How the State Department Caved to Hillary Clinton’s Lawyer on Classified Emails

Clinton’s private lawyer got his way when he pushed back after being asked to delete all copies of a classified email—a level of deference an expert calls ‘far from the norm.’

01.15.16 5:01 AM ET

The State Department put up virtually no resistance when Hillary Clinton’s private lawyer requested to keep copies of her emails—even though those emails contained classified information, and even though it was unclear whether the attorney was cleared to see such secrets.

Experts on the handling of classified information tell The Daily Beast that the seemingly chummy arrangement between Clinton’s lawyer and her former State Department aides was “quite unusual.”

Newly released documents, obtained by The Daily Beast in coordination with the James Madison Project under the Freedom of Information Act, include legal correspondence and internal State Department communications about Clinton’s emails. Those documents provide new details about how officials tried to accommodate the former secretary of state and presidential candidate.

In May 2015, a senior State Department official informed Clinton’s lawyer, David Kendall, that government reviewers had found at least one classified email among the messages she sent using a private account, which she used exclusively while in office. That email was only part of the “first tranche” of the review, a State Department employee noted at the time, leaving open the possibility that more classified information would be found, which it was.

Patrick F. Kennedy, the undersecretary of state for management, who had worked under Clinton, asked Kendall to delete all electronic copies of the message in his possession. (Copies were sent to the State Department.)

But Kendall resisted, saying he needed a full record of his own of the 55,000 pages of emails Clinton had sent, in order to respond to information requests from a House committee investigating the 2012 attacks on U.S. officials in Benghazi, Libya, and from the inspectors general of the State Department and the intelligence agencies.

“I therefore do not believe it would be prudent to delete” the email from the “master copies” that Kendall’s firm was maintaining, he wrote.

There is no indication that Kennedy, who oversees physical and information security for the State Department, protested the private lawyer’s position or tried further to persuade Kendall to delete the classified email. The message had been forwarded to Clinton by one of her senior aides, Jacob Sullivan, in November 2012 and contained references to the attack in Benghazi two months earlier.

Rather, within a few days, State Department employees were told to develop a system that would let Kendall keep the emails in a State Department-provided safe at his law firm in Washington, D.C., where he and a partner had access to them.

“The arrangement with Kendall was far from the norm,” Steven Aftergood, an expert on classification and security policy at the Federation of American Scientists, told The Daily Beast. “There are a number of attorneys around who handle clients and cases involving classified information. They are almost never allowed to retain classified material in their office, whether they have a safe or not. Sometimes they are not even allowed to review the classified information, even if they are cleared for it, because an agency will say they don’t have a ‘need to know.’ In any event, the deference shown to Mr. Kendall by the State Department was quite unusual.”

As early as May 2015, Kendall had been made aware that at least one email in Clinton’s archives included classified information. But that didn’t become public knowledge for some time, and when the Clinton campaign became aware of it is unclear.

As late as July 1, Clinton campaign spokeswoman Karen Finney was pushing back against the notion, telling MSNBC that “the assumption that there was classified information being communicated on this BlackBerry I think has been shown in these emails to just be simply untrue.”

Kendall did not respond to requests for comment. Brian Fallon, a Clinton campaign spokesman, noted that Kendall had an obligation to retain the former secretary’s emails in order to respond to various government inquiries. “David Kendall was adhering to a preservation request from the FBI, State Department inspector general, and the House Select Committee on Benghazi,” Fallon told The Daily Beast.

State Department spokesperson John Kirby defended the government’s actions. “The State Department takes the protection of sensitive information seriously,” Kirby told The Daily Beast, noting that Kendal had told the department that her emails were still subject to preservation requests. “Accordingly, the department provided Secretary Clinton’s lawyers with instructions on physically securing the documents while additional options were under discussion.”

But a spokesperson for the committee investigating the Benghazi attacks was unpersuaded that the arrangement was appropriate.

“Perhaps if Secretary Clinton had turned her server over to an independent, neutral third-party, such as the State Department Inspector General or the Archivist of the Unites States as the Benghazi Committee suggested when it first uncovered her unusual email arrangement, perhaps the damage to our national security would be less than it is now,” Jamal Ware, a spokesperson for the committee, told The Daily Beast.

The FBI, not the Benghazi committee, is examining the classification issues related to Clinton’s personal email account.

The arrangement with Kendall has been previously reported. But the documents reveal new details about what was happening inside the State Department as officials moved ahead with the unorthodox setup.

At one point, a State Department lawyer questioned whether Kendall or one of his associates, Katherine Turner, was qualified to receive and maintain classified information.

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“Do any of the lawyers have TS [top secret] clearances,” Sarah Prosser, a legal adviser at State, asked colleagues in an email in August 2015, after more classified material had been found in Clinton’s emails.

It’s not clear from the emails, portions of which are heavily redacted, what the answer was, but Kendall later said he and Turner did have a top secret-level clearance, given to him previously by the State Department as part of his work representing Clinton before the Benghazi committee. There’s no indication of what legal review State undertook to verify that or determine whether the arrangement was acceptable.

Top secret clearances don’t necessarily entitle someone to all classified information. Sen. Chuck Grassley (R-IA) later questioned whether there may have been information in the emails for which Kendall and Turner didn’t have the appropriate clearances, including so-called compartmented information that is derived from some of the most highly classified intelligence-collecting systems in the U.S. government.

The internal State Department correspondence also shows that security officials intended to install a safe and records-keeping system that was suitable only up to the secret level, a lower designation than top secret.

Kendall has long argued, particularly in correspondence with lawmakers, that the emails in his possession were not originally classified and were only deemed so after they were reviewed by government auditors.

One internal email shows that the State Department shared that assessment. “In the first tranche of emails there was one that was subsequently classified,” an executive assistant at State told Gregory Starr, the assistant secretary for diplomatic security, in an email recounting the exchanges between Kennedy and Kendall.

Starr was asked to appoint someone from State’s diplomatic security bureau to go to Kendall’s law firm, Williams & Connolly, “to do a thorough security review to include physical security of area/safe in which document/electronic versions are being kept, who has access to the area/safe, do those individuals have appropriate clearances…”

It’s not clear from the documents what reviews took place.

The question of whether Kendall should be allowed to keep classified email received new scrutiny in July 2015, after investigators found additional Clinton emails that they thought contained classified information.

At the time, Grassley said that at least two emails contained “top secret, sensitive compartmented information.” Investigators found that Clinton’s emails contained information from at least five intelligence agencies.

Kendall gave the thumb drive to the Justice Department on Aug. 6 and gave copies to the FBI.

The internal State Department emails show employees reacting to news that the FBI had taken possession of the thumb drive as well as a server in Clinton’s home in Chappaqua, New York, and that some of the emails were said to contain classified information. On Aug. 11, a State press officer sent around clips of news articles, noting that “this is breaking widely” and providing a brief summary. The nearly 20 recipients included press staff, a senior attorney, and Kennedy.

Prosser, the State Department attorney who’d asked whether Kendall and Turner had proper security clearances, forwarded the email to other attorneys and department security personnel, including some of those she’d been corresponding with about the clearance question.

While State Department officials initially may have felt that non-government lawyers were qualified to maintain classified emails at their office, they changed their tune as investigators began to discover more top secret information among Clinton’s communications.

In late July, as the FBI was preparing to take possession of the thumb drive, Kennedy wrote to lawyers for three of Clinton’s top aides—Sullivan, Philippe Reines, and Huma Abedin—asking them to turn over “all copies of potential federal records” in their clients’ possession.

Kennedy acknowledged that the aides (like Kendall) might need access to the records in order to respond to congressional inquiries and other investigations. The State Department was more than happy to give them access, Kennedy said. They just had to show up at department headquarters during normal business hours and read them there.

Updated 12:00 p.m. Jan. 15 to add comments from The State Department.