What was the legal rationale under which Hillary Clinton quite intentionally shared classified information with her lawyers, including David Kendall, Cheryl Mills, and Heather Samuelson?
As I outlined in last weekend’s column, we know that Clinton’s e-mails were replete with classified information. According to the FBI, the classified e-mails included intelligence graded at the most closely guarded level: eight top-secret e-mails, and seven designated as “special access program” (SAP) information. (While FBI director James Comey’s presentation understandably left this vague, the likelihood is that seven of the eight top-secret e-mails are SAP.) Under President Bill Clinton’s 1995 executive order, top-secret intelligence is information the mishandling of which “could be expected to cause exceptionally grave damage to the national security.” The SAP designation is added when the unauthorized disclosure of intelligence could compromise critical intelligence-gathering methods or imperil the lives of intelligence sources.
With that as our backdrop, let’s get two things straight.
First, there is no lawyer exception to the federal criminal law that prohibits the transmission of classified information to unauthorized persons. When the government gives an official a security clearance, that does not mean any lawyer whom the official retains derivatively has one, too. The laws that make it a felony to transmit classified information to a person not authorized to have it apply whether the official transmits such information to the technician who services her private e-mail server or to her lawyers.
To take a prominent recent example, Paula Broadwell, General David Petraeus’s mistress, had a security clearance. This fact, however, was unavailing to Petraeus when he was prosecuted for disclosing his highly classified journals to her. Regardless of Broadwell’s holding of a security clearance, the transmission of the information to her was not authorized: She had not been read into the intelligence programs alluded to in the journals and did not have a certified need to know the information.
Well, on what basis did Clinton share top-secret, SAP information with her many lawyers?
It has been reported that Clinton’s principal defense lawyer, David Kendall, has a security clearance and that his firm, Williams and Connolly, has approved facilities for storing classified information, at least at some level of classification. If we assume (as I do) that these things are true, it would still have been illegal for Clinton to transmit top-secret, SAP intelligence to Kendall, and for that information to be stored at the firm.
I also assume (though I have no way of knowing) that, having served as chief of staff to the secretary of state and as a top policymaker at the State Department, Cheryl Mills had a very high-level security clearance from 2009 through 2012 and maintained some grade of security clearance (probably a high one) after she left Foggy Bottom on Clinton’s departure. I also assume that Heather Samuelson had a security clearance and maintained it after leaving the State Department, even though she was a few rungs subordinate to Mills and not nearly as involved in policy matters. Even if these assumptions are correct, that alone would not have made Mills and Samuelson authorized recipients of top-secret, SAP information. In addition to sufficient security clearances, they would have needed to be read into those programs. The government would have to have certified their need to know. That seems unlikely.
Moreover, it certainly would not have been lawful to store such highly classified, restricted-access intelligence on Mills’s and Samuelson’s laptop computers — the ones the Justice Department and the FBI neglected to seize from them by subpoena or search warrant; the ones that Justice obtained in exchange for, astonishingly, a grant of immunity from prosecution and that it agreed the FBI would destroy.
Clinton knowingly and willfully transmitted the classified e-mails stored on her server to her lawyers.
As I’ve previously recounted, FBI director Comey dismissed the significance of Mills’s and Samuelson’s possession of classified information on their laptops because the e-mails they were storing were merely duplicates of what was on Clinton’s private server. It is not enough to say this is no defense; it exemplifies exactly the danger that Congress was targeting in criminalizing the mishandling of classified information. If there is one unauthorized, non-secured copy of a document containing top-secret SAP intelligence, and then two additional copies are made, it becomes three times more likely that the information will be lost, unlawfully disclosed, or stolen by a foreign intelligence service.
That, by the way, is why federal law makes it a felony for people with security clearances to fail to report to the government their knowledge that classified information has been removed from its proper place of custody and has been transmitted or stored elsewhere without authorization. The FBI has revealed that fully 110 of Clinton’s e-mails were classified at the time they were sent or received — not just the eight top-secret (seven SAP) documents but, in addition, numerous documents classified as secret or confidential (as in “(C),” the symbol about which Clinton preposterously claimed ignorance when it showed up in her e-mails).
For argument’s sake, let’s pretend that director Comey is correct that Clinton did not mean for classified information to end up on the non-secure server that she systematically used to conduct business. Let’s even pretend that her gross negligence (or, as Comey put it, her “extreme carelessness”), which resulted in that information’s transmission and storage on the server, should not be prosecuted — notwithstanding that such misconduct perfectly fits the relevant criminal statute.
All that aside, did Clinton, Mills, Samuelson, and Kendall, consistent with their obligations as security-clearance holders, immediately report to the government that they were in possession of classified information that had been removed from its proper place of storage? Recall that the Clinton team began the process of reviewing her e-mails in mid 2014, in anticipation of a formal State Department request that Clinton surrender all e-mails related to her tenure as secretary. So when did the Clinton lawyers report their possession of top-secret, SAP intelligence?
Moreover, rather than simply handing her homebrew server over to the State Department, Hillary Clinton knowingly and willfully transmitted the classified e-mails stored on her server to her lawyers. So, were those lawyers authorized to receive top-secret, SAP information?
If they were not, why hasn’t Mrs. Clinton been indicted?
— Andrew C. McCarthy is a senior policy fellow at the National Review Institute and a contributing editor of National Review.