WHAT HAPPENED? WHAT COMEY SAID AND WHAT HE DIDN’T SAY

Michael Sean Quinn*

Hillary Clinton is a lawyer. ** (See below)  What did she know? When did she know it? And how did FBI Director, James B. Comey describe it? (Just as a side-note, one should keep in mind that Comey is himself a lawyer, and has a history of being a federal criminal prosecutor–indeed, a distinguished one–and a policy/admin official in the Department of Justice. When he says that a reasonale prosecutor would not take this case, he knows what he is talking about.)

What did she know? About what?*** For sure, she said she did not send or receive classified documents marked such at the time she sent or received them.  Comey says she was mistaken about this to a tiny extent; however, he does not say she was lying. He did not say that all false assertions are lies, and–of course–he would be right about that if he had said it.  He did not say that any of her false assertions, if there are any, were fraudulent. 

He did not denominate her “Crooked Hillary,” or anything of the sort. (** See below.) He did not say that a set of false statements is strong evidence that someone is lying. Had he said this, he would have been right. An over-arching error can generate a number of similar but subordinate errors, and none of them will be lies. 

Here is, roughly, what he did say. First and foremost, he did not say that she would or should be indicted. He implied that no such case could be proved beyond a reasonable doubt; and, of course, that is the requirement of criminal conviction.  

Second, as already indicated, he did not say, or imply, that she received or transmitted any email documents which were marked “Classified” or anything equivalent thereto. But what did he say in this neighborhood?  

In order to understand what he said or implied, it is necessary to have some understanding of what it is for a government document to be CLASSIFIED.  In the context being discussed here, “Classified” is not what I will called a “specific term” as to “secrecy rank.” Thus, there are three categories of Classified documents. Starting at the most sensitive, they are these: (1) Top Secret, followed by (2) Secret, and then (3) Confidential. 

 He said that FBI investigators read all approximately 30,000 emails Hillary provided. 

It also reviewed (1) emails sent to Hillary from the federal agency from whence they came–what he called “the owner” of the documents, or (2) to which they went. The purpose of this was to determine whether a email contained classified information at the time it was sent or received. Notice that this part of the investigation did not have anything to do with how the document was actually marked. The FBI was interested in how it should have been (or might reasonably) have been marked.  It should be noted that electronically created documents or documents attached to electronic documents and then sent can easily be marked “CLASSIFIED” or something of the sort. 

Comey said that of the 30,000 document produced, 110 such documents in 52 email-chains were determined by the “owning agency to contain classified information at the time they were sent or received.” 

The concept “e-mail chain” has a number of meanings. I think that here it probably means a back-and-forth group of emails.  He does not say how many individual emails are to be found in any of the chains.  The phase “email chain” does not tell one how many emails there are, how many were sent by A to B, or how many players there were in the chain.  (“Reply to All” creates many emails. It does not tell us whether there are therefore new chains; one would think it dopes. There might be two emails in a chain; there might be 57; there might be any number in between or any number greater up to just shy of 30,000. (Of course, there cannot be less than 2.)

Of that 110, Comey says that of the 52 chains, 8 of them contained emails classified as “Top Secret” at the time they were sent; 36 chains contained information classified as “Secret” at the time sent;  and 8 contained information classified as “Confidential” at the time sent. (That number of to some extent CLASSIFIED documents comes out to presents on 52 chains.) 

(I would like to know more abut the 52 chains. It seems odd to me that virtually all he classified documents were on such a small number of chains. Then again, I don’t know how many people were on each of those 52 chains. What is they were all the same and there were two people on each of them? The same two–Hillary and one other person. What if there were 1002 on each of the chains? And so forth. Surely the fact that there were so few chains is important somehow.)

Of the 30,000 emails produced, 2000 more were”up-classified,” i.e., classified and as classified, after they were received or sent. (MSQ: It looks like the investigative process, perhaps stimuli of the FBI.) Clearly of the 2000 that were “up-classified,” none of them was marked classified or even actually classified when it was sent or received.****

Comey stated that the FBI found several thousand more work- related email documents that were not produced. How the retention happened, if that what it was, he did not say.  What “several” means he did not say. In any case, the FBI reviewed millions of emails, he said. (I would think that “millions” is more than several thousand. Perhaps what he meant was that it reviewed millions of emails and found several thousand that were relevant.) 

Of those several thousand 3 emails were classified at the time send or received; 1 was Secret, and 2 were Confidential. Thus, he implied that none was Top Secret.  In any case, if my counting is correct, this makes 112 the number of emails that contained classified information at the time they were sent or received. How many chains? (And more about the chains?) 

It is worth noting that 112 is a very small–miniscule–fraction of even 30,000, something like 0.374%– almost exactly 1/3 of 1%, more or less–of 30,000. And this does not tell us how many of those are Confidential only. 

Be sure and notice that the percentage is “point 0.374%,” not 3.74% The 0.374 number does not equate to a cardinal sin, and they do not add up to a bunch of lies, or few of them. At worst there may be a relatively modest number of mistaken assertions.  Comey did not explicitly say this, but one might think that this was a foundation for his recommendation. 

Now, my exposition of the “Comey Presentation” is only part of it. I am not addressing the level of attention paid to the rigors of dealing with documents which are on topics where something might need to be classified.  It is worth observing, however, that Comey was talking about email chains. Thus, for those emails which should have been classified at some level or other, we don’t know what level Comey is talking about, and we don’t know who sent the emails that most obviously should have been treated as should-have-been-classified. Furthermore, we do not know who would have had the responsibility to actually classify it.  

It seems to me that if Hillary barely any blame for what happened regarding the 112, to the extent they were supposed to be classified by someone else, her blame is probably slight. 

Those lawyers who think Comey is a sap might wish to take a look at how statutes define the terms CLASSIFIED, TOP SECRET, SECRET, AND CONFIDENTIAL. The also might wish to take look at how the 1919 statute, under which the prosecution would proceed, deals with copies of electronic items is treated under the statute.   (Of course, one could adopt the view that statutes are not to be interpreted literally–directly from the intentions of the enactors–but evolutionarily, and that this historicism in statutory interpretation applies in criminal cases as well as others.)

He did say there was no evidence was found indicating that any emails were  deliberated deleted in order to conceal classification or some level thereof. This includes the lawyers that went over the group of email and deleted those they regarded as personal.  

On a vaguely related topic, it strikes me as unfair that Hillary should be judged adversely–even in the political realm–without evidence that (1) since she probably knew that a given proposition was true, (2) she  was therefore lying when she said something that presupposed its falsity.  

**My favorite example of this concern the number of servers she had. Apparently she said she used one when in fact she used several. The fact is that she probably did not know how to count the number of servers she used. One can easily believe that one uses just one, when on in fact one uses more than one, and that number need not be just two.

It is also the case that many government officials use private servers to get the public business done, the reason being that government computer systems are said to be slow and clumsy. Interestingly, these propositions are not themselves being discussed in out present political context. Nor are these kinds of questions being asked regarding congressmen, senators, and their staffs.  

**One final side note: one wonders how much Hillary knew about the public law of classified documents. I wonder if she was particularly concerned about documents which might have been classified “Confidential.” 

***One wonders how many such documents would be national security related documents.  Obviously, this has to do, at least, with the many meanings of the word “Confidential,” in this context. Surely there are gradations within the category of “Confidential,” some more sensitive than others. 

To pick and amusing example: a friend of mine joked to me that if a document could have been classified as “Confidential” because it said that Vladimir was having sex with his sister, and if this document were sent along to Hillary as an attachment to an email which said only “Affair of State?”by an unreliable gossip in the international banking division of the Treasury Department perhaps this would not be as great a security “sin” as emailing the location consisting of 20,000 yards of new and experimental atomic weapons to anyone. 

I told my drunken, pot-head now-lawyer friend of 40+ years that he should change the subject. He remembered nothing about the conversation the following day, or so he said.  Some habits never die.  When I outlined to him what was said and offered to go to “a Meeting” with him, he responded that one should remember that the Department of State handles a great many matters which involve foreign affairs but which do not involve particularly significant matters.  

This is the real focus of Comey’s Presentation, I think, and it looks like there might something to complain about here. But that can’t really be done until one knows the rank to which the email was up-graded. And it cannot be evaluated until one knows who should have done the classifying in the first place. 


*Michael Sean Quinn, Ph.D., J.D.
The Law Firm of Michael Sean Quinn 
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In honor of the general topic, not proofed carefully


Originally posted on 07/14/2016 @ 10:07 pm

Michael Sean Quinn, PhD, JD, CPCU, Etc

Michael Sean Quinn, PhD, JD, CPCU, Etc. (530)

One of Texas's leading insurance scholars, Michael Sean Quinn is a past chair of the Insurance Section of the State Bar of Texas and has a broad legal practice.

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