A top former Justice Department privacy officer on Wednesday called it “extremely unlikely” that a senior U.S. diplomat would normally discuss the nuances of classification levels of one of Hillary Clinton’s emails about Benghazi with the deputy assistant director of the FBI’s international operations bureau.
Patrick Kennedy, the State Department’s under secretary of management, was accused this week of entertaining a quid pro quo with the FBI in May 2015 regarding the classification of an email about the 2012 attack on a diplomatic compound in northern Libya. In exchange for the FBI keeping the email unclassified, the State Department would agree to host more FBI agents in Iraq, FBI documents suggested.
Ultimately, the FBI did not accept Kennedy’s proposal and maintained that the email should be classified. That classification decision was significant because the FBI had not yet launched its high-profile criminal investigation into the mishandling of classified information by Clinton and her aides. Had no classified information been found on Clinton’s homebrew server, there would have likely been no criminal investigation of the Democratic presidential nominee.
Both the FBI and the State Department have denied any quid pro quo. But the Justice Department’s former information and privacy director, Dan Metcalfe, on Wednesday said it was “extremely unlikely” that the Kennedy would seek advice on this particular classification issue from now-retired FBI agent Brian McCauley, who at the time was the bureau’s deputy assistant director for international operations.
Instead, Metcalfe suggested, Kennedy likely called knowing the FBI wanted more agents in Iraq, but had been stymied in the past.
“Far more likely is that it was attempted exploitation of the fact that Mr. McCauley had been unable to get his phone calls returned on his request for Mr. Kennedy’s approval of additional FBI personnel in Iraq,” Metcalfe told Foreign Policy.
Kennedy has denied the two issues were linked in any way. “There was no quid pro quo, nor was there any bargaining,” he said Tuesday. He said he merely wanted to “better understand a proposal the FBI made to upgrade” the classification of one of Clinton’s emails before it was publicly released.
Other former Justice officials and FOIA experts also questioned why Kennedy would reach out to McCauley, of all people, to “better understand” the bureau’s views on the specific classification decision.
“There is no way that Mr. Kennedy contacted the Deputy Assistant Director of International Operations to understand a proposed FBI classification decision, which would be made by an entirely different component of the FBI,” said Kel McClanahan, the executive director of National Security Counselors, an organization that specializes in litigation and FOIA requests to acquire government documents related to national security.
“The only reason Mr. Kennedy, who would be very familiar with this office and its area of expertise, would contact Mr. McCauley, would be to discuss international operations, in this case, the placement of FBI agents in Baghdad.”
Bradley Moss, a Washington lawyer specializing in national security and disclosure law, added that the “explanation just doesn’t make sense.”
“McCauley would not be the logical person for Kennedy to approach on the classification matter at all, unless he erroneously thought McCauley (as an international operations guy) would have some understanding of FBI’s classification justification for an email implicating Benghazi,” he told FP in an email.
State Department deputy spokesman Mark Toner disputed that theory and said McCauley did have relevant expertise on classification issues related to the Clinton email.
“Because the subject matter of the email in question was related to arrests abroad, it made total sense for Under Secretary Kennedy to reach out to the Deputy Assistant Director for International Operations who would have had the subject matter expertise as to whether this email needed to be classified,” said Toner.
But in McCauley’s account about the conversation, reported Tuesday in Politico, Kennedy was not seeking the agent’s guidance on a classification issue. Rather, he wanted McCauley to influence his colleagues that were in a position to make the classification decision.
“I had no idea what the task was, what [Kennedy] was seeking,” McCauley said. “I didn’t even know what he was asking for.”
McCauley said that it was only when he followed up with a colleague who worked in the bureau’s records division that he learned that the classification involved Benghazi.
Other transparency advocates give Kennedy the benefit of the doubt.
“It’s not unusual to have informal interagency contact to address FOIA issues, and it appears that’s what happened here,” said Norm Eisen, a former Obama administration official and cofounder of Citizens for Responsibility and Ethics in Washington, a government watchdog group.
Others said that Kennedy’s actions don’t point to a specific fire, but say there’s an awful lot of smoke.
“If Pat Kennedy had a long-existing professional relationship with Brian McCauley there might be nothing unusual or suspicious about reaching out to him on a classification issue,” said Anne Weismann, who worked on government information litigation at the Justice Department from 1995 to 2002.
“I am troubled by the reporting suggesting Kennedy reached out to multiple FBI officials on reclassifying an email,” she added. “It would be unusual if Kennedy was shopping the email around the Bureau and his request to have it declassified.”
Republicans have seized on the quid pro quo claims in recent days with GOP presidential candidate Donald Trump demanding Kennedy be fired. On Monday, the Republican chairmen of the House Oversight and Intelligence committees also called on Kennedy to resign. “Those who receive classified intelligence should not barter in it – that is reckless behavior with our nation’s secrets,” the chairmen said in a statement.
While Republicans have accused Kennedy of trying to protect Clinton, Kennedy himself also stood to gain by avoiding an investigation into her private email server. As the under secretary of management, Kennedy oversees both records management and the IT department at the State Department.
He previously faced criticism from Congress for not standing in Clinton’s way when she decided to use a private email server during her time in office, an arrangement that risked exposing classified secrets to foreign adversaries and concealing her correspondence from legitimate public disclosure requests.
Though interagency contacts are frequent for records issues, Kennedy’s broad portfolio would generally preclude him from getting involved in mundane questions of security classification, experts said.
“If it was simply a FOIA issue, there is no reason for Mr. Kennedy to get involved at all unless he is attempting to cut a deal,” said McClanahan.
“Yes, the FOIA office is under his authority, but so is HR, Diplomatic Security, IT, and numerous other offices. Do you really expect him to personally contact someone at the FBI to inquire about a particular interagency detail or database issue?”
This story has been updated.