The Justice Department is reviving investigations involving Hillary Clinton’s emails and the degree to which the State Department during Mrs. Clinton’s tenure as secretary was put in the service of the Clinton Foundation. Good. Indeed, it is long overdue. It underscores a point we’ve tried to make repeatedly here: You don’t need a special counsel for this kind of thing; such investigations are what we have a Justice Department full of career prosecutors for. The perverse institution of the independent prosecutor should be shunned whenever possible — and its jurisdiction tightly confined in the rare necessary case.
All that said, investigations involving the mishandling of classified information by officials with privileged access to it will go nowhere unless the Justice Department restores the rule of law: investigators and prosecutors applying congressional statutes, not rewriting them as dictated by their political masters.
As we have recounted (see, e.g., here), in April 2016, when the Clinton-emails investigation was in full swing but before it was anywhere close to completion, President Obama gave a nationally televised interview in which he made clear that he did not want criminal charges brought against his former secretary of state — and the already certain Democratic candidate to succeed him. Obama made two duplicitous points: Mrs. Clinton 1) had exhibited “carelessness,” but nothing worse, by using a private, non-secure email system to conduct State Department business, and 2) had not intended to endanger American national security when she stored and transmitted classified information on this system.
The FBI has taken the heat because it ultimately applied these disingenuous guidelines publicly and without apology. But it was the political leadership of the executive branch that called the tune — which seems like news only because the media’s revulsion over presidential attempts to influence criminal investigations would await Donald Trump’s inauguration.
Obama’s first point led to one of the great head-fakes in modern law-enforcement history — one that reverberates to this day. Using his bully pulpit, the president framed the Clinton case as one of negligence. The portrayal stuck: Incessantly, the Justice Department, the media, and eventually James Comey, then-director of the FBI, addressed the case in terms of Mrs. Clinton’s purported carelessness — a hardworking public official’s regrettable but forgivable inattention to detail.
Even now, critics of Clinton and the FBI are in a lather over reports that, as Comey’s team drafted his remarks exonerating Clinton (notwithstanding that key witnesses, including Clinton herself, had not been interviewed), agent Peter Strzok changed the term “grossly negligent” to “extremely careless.” Substantively, these terms are indistinguishable. The emendation is said to be critical, though, because the statute applicable to Clinton’s conduct criminalizes “gross negligence.” If Comey had said the words “grossly negligent,” so the story goes, it would be the equivalent of pronouncing Clinton guilty.
That is, it would be impossible to rationalize not charging her because, after all, this case was all about negligence.
But it wasn’t. Never.
The principal felony offense in Mrs. Clinton’s case is the willful retention or transmission of classified information.
This was a straightforward case of criminal intent. Negligence was the fallback position — for a prosecutor, an “even if” theory, as in: “Even if you’re not convinced by our overwhelming evidence of Clinton’s willfully illegal retention and transmission of classified information, you can still comfortably find her guilty if you conclude that she was grossly negligent — which, as the judge will tell you in his instructions, simply means ‘extremely careless.’”
Mrs. Clinton’s criminal intent was so clear that its obfuscation also required Obama’s second point: Mrs. Clinton’s lack of intent to imperil the United States. Director Comey hammered his boss’s legerdemain again and again. And why not? After all, it was true — Clinton unquestionably had no desire to endanger our country. It’s always good to go with the truth . . . especially if you have the luxury of a Democrat-smitten media that won’t ask whether the truth you’ve highlighted is relevant to the matter under investigation.
Obama is a Harvard-trained lawyer. What he and those who echoed him executed was a not uncommon defense-attorney stratagem: The conflation of motive and criminal intent, two significantly distinct concepts. Motive is the reason why we do something; intent is our state of awareness in doing it — the understanding that, regardless of why we are doing something, we know we are doing it and we are doing it on purpose. To prove someone guilty of a crime, no motive need be established, but intent must always be proved beyond a reasonable doubt.
The Espionage Act (section 793 of the federal penal code) prescribes a sliding scale of classified-information offenses, from the most to the least serious. Let’s put aside the red herring of the Clinton emails case, gross negligence — at subsection (f), the bottom of the scale.
The principal felony offense in Mrs. Clinton’s case is the willful retention or transmission of classified information — subsections (d) and (e) of the act. To prove this offense, the prosecutor must prove that the official 1) had possession of the information, 2) had “reason to believe [it] could be used to the injury of the United States or to the advantage of any foreign nation,” 3) transmitted it to an unauthorized person or place, or failed to deliver it on demand to an authorized government agency, and 4) acted willfully, which means acting intentionally and with an understanding that one’s actions are wrongful.
Two things to notice. First, there is no requirement to prove an intent to harm the United States. The statute calls only for an awareness that the information could be used to hurt the U.S. or benefit a foreign nation. To be guilty, the official does not need to want that to happen; she must merely be aware that it could happen. Of course, every government official who is privileged to hold a security clearance is well aware of this. Making the official aware of it and having the official expressly acknowledge her awareness are essential parts of the indoctrination that is a condition of getting the clearance. And thus every government official with a security clearance knows it is wrongful to transfer classified information to a person not authorized to have it or to a place where its storage is not authorized.
Second, you may be saying to yourself: “But ‘intent to harm the United States’ is significant, so it should be part of a classified-information offense.” That’s right, and that’s why it is a part of a classified-information offense — it just happens not to be the offense we’re talking about in Mrs. Clinton’s case.
If an official illegally transmits classified information “with an intent or reason to believe that the information is to be used to the injury of the United States,” then that official commits the more serious felony offense prescribed at the top of the Espionage Act’s scale — subsection (a). If someone had suggested charging Mrs. Clinton with this treasonous offense, then she, President Obama, and Director Comey would have been quite right to stress that she had no such intent. But no one suggested that. Rather, it was urged that she had transmitted classified information on purpose, but not with intent to do the country harm. That is less heinous than the treasonous offense. But it is still egregious. It is a crime that puts the lives of intelligence sources and the effectiveness of life-saving intelligence operations at risk.
That Clinton did not intend that any harm come to the United States does not make her innocent of willfully transmitting classified information to unauthorized persons or places.
Moreover, it is a black-letter principle that a person’s innocence of Crime A is inadmissible to prove that the person has not committed Crime B. For example, the fact that I have not personally sold drugs has no bearing on whether I laundered drug money. And the fact that Mrs. Clinton did not intend that any harm come to the United States does not make her innocent of willfully transmitting classified information to unauthorized persons or places, or of retaining it when she left the government and when the State Department finally requested that she surrender the government records in her possession.
Motive is different from intent, but it is easy even for lawyers to confound the two. Unless a criminal statute explicitly makes motive a part of the offense, there is no requirement that it be proved. Yet we can’t say that motive is completely irrelevant because the prosecutor is always permitted to offer motive evidence. This is not because a motive must be established; it is because intent must be established, and a person who has a motive is likely to have acted intentionally rather than mistakenly. Motive evidence is thus admissible because it helps prove intent. But that does not turn intent into motive, and it does not mean a particular motive, such as wanting to hurt the country, must be proved before we can find that someone who illegally transferred classified information acted intentionally, cognizant that what she was doing was wrong.
As for Mrs. Clinton’s motives, no sensible person believes she wanted to imperil the country; many, however, justifiably believe she put her own interests ahead of the potential that the country could be threatened. I have always believed her motive in setting up a private communications network for her government work was twofold: to conceal the links between State Department business and Clinton Foundation business; and, as she was contemplating a presidential bid, to insulate her communications from disclosure under the Freedom of Information Act, congressional oversight, and other government-transparency measures.
Regardless of whether my motive theory is sound, however, the evidence that Clinton willfully mishandled classified information is mountainous.
Before she was ever secretary of state, Clinton lived and worked in a White House where classified-information protocols were observed. She had to apply these protocols for years as a senator whose committee assignments were intelligence-intensive. Before becoming secretary of state, she was indoctrinated in the handling of classified information and signed documentation attesting that she had read and understood the relevant executive orders about intelligence classification and handling.
Clinton well understood that the position of secretary of state involved immersion in classified information. She wrote in her memoir about the extraordinary steps she was required to take to safeguard classified information. Given the nature of her responsibilities for foreign relations and national security, her decision to conduct all her government business on a private server system made it inevitable that classified information would be transmitted in and stored on the private system. There is no possibility that she did not know this. The private system she set up was in violation of government and State Department regulations. Her loyal staff fought efforts to bring her into the government email system – even though she forced the resignation of an ambassador over, among other things, his conducting of government business over an unauthorized private email system.
When the request was made that Clinton surrender her emails to the State Department, she turned them over to her own lawyers and subordinates who did not have the security clearances required for access to the information. She destroyed tens of thousands of emails, even though they were under subpoena, so that they could not be reviewed by the State Department or the FBI. Of the 30,000 she deigned to surrender to the State Department, over 2,000 contained classified information, some of it among the nation’s most highly classified national-defense secrets. And she serially lied in her public statements about her emails, in congressional testimony (in which she brazenly claimed to have turned over all work-related email to the State Department, and that her lawyers had carefully reviewed every email before designating which should be surrendered and which withheld), and in her FBI interview (in which she pretended not to know what the ubiquitous “[C]” designation — for confidential — in classified documents meant).
Any prosecutor who understood there was no need to prove intent to harm the United States would be delighted to take that case to the jury — especially once the prosecutor realized he’d get to tell the jury: “Even if you suspend disbelief and buy the defense argument that she didn’t mean to horde and transmit classified information, you must still find her guilty if you conclude she was grossly negligent — as in ‘extremely careless.’”
The Trump administration and its Justice Department say they want to stop rampant leaking by government officials. It won’t stop absent a reversal of the last administration’s fiction that the prosecutor must establish a motive to harm the United States. The law does not require it. The rule of law requires correcting it.
Jeff Sessions Restores the Rule of Law