AP Photo Clinton lawyer balked at first effort to delete classified email

Hillary Clinton's personal attorney balked at the State Department's first effort to erase a newly-classified email from the thumb drive containing about 30,000 messages she turned over to her former agency, according to just-released correspondence.

Clinton lawyer David Kendall said deleting the now-secret message could run afoul of promises he previously made to the House Benghazi committee and two inspectors general to preserve electronic copies of all Clinton's work-related message from her tenure as secretary of state.


"I have responded to each preservation request by confirming to the requestor that I would take reasonable steps to preserve the 55,000 pages of former Secretary Clinton's emails in their present electronic form," Kendall wrote to Undersecretary of State for Management Patrick Kennedy on June 15. "I therefore do not believe it would be prudent to delete, as you request, the above-referenced email from the master copies of the [Microsoft Outlook] PST file that we are preserving."

The letters shed more light on the unusual arrangement State eventually set up to allow Kendall to hold classified information in his law office. The set-up — which has been questioned by Senate Republicans and private attorneys who've not received similar approval — involved installing a safe in the office of one of Kendall's colleagues at D.C. law firm Williams and Connolly.

Kendall's rebuff of State's initial request came in response to a May 22 letter from Kennedy that noted a November 2012 email about arrests in Libya possibly related to the Benghazi attacks "which previously had been unclassified, has been classified as 'Secret.'"

Kennedy asked for a CD or DVD copy of all the Clinton emails she turned over on paper late last year, for all paper copies of the Benghazi email now deemed "secret," and for Kendall to erase all digital copies of that email.

"Once you have made the electronic copy of the documents for the Department, please locate any electronic copies of the above-referenced classified document in your possession," Kennedy wrote in bolded text. "If you locate any electronic copies, please delete them. Additionally, once you have done that, please empty your 'Deleted Items' folder."

The letters, filed Wednesday evening in a Freedom of Information Act lawsuit, don't indicate how the standoff over the thumb drive was resolved. However, Kendall has said in other correspondence that in July the State Department installed at his law firm a safe for storage of the thumb drive. The drive was eventually surrendered to the FBI last month.

It now appears that the installation of the safe was a compromise of sorts, intended to safeguard the information while also addressing Kendall's concern about preserving the records.

Asked about the newly-disclosed correspondence, a State Department spokesman pointed to comments at a news briefing last month discussing why Kendall was permitted to retain classified records at his office.

"My understanding is that the counsel for former Secretary Clinton has advised the department that it was subject to separate document preservation requests from the select committee on Benghazi as well as from the inspectors general for the department, the Department of State, and obviously the" intelligence community, spokesman Mark Toner said. Clinton's attorneys "said they have to retain those documents on site. So, what we did in response to that is provided them with instructions regarding how to properly store, physically secure these documents," the spokesman added.

However, soon after the safe was put in place, intelligence community officials began raising concerns that some of the emails in Clinton's account contained "top secret" information. State is disputing that contention, but decided to act more assertively to secure the information, a State official said Thursday.

"Arrangements were made that were adequate to secure information deemed 'secret,'" said the official, who spoke on condition of anonymity. "As the security needs were modified, adjustments needed to be made."

Kendall declined to comment. Clinton's presidential campaign did not respond to requests for comment for this story.

In recent months, Senate Homeland Security Committee Chairman Ron Johnson (R-Wis.) and Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) have publicly questioned how Kendall obtained security clearances and approval for storage of classified information at his law firm's offices.

In addition, journalists filed two Freedom of Information Act lawsuits this month demanding all State's records on the unusual arrangement to keep classified information in a private law office.

The newly-released correspondence also appears to show another possible sign of friction between the Clinton camp and State.

In his June 15 letter to State, Kendall said the Clinton team had turned over all paper copies of the now-secret Benghazi email and he indicated a disk copy of the full-set emails Clinton turned over in December would be provided to State shortly.

That never happened. Instead, the thumb drive went to the FBI. Now, State is trying to secure a copy of the electronic data from the federal law enforcement agency.

"We understand that the Federal Bureau of Investigation (FBI) has obtained the private server used by former Secretary Clinton to operate her personal email account along with one or more related thumb drives," Kennedy wrote to FBI Director James Comey on Monday. "While we do not want to interfere with the FBI's review the Department of State has an interest in preserving its federal records and, therefore, requests the FBI's assistance."

Kennedy's letter asks the FBI for an electronic copy of the roughly 55,000 pages of emails Clinton produced on paper last year, but also asks the FBI to advise if it recovers any more federal records from a server once used to store Clinton's email and recently turned over to the FBI by a Colorado-based tech company that maintained the equipment.

"To the extent the FBI recovers any potential federal records that may have existed on the server at various points in time in the past, we request that you apprise the Department insofar as such records correspond with Secretary Clinton's tenure at the Department of State," Kennedy wrote. "Because of the Department's commitment to preserving its federal records, we also ask that any recoverable media and content be preserved by the FBI so that we can determine how best to proceed."

State has said it is seeking to recover electronic copies of Clinton's emails because of a request from the National Archives and Records Administration that the agency try to obtain copies of the records in their "native" format, which can carry metadata about the routing of messages and when they were read that does not appear in the printed copies. However, the conservative group Judicial Watch — which has a slew of pending Freedom of Information Act lawsuits against State — has also asked the agency to try to obtain any records that might be on the server now held by the FBI.

Last month, a judge ordered State to reach out to the FBI to seek records responsive to a particular FOIA request. Kennedy's latest letter appears to broaden that effort to cover any emails that could be federal records.

An FBI spokeswoman declined to comment on State's latest letter, which effectively escalated the matter to the FBI chief. The FBI is reportedly conducting a review of how classified information ended up in Clinton's email account. The inquiry, apparently begun in response to a referral from the Intelligence Community Inspector General, is not believed to be a criminal investigation.

In the exchange of letters, Kendall also made a request of State: that it return 1,246 emails the agency and the National Archives determined were purely personal in nature and therefore did not constitute federal records. The status of that request remains unclear.

