The FBI investigated and harassed a lawyer for about a year when he informed the government he had a copy of a CIA document with classified information. About three years later, the FBI is investigating the handling of classified information by Hillary Clinton and her private attorney, but her private attorney has not faced similar harassment for possessing classified information.
Journalist David W. Brown, who writes under the pseudonym D.B. Grady, submitted a Freedom of Information Act (FOIA) request on August 7, which aims to uncover details on the discrepancy in treatment. He requested records from the State Department about the “virtually unprecedented” decision to allow a private lawyer to “maintain potentially classified records.” The request was submitted with the support of Kel McClanahan, a Maryland-based lawyer and executive director of National Security Counselors (NSC).
The complaint, filed on September 7, notes the Inspector General advised the intelligence committees in Congress that Kendall “maintained one or more USB flash drives containing copies of all of the Clinton emails.” It is also acknowledged that State Department officials “installed a safe in early July at Kendall’s Williams and Connolly office for the storage of these flash drives.”
The State Department confirmed on August 5 it had made the extraordinary decision to grant Kendall permission to store classified information at his office.
Kendall, who said he has a “Top Secret” security clearance, had copies of Clinton’s emails in December 2014. Government officials did not acknowledge or recognize the emails contained classified information until May 2015. A safe for storing the thumb drives was not provided by the State Department until July 2015. It was not until August 6 that the FBI seized Kendall’s thumb drive and two copies, which were stored in the safe.
To McClanahan, Kendall was granted permission to do something blatantly inconsistent with how most lawyers are treated when they have clients or cases which involve people who are not as powerful and elite as Hillary Clinton.
“It’s crazy how far they will go on the idea that anyone who is not in the government, oh my God, you do not have classified information,” McClanahan said in an interview with Shadowproof. “If we find out you have classified information, we have to grab every copy of it. Destroy every copy of it. When one of the lawyers who does this happens to have a client named Clinton, they say, yeah, you’re good. You want a safe? You can put it into a safe.”
The FBI targets a private lawyer who mostly pursues FOIA lawsuits
McClanahan experienced firsthand how pathological the government can be with classified information in 2012.
As previously reported, McClanahan submitted a FOIA request for the “Table of Contents” for the CIA’s in-house journal, Studies in Intelligence. The CIA released redacted copies on December 5, 2011. A little over a week later, McClanahan compared what he received to a “previously published list of old Studies articles” an unnamed “third party” had obtained through another party and not through FOIA.
McClanahan approached Ryan Parker, a counterpart in the government, for advice on dealing with the fact that he now possessed classified information. He was concerned because he had possessed a security clearance in the past and expected he may need one again in the future. That is when the FBI became interested in him.
Melinda Belvin, an FBI Special Agent, met with McClanahan on January 18, 2012. She insisted McClanahan sign a non-disclosure agreement and then asked him questions he thought were tangential like “what his email address was, what Internet Service Provider (“ISP”) he used, and where it was located.” McClanahan also chose to reveal the identity of the person who shared the “list” containing classified information.
On November 5, 2012, Belvin and her partner showed up to McClanahan’s home unannounced. “We heard that you were willing to cooperate again.” She also asked McClanahan to let the FBI search his office “to see if [he had] any other classified material.” He refused because any search would involve “attorney-client privilege” material, none of which was classified.
The FBI requested McClanahan “give the FBI his computer so it could securely remove the classified information.” McClanahan would not allow the FBI to do this, and Belvin suggested he was being uncooperative. When McClanahan suggested the FBI apply for a warrant to gain access to his computer, which he would probably then move to quash, Belvin indicated this would be the agency’s next action against him.
McClanahan attempted to resolve the matter by volunteering to bring his laptop to the FBI. An FBI agent could watch him open up his laptop and delete the file. This could all be over. But, instead, the FBI opted to have McClanahan attend a meeting with three prosecutors present.
Only after McClanahan showed up with his own lawyer to advise him during this meeting did the FBI agree to do what he suggested and watch him delete the file off his laptop.
How does this fit with other lawsuits over Clinton’s emails?
There are numerous FOIA lawsuits over Clinton’s emails. According to McClanahan, this lawsuit is remarkable because it is one of the only cases seeking records about what happened after the government recognized her emails had classified information.
“There’s lots of controversy over what was in the emails. There’s lots of controversy over whether or not she should have had them in the first place on her own server,” McClanahan said. “There’s also a controversy about what happened after people discovered this” — and this case attempts to figure out what exactly happened.
Edward MacMahon Jr., who represented former CIA officer Jeffrey Sterling who was convicted of a leak and in jail, has suggested in most situations the FBI would have obtained a warrant and immediately seized the thumb drive.
“There are rules that guard how [classified information is] supposed to be … with how information is supposed to be stored and requires that it be handled in what’s called a SCIF mostly — a classified information facility with only limited access — certain people can get into it,” according to MacMahon.
McClanahan explained his computer is not as secure as it would be if locked in a SCIF. It can easily be hacked.
Other double standards for lawyers who don’t represent Hillary Clinton
This alludes to another double standard. The government rarely is willing to accept that a private lawyer will be using a SCIF at an agency, even if they have a security clearance.
“Sometimes a lawyer who needs to write something classified, who knows classified information, asks permission to go to an agency and use one of their SCIFs and one of their classified computers to write the stuff down or to read documents,” McClanahan shared. “In virtually every instance, the government screams bloody murder about how inappropriate it is for an outsider to use the SCIF.”
This is not how the government treated Kendall. In fact, Kendall did not even have to arrange access to a SCIF to do his work. The State Department made the exceptional choice of trusting Kendall to protect the information in his private office.
McClanahan represents Cori Crider of the human rights organization, Reprieve, based in the United Kingdom. Crider filed a FOIA for records that could help her represent Sharif Mobley, a U.S. citizen who was seized by Yemeni security officials, detained, interrogated, and charged with murder. The FBI was involved and sought to cover up its role.
The FBI submitted a classified declaration, which purportedly explained why certain records could not be provided to Crider. McClanahan managed to get a document the FBI refused to release. He asked the court for permission to give the court a copy of this document with classified information, which could refute the FBI’s claims. The court denied McClanahan permission and then accepted the FBI’s claims as truth.
“The government can give a judge classified information, and even if you or the defendant sometimes know classified information that would refute the government’s arguments, you’re not allowed to give it to court because you’re not with the government,” McClanahan stated.
That is, unless you are David Kendall and you represent Hillary Clinton.
McClanahan does not believe the answer is to give all lawyers the same treatment Clinton and her attorney received. He just wants lawyers to be able to access “properly secure places” so they can use classified information when needed in cases.
As it stands, the government will allow a private lawyer representing Hillary Clinton to keep copies of that classified information off government property (until there is a brewing scandal) but will fiercely challenge other private lawyers who have security clearances when they request access to secure facilities for their cases.
“There’s something wrong with this,” McClanahan concluded.