Hillary Clinton’s private server held 22 e-mails that included top-secret information and are being withheld from release, the State Department disclosed.

The department on Friday is releasing 1,000 pages of documents culled from the personal e-mail system that Clinton used while secretary of state. The revelation that 37 pages of Clinton’s communications are being held back because they contained classified information raises the legal and political stakes for the Democratic presidential candidate three days before the Iowa caucuses.

“I am not going to speak to the content of this e-mail traffic,” State Department spokesman John Kirby said at a briefing Friday in Washington. While the information wasn’t marked as classified when it was sent, the e-mails are being withheld “at the request of the intelligence community because they contain a category of top secret information.”

A spokesman for Clinton, who will face the first votes in the presidential race
in Iowa Feb. 1, said she opposed withholding the e-mails, blaming the State Department’s decision on “over-classification run amok.”

Campaign Response

“After a process that has been dominated by bureaucratic infighting that has
too often played out in public view, the loudest and leakiest participants in
this interagency dispute have now prevailed in blocking any release of these
e-mails,”’ Brian Fallon said in a statement.

Even though the information in the e-mails wasn’t marked classified when it was sent, Kirby said the question of whether it should have been “is being handled separately by the State Department.”

Among the agencies looking into Clinton’s e-mail is the FBI, which is investigating how and why classified information ended up on Clinton’s server.

Classification Timing

If investigators determine that Clinton’s e-mails contain classified information, she potentially could be charged with a felony, said Steven H. Levin, a defense lawyer and former federal prosecutor who has represented those accused of mishandling classified material.

However, Levin said, the bar to bringing such charges is high: Federal prosecutors would have to prove that Clinton knew she was discussing classified information, even if it wasn’t marked as classified at the time. "It’s not enough to prove she was negligent," Levin said. "You have to prove she knew it was classified and was reckless in how she handled it. They have to prove knowledge. That is a high bar."

A key element is determining when the information was classified, Levin said. If Clinton was discussing information that was later classified, she didn’t break the law, he said.

"Timing is everything," he said. "If it wasn’t classified at the time, she can’t be charged. If it was classified at the time, then the question is whether she knew it was."

If Clinton knew the information should have been classified but it hadn’t yet been deemed to be a government secret, she also can’t be prosecuted.

Legal Cases

Levin said he has represented clients who were accused of far less, including a Defense Department employee who came to the attention of federal investigators for working on classified information at home on his work laptop. Federal prosecutors ultimately decided not to charge the man after he agreed to quit his job and have his security clearance revoked, Levin said.

Clinton and her staff could be in danger of having their security clearances rescinded, Levin said. "If we are treating people equally, then yes, she may have hers revoked," he said.

Clinton’s lawyer, David Kendall, didn’t immediately return requests for comment.

Clinton used a private e-mail server for her government communications during her time as secretary of state from 2009 to 2013. The Federal Bureau of Investigation has been looking into the security of that set-up, and Clinton has faced criticism from Republicans and some fellow Democrats over her use of a server outside the regular State Department system.

Kirby also disclosed Friday that 18 e-mails between Clinton and President Barack Obama are being withheld to protect communications between the president and his Cabinet. None have been determined to be classified, he said. Those may be released at a later time under the Presidential Records Act.

Republican Attacks

Republican presidential candidates have been pounding Clinton over the e-mails, arguing that she broke the law. Senator Marco Rubio of Florida said at a debate of the party’s candidates on Thursday that if Clinton is elected, “one of her first acts as president may very well be to pardon herself.”

“We need a President who can be trusted to keep our secrets secret,” Jeb Bush, the former Florida governor, wrote Friday on Twitter. “Obviously that’s not @HillaryClinton.”

Clinton’s rival for the Democratic nomination, Vermont Senator Bernie Sanders, said in a statement that “there is a legal process in place which should proceed and not be politicized.” Sanders, who is running neck-and-neck with Clinton in Iowa, said in a Democratic debate that the public was “sick” of hearing about the e-mails.

In an October poll by Bloomberg Politics and the Des Moines Register, 81 percent of likely Iowa Democratic caucus-goers said they weren’t bothered by the potential that Clinton has not been “forthcoming about her home e-mail server.”

Clinton’s e-mail is being released in response to a lawsuit under the Freedom of Information Act by Vice magazine journalist Jason Leopold. Friday was supposed to be the final release, but the State Department didn’t meet the deadline and is releasing only 1,000 e-mails on Friday.

"Nothing I’ve seen explains what has happened to the other 1,118 pages that have already been processed but aren’t being released today as scheduled," Leopold’s attorney, Ryan James, said in an interview. “Mr. Leopold, and the voting public, are entitled to know why aren’t these pages being released.”

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