— former president Bill Clinton, election forum for Asian American and Pacific Islander voters, Aug. 12, 2016

At a voter forum co-hosted by the Asian American Journalists Association and nonpartisan civic engagement group APIAVote, Clinton was asked to explain to voters why they should trust Hillary Clinton after her email scandal. In his answer, Clinton summarized two common Democratic talking points about Hillary Clinton’s emails.

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As a public service, we keep a roundup of all Clinton email fact checks at wapo.st/ClintonEmailFacts. Reader suggestions are always welcome. (Full disclosure: This reporter is an officer of AAJA and helped plan this event.)

In August 2015, we gave Two Pinocchios to Clinton’s claims about classified materials in her emails. Her very careful and legalistic phrasing raised suspicions, as she left open the possibility of receiving classified information that was not correctly marked. FBI Director James B. Comey announced the FBI’s findings on July 5, 2016, saying that 110 emails in 52 email chains were found “to contain classified information at the time they were sent or received,” including a “very small number” of emails that bore markings. In light of that information, we updated the rating to Four Pinocchios.

Then, after Comey gave more details during a hearing on July 7, we received countless emails from readers disputing our Four-Pinocchio update given the “little-C” markings. We also received a similar slew of emails after we gave Hillary Clinton Four Pinocchios for statements she made about Comey’s testimony.

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Thus we will use Bill Clinton’s statement as an explanation about why the little-C talking point does not vindicate Hillary Clinton’s previous claims about classified materials.

The Facts

Classified materials

The news of Hillary Clinton’s exclusive use of a private email server as secretary of state broke in March 2015. Since then, she has made several, technically worded claims about classified material in her emails.

First, she said: “I did not email any classified material to anyone on my email. There is no classified material.” (March 10, 2015, initial news conference)

Then she added whether there were emails classified “at the time”: “I am confident that I never sent nor received any information that was classified at the time.” (July 2015)

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Then she started specifying emails “marked” or “designated”: “I’m confident that this process will prove that I never sent nor received any email that was marked classified.” (August 2015) Clinton mostly used this “marked classified” language from then on.

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On July 5, 2016, Comey announced that the FBI would not recommend criminal charges against Clinton for her use of a private email server while secretary of state. However, he said the following about the 30,000 emails that Clinton returned to the State Department:

110 emails in 52 email chains were found “to contain classified information at the time they were sent or received.” That contradicted her claim about information classified “at the time,” and her earlier, general claim that there “is no classified material” in her emails.

Eight of the chains contained information that was “top secret” at the time they were sent. Thirty-six chains contained “secret” information. Eight contained “confidential” information, the lowest classification.

Another 2,000 emails were “up-classified” (emails that have reason to be classified now, even if they were not classified at the time they were sent).

“A very small number of the emails containing classified information bore markings indicating the presence of classified information.” This contradicted Clinton’s claim that she did not send or receive materials “marked” classified.

On July 6, State Department spokesman John Kirby said the department was aware of two emails with a classification marking, and that they were marked classified by mistake. They were call sheets, bearing names of people Clinton planned to call. Kirby said the call sheet markings “were a human error; they didn’t need to be there.” The process is for the secretary to decide to make the call, then change the markings to unclassified, Kirby said. He did not answer why the markings were still there.

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State Department deputy spokesman Mark Toner said in a statement that call sheets are often marked at the “Confidential” level prior to the decision that the secretary of state will make the call. “Often, once it is clear the Secretary intends to make a call, the Department then considers the call sheet SBU [sensitive but unclassified] or unclassified and marks it appropriately. The classification of a call sheet therefore is not necessarily fixed, and staffers in the Secretary’s office who are involved in preparing and finalizing these call sheets understand that. Given this context, it appears the markings in the documents raised by the press were no longer necessary or appropriate at the time they were sent.”

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Per State Department guidelines, documents “generally should be marked conspicuously with their overall classification level” with a banner, along with declassification instructions. “Portion markings” are applied to individual paragraphs within classified documents. A “C” in parentheses indicates confidential information. Generally, that marking “would not alone meet the full requirements under the Department’s classification guide for marking a document as classified,” Toner said.

On July 7, Comey testified for five hours before the House Committee on Oversight and Government Reform. He explained there were three emails that bore the marking “(c)” but did not have a header.

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Spokesmen for Bill Clinton and the Hillary Clinton campaign sent us the following exchange from the hearing, during which Comey said it would be a “reasonable inference” that Clinton may have considered the email unclassified without a header.

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Rep. Matt Cartwright (D-Pa.): According to the manual, if you’re going to classify something, there has to be a header on the document. Right?

Comey: Correct.

Cartwright: Was there a header on the three documents that we’ve discussed today that had the little “c” in the text someplace?

Comey: No. They were three e-mails. The “c” was in the body, in the text, but there was no header on the email or in the text.

Cartwright: So if Secretary Clinton really were an expert at what’s classified and what’s not classified and were following the manual, the absence of a header would tell her immediately that those three documents were not classified. Am I correct in that?

Comey: That would be a reasonable inference.

When asked whether the FBI had consulted with the State Department about the markings, Comey said: “I’m highly confident we consulted with them and got their view on it. I don’t know about what happened yesterday [July 6, when Kirby said the markings were by mistake]. Maybe their view has changed or they found things out that we didn’t know. But I’m highly confident we consulted with them about it.”

Comey did not say that “she had never received any emails marked classified,” as Bill Clinton says. That description is closer to what Rep. Elijah Cummings (D-Md.), the committee’s ranking member, concluded at the end of the hearing: “On the claim that Secretary Clinton sent or received emails that were marked as classified, that claim has now been significantly undercut. Those documents were not classified and those markings were not proper.”

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Still, Comey said Clinton should have known better: “There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation.” He noted that “even if information is not marked ‘classified’ in an e-mail, participants who know or should know that the subject matter is classified are still obligated to protect it.”

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On July 8, Clinton’s language over emails changed again: “I certainly did not believe that I received or sent any material that was classified, and, indeed, any of the documents that have been referred to, I think were not marked, or were marked inaccurately, as has now been clarified.”

Strictly speaking, classification markings do not render information classified, and the absence of classification markings do not render it unclassified, said Steven Aftergood, director of the government secrecy project at the Federation of American Scientists. In fact, a person can share classified information at a cocktail party.

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“If there is no banner or header at the top of a classified email indicating that it is classified, then it is improperly marked. But the lack of such a banner does not in itself render the email unclassified. There might still be classified information in it,” Aftergood said. “The lack of a banner does, however, explain how a recipient might easily consider it unclassified. Isolated portion markings such as ‘(C)’ might easily be overlooked or dismissed as errors, especially if their content seems innocuous.”

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On Aug. 16, the FBI sent a letter to Congress clarifying that “the fact that Secretary Clinton received emails containing ‘(C)’ portion markings is not clear evidence of knowledge or intent.” These three emails were forwarded to Hillary Clinton. The State Department determined that one of the emails contained classified information, the FBI said in the letter.

Comparison to predecessors

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Democrats often describe Clinton’s emails as nothing more than standard operating procedure among previous secretaries of state. This is misleading, and Bill Clinton should know better than to repeat it. Here’s a summary of our findings; for more details, read our Three-Pinocchio fact-checks here and here.

The State Department Office of Inspector General’s May 2016 report found Clinton’s email use should be evaluated in the context of the clearer guidance under her tenure, and the memorandums “specifically discussing the obligation” for officials to use department systems in most circumstances. These standards grew more detailed and sophisticated over time as technology advanced, not because “a different set of rules” were applied since she was expected to run for president, as Bill Clinton says.

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Clinton’s case is not an apples-to-apples comparison to her predecessors or to her successor John Kerry for two major reasons: She was the only one to have operated solely on a private email server, and she had access to more electronic records than her predecessors.

Madeleine Albright never used email for work. Condoleezza Rice did not use personal email for work, and did not use much email in general. John Kerry uses his personal email infrequently, and forwards it to his department email when he does; Clinton never set up a department account. Kerry used his personal email most when he was transitioning from his Senate office to the State Department. It’s misleading to compare Clinton to these three.

That comes down to one predecessor, Colin Powell. He was the only other secretary of state to use a personal email account like Clinton. But Powell’s staff has said the account has been closed “for a number of years,” and that Powell does not have access to it anymore, and he did not retain or make printed copies before his tenure ended in 2005. So he can’t actually turn over any records anymore, like Clinton can.

State Department guidelines for emails were “very fluid” during Powell’s tenure, the inspector general found. It was after Powell left in 2005 that private email guidelines became more specific.

[Update, Sept. 8, 2016: House Democrats released a new email that shed a new light on Clinton’s comparison to one predecessor: Colin Powell. On Jan. 23, 2009, Clinton emailed Powell to ask about the restrictions he had on his BlackBerry, and whether he used it as a personal device. Powell’s answer suggests he set up his private email to evade public records disclosure. Powell explained he had a “personal computer that was hooked up to a private line … so I could communicate with a wide range of friends directly without it going through the State Department servers.”

He continued: “There is a real danger. If it is public that you have a BlackBerry and it it [sic] government and you are using it, government or not, to do business, it may become an official record and subject to the law. … Be very careful. I got around it all by not saying much and not using systems that captured the data.”

This email shows that the comparison to her predecessors may not just be a matter of political spin, but rather rooted in this conversation. Clinton consulted Powell, a predecessor, about his personal email use, and sought advice as to “how to bring along State Dept.” to keep her BlackBerry. However, Clinton went beyond Powell’s advice and set up a private server, which remains unique to Clinton. This new evidence does not warrant a change in rating, which will remain at Three Pinocchios.]

The Pinocchio Test

Bill Clinton is correct that Comey “amended” his statement in the hearing, to provide more details about what the FBI had found. But Comey did not say Hillary Clinton “had never received any emails marked classified.” Two of three emails that had portion markings were call sheets that were improperly marked, and State Department considers the markings no longer necessary or appropriate at the time they were sent. Comey acknowledged that Clinton may not have known what the little-C marking meant.

The whole dispute over the little “c” versus big “C,” portion markings versus header, and so on, is the political equivalent of three-card monte. Democrats, like Bill Clinton, have cherry-picked Comey’s comments from the five-hour hearing to declare Hillary Clinton vindicated. But what they conveniently sweep under the rug are the 110 emails — which were not a part of the 2,000 that were retroactively classified — that were found to “contain classified information at the time they were sent or received.”

Moreover, the diversion to “little-C” markings is an effort to distract the public from the disturbing finding by the FBI that Clinton was “extremely careless” in handling her emails, and should have protected the information whether or not it had a classification marking. And it distracts voters from the fact that for more than a year, Clinton modified her excuse over and over to position herself in a way she can declare she was technically right in some form or another.

Bill Clinton also repeated the Democratic excuse that she used a personal email account just like her predecessor, and that she turned over more email records than her predecessors did. This comparison is a pathetic and misleading attempt to normalize Hillary Clinton’s use of her personal email account and play down the fact that she was the only secretary of state to use a private server. The decision to use a private server is the root of all of the political difficulties concerning her email practices.

Three Pinocchios

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