Hillary Knew Good and Well Those Emails Would Become Classified

Image Credit: JStone/Shutterstock.com
Image Credit: JStone/Shutterstock.com

Let me bore you guys with a little bit of lawyer talk. Sorry to phrase stuff this way, but I think it’s important because the concept of confidentiality, work product, and privilege are intimately familiar to a lawyer, and Hillary Clinton was a relatively successful one for decades.

The law has a concept called “attorney work product” which is recognized in the Federal system and in every state jurisdiction that I know of. Attorney work product basically works like this: the thoughts, mental impressions, and strategy of an attorney are generally considered to be private and legally protected from disclosure.

Here’s how it works in practice. Technically, only communications between an attorney and a client, for the purpose of furthering the representation, are actually protected by the more well known attorney client privilege. An attorney’s own thoughts, notes, mental impressions, and strategies that he might write down, email to his colleagues or co counsel, or consider, are not attorney client communications and thus not protected by attorney client privilege, generally speaking (I realize that I’m oversimplifying to some degree, so I ask the lawyers who are reading this to suffocate their inner pedant for a moment so that I can finish this post without it reaching textbook length).

However, the law recognizes the broader attorney work product privilege to reflect the fact that an attorney’s internal mental impressions are important secrets within the attorney’s trade. Here is one example that comes up – let’s suppose a junior associate forwards a non-privileged document to a senior partner via email with a note that indicates the associate’s thoughts about the document – something along the lines of: “Thought you might want to see this, might help us prove damages.” The partner replies back: “Hmm, that is interesting, let’s discuss at lunch later.”

Later, the question inevitably arises: is this email communication privileged? Generally, (AGAIN, PLEASE TELL YOUR INNER PEDANT TO SHUT UP FOR A MINUTE, I SAID GENERALLY) while it’s an open question as to whether the emails are attorney client privilege, and the document itself does not become privileged just by its inclusion in an arguably privileged email, at the very least the portions of the email that contain the attorneys’ thoughts (including just the fact that the senior partner has read the document and finds it interesting or relevant) are at the very least attorney work product and thus are not generally not subject to production.

Okay, so why does this matter, and why does it matter that Hillary Clinton is doubtless intimately familiar with these concepts?

Well, see, it matters because, as it is revealed that more and more emails made their way through Hillary Clinton’s insecure personal server that were later marked classified, Team Hillary has become determined to hang their hat on the fact that Hillary did not receive nor send any material that was marked classified at the time it was sent/received.

While this may or may not end up being true, technically speaking, it ignores the fact that Hillary knew good and well that a significant chunk of the emails she sent and received would inevitably be labeled classified later, simply because of the fact that they contained the private thoughts of the Secretary of State on matters of national security.

Look, it is no secret that foreign governments for years have considered State Department communications to be the among the ripest fields for espionage. The inner thoughts of State Department personnel would be of extraordinary value to any number of foreign agents during the course of discussions and negotiations pertaining to matters both military and non-military.

Knowing what the Secretary of State herself was saying when she thought no one else was listening would represent the coup de grâce of all inside information. And therefore, of course communications Hillary was involved in would inevitably become classified simply because they contained her thoughts and impressions of things, even if those things themselves were not classified.

Listen, anyone who has spent any time at all in the legal field learns by habit to become excessively paranoid about these matters. Inadvertently disclosing to the other side material that is either privileged or protected by attorney work product is one of the most embarrassing and damaging things that can happen to an attorney. If it occurs, you can face bar disciplinary action, malpractice suits, all number of horrible consequences, depending on how egregious the error is and how mad your client gets about it.

So, if you want to stay licensed and in business, you develop a habit of being careful who you talk about various things with, and you start thinking continuously about what you are saying that might be considered privileged or work product and whether you are waiving it by discussing it with someone you shouldn’t. Now, if we are to believe Hillary’s own press, she was a very good and competent attorney, so it just simply beggars the imagination that she lacked the foresight to understand that by communicating with people through this private server, she would be creating classified information just by communicating, even if absolutely no classified documents were ever sent to or by her.

And yet, that is exactly what her camp asks us to believe with this latest absurd defense of Hillary’s email practices. Sure, she may not have sent or received information that was marked classified at the time, but she knew good and well that they would become so in the future. And she did not care. Her personal privacy was more important than the national interest.