Agreement Undermines Key Clinton Defense of Personal Email Use

Document signed upon taking office prohibits misuse of ‘marked or unmarked classified information’

Hillary Clinton / AP
November 9, 2015

A nondisclosure agreement signed by Hillary Clinton upon taking office as the nation’s chief diplomat undermines a key defense mounted by her and her allies against allegations that she mishandled classified information.

Clinton has repeatedly defended her use of a private email address instead of an official State Department account by saying that the hundreds of emails containing classified information that were routed through her "homebrew" email server were not marked as classified when they were sent or received.

However, a nondisclosure agreement signed by Clinton upon taking office stipulates that its prohibitions on the mishandling of such material applies to information that contains classified information but is not marked as such.

"As used in this agreement, classified information is marked or unmarked classified information," says the agreement, which was first revealed in a Friday Washington Free Beacon report.

That agreement is one of two signed by Clinton and obtained by the Competitive Enterprise Institute through a request made under the Freedom of Information Act. The Clinton campaign did not respond to a request for comment on the documents.

One of the agreements applies to Sensitive Compartmented Information, an extremely high level of classification. The other concerns all other classified material and contains the provision indicating that such material includes both marked and unmarked information.

Both agreements contain language that placed the onus on Clinton to ascertain whether information in her possession was classified.

"I have been advised that any unauthorized disclosure of classified information by me may constitute a violation, or violations, of United States criminal laws," the classified agreement states.

Since questions began surfacing regarding Clinton’s use of a personal email address throughout her tenure as secretary of state, the Democratic presidential frontrunner has routinely defended her actions by noting the lack of classification markings on emails sent and received at her personal email address.

"I did not receive anything that was marked as classified," Clinton told reporters in July.

Her political allies have made similar defenses.

Correct the Record, a super PAC coordinating directly with the Clinton campaign, frequently notes that Clinton never sent or received information that was "marked classified."

Media Matters for America, a media watchdog group chaired by Correct the Record’s founder, David Brock, has mounted similar defenses.

The agreement suggests that this may not be a compelling defense in the ongoing FBI investigation into Clinton’s use of a private email address and server.

Clinton’s critics have been making that case throughout the investigation.

"Whether the information was marked or not matters little. Because writing classified intelligence information into an unclassified email does not make the information unclassified," wrote a spokesman for John Boehner, the former speaker of the House, in August.

Published under: Hillary Clinton