the election that potentiallyrelevant e-mails may have been on Anthony Wiener’s laptop, two days before the election he let it be known that she was, again, in the clear. 

It was later revealed that Huma Abedin had only forwarded two e-mails to Weiner’s computer relevant to the investigation, duplicate e-mails with classified content that had already been reviewed by the and that ten other relevant e-mails with classified content had been automatically backed up to Wiener’s laptop, also duplicates that had previously been reviewed by the FBI. None of the e-mails were marked as classified.

All that was over just 12 duplicate e-mailsAnd by itself (hardly ignoring other major factors that could also be characterized the same way, not the least of which involve Russian cyberwarfareracismmisogyny, and absolutely atrocious media coverage), this can be said to have cost Clinton the election.

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Beyond the above, there are deeper, neglected issues with how Comey looked at and framed core issues of the investigation throughout 2016, most notably how he characterized Clinton “extremely careless,” beginning in an extremely controversial (to say the least) 2016, press conference.

Now, before I continue, I want to stress that I still believe Comey was and is a straight shooter and public servant of honesty and integrity, and that it is clear many of Trumps and Republicans attacks against Comey are absurd, disgusting, blatantly false, and hypocritical in the extreme; but all that does not mean Comey is infallible, and Comey was flat-out wrong and myopic in his famously characterizing Clinton and her team as “extremely careless” in the handling of classified information, mainly because of five things:

1.) Numbers

To delve into the topic of classification itself, there are the only three actual levels of classification: CONFIDENTIAL (the lowest), SECRET (the middle), and TOP SECRET (the highest). It has often been erroneously reported that SAP (Special Access Program) is a higher level of classification, but it is actually a special type of TOP SECRET or SECRET information, designed to give people who “need to know” that information access to it but not indicating a higher level of sensitivity within the classification level. These days, SAP often has to do with the U.S. drone program (more on that later).

In 2016, the FBI’s “July” report (released in early September by a clearly-exasperated-with-the-brouhaha-and-political-criticism-Comey) and information provided by the State Department detail how many e-mails had contained classified information at the time they were sent to or received by Clinton’s server: about 200 e-mails in 82 e-mail chains that passed through Clinton’s server out of about 47,000 e-mails were what was at issue in 2016. All but 13 of these chains were turned over by Clinton as part of 30,000 emails Clinton’s team had determined were work-related (most can be read here), and none of those other 13 e-mail chains—which were found among some additional 17,000 unique work and personal e-mails recovered by the FBI—were TOP SECRET.

Overall, of the 82 e-mail chains: 69 were still classified in 2016 (16 of which have been downgraded in their classification level), and 13 have been declassified, suggesting that at least those 16 and 13 are not involving anything particularly serious or particularly sensitive, even at the time.

8 chains were classified as TOP SECRET (7 of those, consisting of 22 e-mails total, were SAP), 37 chains were classified as SECRET, and 37 chains were classified as CONFIDENTIAL. 

So, out of over 47,000 e-mails under consideration, let’s remember that about 200, or about 0.425%, were deemed to have contained classified information at the time of sending and receiving and at least half or more were either the lowest level of classification or concerned publicly available information, and some of them were not even considered classified at all by Clinton’s own State Department. 

This means over 99.5% of the e-mails reviewed had no classification issues whatsoever.

No official in the history of the modern United States has ever so much of her communications material examined (or released so much to the public) so thoroughly and so soon after her time in office, and she used e-mail more than any of her predecessors because of the increasingly technological times in which we live. If most other senior government officials had an audit like Clinton’s it is safe to say that she would hardly stand alone in having less than 0.5% of her content containing some sort of classified information; some would very likely have more, given the problems with overclassification…

2.) Overclassification

The available reporting on the subject suggests that nearly all of the most sensitive TOP SECRET information (7 of 8 TOP SECRET chains) in the classified content that passed through Clinton’s server had to do with SAP-related, publicly available information on the drone program or other publicly available information about North Korea, which might be included in the 7 or could even be the 8th; the State Department did not consider the North Korean e-mail classified at the time, through at least one other agency did. In both cases, anything from an eyewitness account published by an NGO to a newspaper report about drones would be considered classified. This raises the issue of rampant & unnecessary overclassification  in the government, often more about interagency turf wars than national security, to the extent that prolific national security officials of both major political parties have publicly testified that “between 50% and 90% of all classified material could even be disclosed without any detrimental effect on national security.” Objectively, then, much and perhaps all of the information with the highest classification labels in Clinton’s e-mails were objectively not really sensitive or secret in natureAnd it should also be noted that CONFIDENTIAL generally describes information that is so mundane and harmless that America’s intelligence chief in 2016, Director of National Intelligence James Clapper, was considering a move to do away with the CONFIDENTIAL classification level entirely, noting that this is something the UK did recently in 2014 “without [adverse] impact.”

The only indications we have in terms of the content of the most sensitive material of the highest classification level is that it was publicly available information.

3.) Labels

Zero of these e-mails were properly marked as classified. All e-mails that are supposed to be classified are supposed to have clear, obvious headings and subject lines indicating that they contain classified information, but not one of the roughly 200 e-mails had anything indicating it contained classified information in any header or subject line. In fact, only 1 classified e-mail chain contained any classified markings whatsoever; this involved one or a few simple “portion mark” “(C)”(s) that preceded material that was specifically classified as and appeared in the body of the emails within the chain (two other e-mail chains had the same markings but the information in question in those chains was not actually classified and should not have been marked in the body with “(C)”s at all).

That’s right: only 1 e-mail chain with classified information had any classification markings, and it was not properly marked, with no headers and only the “(C)” indicator showing up buried in the body.

Practically no one ever reads every part of every work e-mail. Many people probably don’t fully read even a majority of their work e-mails, as so much content is sent and received and often people have to ignore much of the content and many e-mails entirely for the sake of time; still others will be ignored out of simple prioritizing or would even seen as a nuisance.

The idea that Clinton was careless and irresponsible because she a.) did not know that about 200 e-mails out of tens of thousands were classified but had no classified markings and b.) that she did not know that classified material was in 1 e-mail chain that had 1 or more little “(C)”s buried in e-mail bodies that any person skimming could easily miss is preposterous; in fact, it is possible she did not even read some of these e-mails in question or only read them in part, so considering this, holding her responsible for being aware of every detail of every e-mail sent to her has an added layer of ridiculousness.

None of the people involved were expert specialists on classification, and they and Secretary Clinton relied, as most non-classification-specialists would rely, on proper and clear headings to warn that classified information was at hand and that people sending them knew they were following proper procedure. That was clearly not the case here.

As Comey said during congressional testimony, the absence of the classification markings in all e-mail headers meant that it would be “a reasonable inference” to “immediately [conclude] that those three documents were not classified” even for an “expert at what’s classified and what’s not classified.” In fact, it seems it would be reasonable to assume, as Clinton did, that, in the absence of any other markings, such “(C)”s could at a glance seem to be a selection from an alphabetical list. This directly contradicts Comey’s assertion that Clinton was “extremely careless” with classified information.

4.) Sending vs. Receiving

The FBI report only mentions others sending Clinton material that was classified to begin these exchanges, not the other way around, suggesting that she may not have started any of the e-mail chains with classified material, essentially meaning that people were sending this information to her.

Returning to the issue of labels, taking into account that neither Clinton nor her people sent anything properly marked as classified on this e-mail system would actually mean that Clinton and her people were quite carefully trying not to send anything that was and that they knew was classified, contrary to the popular narrative and the conclusion of Comey, who even told Congress that there was no evidence to suggest that Clinton or her people were aware that any of the material passed through that server was classified.

5.) State Isn’t the FBI

Another important thing to note is that agencies often differ as to both what they classify and on levels of classification. Thus, something would still be considered classified even if the State Department did not feel it needed to be but another agency did, as happened with information in some of Clinton’s e-mails; to expect the head of one agency to be aware of other agencies’ classifications of information that that head’s agency did not feel the need to classify is, indeed, quite unreasonable.

The information we do have from the investigation shows that much of the material that was classified and passed on through unclassified e-mail channels was information that senior leaders needed to have to address pressing issues; thus, using standard secure terminals was impractical, impossible, or both, and skirting around that was the common practice under certain conditions.

The last point makes it clear that official procedures for the dissemination of classified information to senior officials when that information is needed in a timely manner are grossly inadequate and impractical to the extent that they are not followed so that important business may be done when it needs to be done. Comey would have to basically call the entire State Department extremely careless, for the classified content being improperly sent and improperly labeled was the product of unofficial but standard practice before Clinton’s tenure, and though he did note that the State Department was “generally lacking in the kind of care for classified information found elsewhere in the government;” that seems to be decidedly less harsh language (“extremely careless”) than Comey used to describe Clinton’s similar (the same?) behavior, even though State overall was just as big a factor in creating the situation as Clinton, if not more so.

Comey’s viewpoint as an FBI man failed to give proper weight to or understand the unique challenges and responsibilities of a global and very fluid State Department and the distinct culture it has in terms of handling classified information as a result of all that and why this unique approach is necessary. The FBI uses and handles classified information in ways that differ greatly from the State Department, and, if anything, it seems Comey imposed the FBI’s standard on Clinton and the State Department, without considering that the different approaches at State were longstanding necessary workarounds for a problematic system that was a particularly bad fit for the State Department.

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Conclusion: Clinton & Co. Were Careful, Comey Was Careless in His Characterization

Taking into account the aforementioned five points, at least as much an issue as Comey’s July press conference and his handling of what went down late in October and early November 2016 was his understanding of the underlying issues surrounding the whole Clinton e-mail saga.

In the end, no evidence existed that any sensitive information was given to the wrong people or enemies of America or that America’s national security was compromised in any way by Clinton’s use of a private server or the fact that some classified material passed through it. This was less by luck and more because Clinton and her people actually were careful with how they handled the information as they understood it and could have been expected to have understood it in the condition they received it.

If anything, the focus on Clinton herself has been a distraction from the real problem at hand: the lack of reform of a system that few seem to have confidence in or respect for under certain important conditions, a system that is outdated and not taking into account more rapid forms of information dissemination that are common in the twenty-first century and necessary for modern diplomacy. But that has been lost in the conversation. And that itself is a true scandal, one which Comey’s report would have addressed had he been more careful.

© 2018 Brian E. Frydenborg, all rights reserved, permission required for republication, attributed quotations welcome

Brian E. Frydenborg in an American freelance writer, academic, and consultant from the New York City area currently based in Amman, Jordan. The views expressed here necessarily represent only his own, not necessarily the views of any organization with which he has been, or is currently, associated. You can follow and contact him on Twitter: @bfry1981

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