Chaffetz: “No, because you can’t sit at one computer, and this one is classified and this one is not classified. Somebody had to physically take that and put it on another system. Either upload it or on a thumb drive, retype.”

— exchange on Fox News Channel’s “Tucker Carlson Tonight,” Nov. 15

Hillary Clinton may have lost the presidential election, but Rep. Jason Chaffetz, chairman of the House Oversight Committee, says he’s not done investigating the questions concerning the private email server that she maintained as secretary of state.

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“We have got to get to the truth,” Chaffetz said. “It was never about the political targeting of Hillary Clinton.”

The Fact Checker was struck by his strong suggestion that Clinton or State Department officials deliberately uploaded classified information, possibly using a thumb drive to transfer it from a classified system to an unclassified system. (This is a different situation than the thumb drive used by Clinton’s attorney, David Kendall, to store copies of the emails.) That’s a pretty serious allegation. What’s the basis for that claim?

The Facts

In July, FBI Director James B. Comey announced he would not recommend prosecution of Clinton because, although her actions were “extremely careless,” the FBI “did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information.”

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Out of more than 30,000 emails Clinton returned to the State Department, the FBI found 110 messages in 52 email chains that contained classified information at the time they were sent or received. “Eight of those chains contained information that was Top Secret at the time they were sent; 36 chains contained Secret information at the time; and eight contained Confidential information, which is the lowest level of classification,” Comey said.

An additional 2,000 were “upclassified” to make them confidential and thus redacted from public view before release. That’s because the State Department, to the consternation of other government agencies, had a culture of more freely exchanging sensitive information over an unclassified system, with the expectation that sections could be redacted from public view if the emails were released under the Freedom of Information Act. Some of the emails were deemed classified at the time they were sent, but were downgraded during the investigation.

Three more emails with classified information (one secret, two confidential) were recovered in other ways by the FBI. So that’s a total of 113 emails. Of those, three had two classified markings, although it later turned out two were marked by mistake.

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(Note: The FBI report on the matter released later gave different numbers. The report said 193 emails in 81 email chains contained classified information, with eight email chains classified as top secret, 37 secret and 36 confidential. See pages 20-21.)

Comey’s statement did not indicate any deliberate transfer of classified information from one system to another; instead, he stressed that Clinton and her aides did not engage in a willful mishandling of classified information but instead should have known that an “unclassified system was no place for that conversation.”

Chaffetz’s staff initially pointed us to an FBI summary of an interview, known as a 302, of a technology specialist working for the Office of Inspector General (OIG) that was released after the FBI declined to pursue prosecution of Clinton. (See page 96.) During an interview, the specialist said a search of the email data turned up about 50 “call sheets” to lay out the talking points for Clinton’s conversations with foreign officials, labeled “Secret” or “NOFORN.” He speculated that they had been moved from the classified system to the unclassified system.

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Presumably, the FBI already investigated this and determined it was not worth pursuing. The State Department says this is based on a misunderstanding.

“It is not possible to conclude from this 302 that any of the documents the OIG specialist described were actually classified,” State Department spokesman John Kirby said. “In fact, there are reasons to think they may not have been.”

First, he noted, the 302 itself says that the text of the documents did not include classification markings. “That is how we signal that something is classified at the department, not through invisible metadata,” he said. Second, the 302 indicates that these were call sheets.

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“Generally speaking, there is a standard process for developing call sheets for the secretary of state,” Kirby said. “Call sheets are often marked classified prior to the decision that the secretary will make the call. Often, once it is clear the secretary intends to make a call, the department then considers the call sheet SBU or unclassified and marks it appropriately.”

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Moreover, call sheets also often include unclassified paragraphs or talking points that can be segregated from classified portions of the document. Thus the classification of a call sheet is not necessarily fixed.

Kirby added that “it is not uncommon to transfer documents drafted on our classified network to the unclassified network” — and that many documents drafted on the classified network are actually unclassified. “Just because a document is transferred from the classified to the unclassified network doesn’t necessarily mean that the original document was classified,” he said.

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Call sheets generally are pretty low-level classified documents. Still, seven emails were labeled top secret/special access program (SAP), which signifies material that is considered highly classified. But there’s no evidence that these were deliberately transferred from the classified system to the unclassified system via a thumb drive. According to the FBI’s full report on the matter, all of these emails were drafted in the State Department’s unclassified system and were sent to Jake Sullivan, Clinton’s deputy chief of staff. He then forwarded them to Clinton.

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In the interviews, State Department officials said they did not think the material was classified. “It was common practice at State to carefully word e-mails on unclassified networks so as to avoid sensitive details or ‘talk around’ classified information,” the report said. (See pages 24-25.)

The FBI asked Sullivan to review approximately 14 emails he sent or received on unclassified systems that were later determined to contain classified information up to the top secret/SAP level. “With respect to the SAP, Sullivan stated that it was discussed on unclassified systems due to the operational tempo at that time, and State employees attempted to talk around classified information,” the report said. Sullivan also noted that for some of the emails, the information may have already appeared in news reports. “When forwarding e-mails, Sullivan relied on the judgment of the individuals who sent the e-mails to him to ensure that the e-mails did not contain classified information,” the report said.

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It’s important to recall that these emails did not have markings indicating the presence of classified information. State Department officials thought they had drafted emails that, during an urgent situation, allowed them to discuss a secret program in a way that avoided the disclosure of classified information. When intelligence agencies reviewed the emails after the Clinton server was revealed, they determined that was not the case.

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An Oversight Committee aide responded: “While it is likely the vast majority of classified information was retyped, as Chairman Chaffetz pointed out, it is an open question as to whether any of the material was uploaded. Regardless, it is clear that highly classified information was transferred from a classified setting to an unclassified setting.”

(For more fact checks on Clinton’s emails, go here.)

The Pinocchio Test

Chaffetz is obviously free to conduct whatever investigation he wants, but he shouldn’t insinuate, through speculation about thumb drives, that the State Department engaged in the deliberate transfer of classified information from classified to unclassified systems. The extensive information released by the FBI on its investigation, including its report and summaries of interviews, provides virtually no support for this assertion, made in a nationally televised interview.

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Indeed, a key finding of the FBI was that State Department officials did not intentionally or willfully mishandle classified information. The most sensitive information was drafted on the unclassified system and then forwarded to Clinton.

Chaffetz believes the Clinton email case was “one of the biggest security breaches ever.” That’s a matter of opinion. (Let’s recall that the State Department in 2000 lost a laptop containing highly sensitive information and discovered an eavesdropping device in one of its conference rooms, resulting in the expulsion of a Russian diplomat.) But there’s little reason to hype the possible “migration” of data from classified systems. We’ll keep an eye on what the investigation uncovers, but based on available evidence, Chaffetz earns Three Pinocchios.

Three Pinocchios

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