In The Arena The Real Clinton Email Scandal: Our Ridiculous Classification Rules

Matthew Miller is a partner at Vianovo and the former Director of the Office of Public Affairs at the Justice Department. You can find him on Twitter at @matthewamiller.

Hillary Clinton’s use of a personal email account for official State Department business was a mistake, but the revelation that Clinton’s emails contain upwards of 305 messages with potentially “classified” information is far less scandalous than the headlines make it appear. The most troubling part of this story involves the rules governing official secrets, not Clinton’s conduct as Secretary of State.

As a former Department of Justice official who regularly dealt with classified information, I am glad a team of officials from the FBI, the intelligence community and other agencies is not currently reviewing every email I sent and received while I worked in government. If they did, they would likely find arguably classified information that was transmitted over unclassified networks—and the same thing is undoubtedly true for other senior officials at the White House, the State Department and other top national security agencies.


The sheer volume of information now considered classified, as well as the extreme, and often absurd, interpretations by intelligence officials about what is and is not classified, make it nearly impossible for officials charged with operating in both the classified and unclassified worlds to do so without ever mixing the two.

From the intelligence community’s perspective, the border between these two worlds looks like a brick wall. Many intelligence officials spend their entire day working inside so-called Sensitive Compartmented Information Facilities, designed to be impenetrable to eavesdropping, and using only separate, classified email systems to communicate with others in government. In these hermetically sealed environments, there is no need to ever sort through the differences between classified and unclassified information.

But for officials charged with dealing with the public, the media and other governments, the lines become much harder to draw.

The Associated Press reported last week that one of the Clinton emails that intelligence officials claim is classified—something the State Department disputes—involved a discussion of drones operating in Pakistan, a fact that is still considered top secret even though it has been openly discussed by government officials on numerous occasions.

The continued top secret classification of drone strikes is silly enough on its own, but the way in which intelligence officials would judge any email conversation about them is even more farcical. According to the AP, the email exchange in question began with an aide to Clinton circulating a news story about the drone program. Obviously, circulating a news story cannot be considered disseminating classified information. But if, for example, that story reported on a successful strike against an Al Qaeda official, and another official responded by writing “great news,” that email would be considered classified because it confirms the existence of the drone program—yes, the same drone program that officials openly discuss with reporters on a near daily basis.

Intelligence officials also often argue that information is classified even when the same information can be gleaned from unclassified sources. While still at the Justice Department, I once wrote a draft press release that a Department attorney claimed contained multiple pieces of classified information. He accused me of a grave violation of the rules for handling classified information, instructed me to destroy all copies and threatened to refer me for investigation. But I had drawn the release from unclassified sources and had never even been briefed on this particular underlying secret—how could I possibly have exposed something of which I wasn’t aware?

Ironically, by implicitly confirming the existence of this top secret information to me, the Department attorney had himself violated the rules governing sharing classified information, since I hadn’t yet been authorized to be briefed on this program.

Secretary Clinton has now turned her server and a thumb drive containing all of her government-related emails over to the Justice Department, which is reportedly reviewing them to ensure that classified information is properly protected. That is an appropriate step for them to take, and one that was a natural follow up to the referral from the inspectors general for the State Department and the intelligence community.

But if Justice were to expand this review, it would establish a very troubling precedent for future cases. As ill advised as Secretary Clinton’s decision to operate a private server was, it has nothing to do with the potential classification problems that the intelligence community has raised. The exact same issue would have arisen had she been using an unclassified State Department email account, which, like her personal account, would not have been authorized to receive classified information. Furthermore, the only reason the interagency government committee began reviewing her emails for classification in the first place is because Clinton herself asked that they be released to the public.

If the Justice Department were to broaden this investigation, it would be doing so in the middle of a campaign, at the behest of partisan members of Congress and opposing candidates, with no indication of predicate potential criminal wrongdoing. In this context, it could not credibly investigate Secretary Clinton’s email account without opening similar investigations across the government and exposing thousands of officials to baseless charges of wrongdoing.

Protection of genuine classified material is without a doubt important, and the government has the responsibility to ensure it does not fall into the wrong hands. But with that no longer an issue in this case, the most important step it could take would be to finally begin implementing long overdue reforms to the classification process. That would have a far more lasting impact than an arbitrary, politically motivated fishing expedition.