A couple of weekends ago, we urged the Justice Department to restore the rule of law to the protection of classified information by enforcing the Espionage Act as it is written, rather than as it was distorted in the Hillary Clinton emails investigation. That appears to be happening.
On Tuesday, the Justice Department announced the arrest of a former CIA officer on a felony charge of unlawfully retaining classified information. Jerry Chun Shing Lee (a/k/a “Zhen Cheng Li”) is charged in a complaint with one count of unlawfully retaining classified information, a felony carrying a potential ten-year prison sentence.
Sneak and Peek
There is surely more going on here than meets the eye. Lee, a naturalized citizen, lived in Hong Kong after retiring from the CIA in 2007, at the age of 43. An Army veteran, he had worked for the agency for 13 years as a case officer in various overseas postings. His missions required top-secret clearances, which were terminated as a matter of course when he left the CIA.
Five years later, he decided to move his family back to the United States, to live in Northern Virginia. By then, whatever he had been up to since leaving the agency — activities that are not described in the affidavit supporting the arrest complaint — had drawn intense government interest. En route to the mainland U.S. from Hong Kong, he and his family stopped in Honolulu for several days. There he was the subject of physical surveillance by the FBI. Moreover, the bureau and the Justice Department had obtained a search warrant for his hotel room — meaning they must have suspected him of serious wrongdoing before he ever got to Hawaii.
The search warrant was of the “sneak and peek” variety. Such warrants allow agents to enter the premises covertly, look around, and take pictures. The agents normally do not seize anything, however, even though they are not forbidden to do so, because they want the subject to remain unaware that he is being watched. It is a technique used when the government sees an opportunity to confirm suspicions while also continuing the investigation. This way, they can keep surveilling the suspect, take note of whom he meets with, and figure out if there is a criminal conspiracy — which, in a case like this, might well involve espionage. On that score, it would be interesting to know what Lee’s overseas postings were and how much they may have involved, for example, interaction with Chinese intelligence.
The agents found that Lee was in possession of two notebooks containing highly classified information in the form of handwritten notes. The jottings included top-secret intelligence, which is defined as information that could cause “exceptionally grave damage to the national security of the United States” if it fell into the wrong hands. The complaint describes the classified information as follows:
The date book contained . . . operational notes from asset meetings, operational meeting locations, operational phone numbers, true names of assets and covert facilities. The address book contained . . . true names and phone numbers of assets and covert CIA employees, as well as the addresses of CIA facilities.
Further investigation showed that these notes kept by Lee reflected classified reports (the CIA calls them “cables”) that Lee wrote years earlier when he was a CIA case officer. Obviously, the results could have been catastrophic if Lee had intentionally disclosed any of this information; or if, due to his recklessness, his notebooks had been discovered by foreign intelligence services — something that could have happened just as easily as our intelligence agencies’ discovery of them. Such mishandling would instantly endanger covert agents and informants, and it would blow their intelligence-gathering operations — meaning it would blind our government to foreign threats against American security and interests.
The Justice Department and FBI not only had a search warrant for Lee’s hotel and luggage in Hawaii, where he stayed from August 11 through 14, 2012. They also got a court-ordered warrant for the hotel room in Fairfax, Virginia, where Lee and his family arrived on August 15. Again, the agents covertly entered and took photographs but did not seize anything. The complaint does not indicate whether this led the FBI to conclude that Lee still had all the classified information, or whether he had disposed of some of it before arriving in Virginia.
This brings us to an intriguing part of the probe. After the 2012 searches confirmed that Lee was in possession of this highly classified information, the government let five years go by before finally arresting him. Reading between the lines, there may have been some thought given to arresting him in mid 2013: The affidavit recounts that the FBI interviewed Lee on five separate occasions between May and June 2013. Yet he was permitted to go free.
Presumably, the bureau was watching him to determine whether he was meeting with suspected intelligence operatives. Yet there is no allegation in the complaint that Lee was intentionally working against the United States.
Presumably, the bureau was watching him to determine whether he was meeting with suspected intelligence operatives. Yet there is no allegation in the complaint that Lee was intentionally working against the United States. He is charged only with retaining classified information, not disseminating it.
At some point after mid 2013, Lee moved back to Hong Kong and, as the affidavit puts it, became “employed overseas.” We do not know how often, if at all, he traveled back to the United States up until recently. Clearly, his location outside the U.S. would have made it hard to move against him — this is not the sort of case on which U.S. authorities would have sought assistance from their Chinese counterparts. A few days ago (the complaint is dated January 13), Lee flew into the U.S., arriving at JFK International Airport in New York City. There, agents were waiting and placed him under arrest.
Problems for the Prosecution
A complaint is only the first procedural step in a prosecution. We do not know what additional charges the Justice Department could bring in an eventual indictment. Because of the palpable sensitivity involved, there is often an energetic effort to plead espionage cases out at an early stage, on a very bare-bones criminal information (which the prosecutor files if the defendant waives grand-jury indictment). This would avoid further publicizing the classified information, and it would encourage Lee’s cooperation to help our intelligence agencies assess how much damage has been done.
If the case is indicted and goes to trial, some factual and legal challenges for the government are already clear. To begin with, it could be difficult to convince a jury that Lee gravely endangered the nation by retaining highly classified information in non-secure settings. After all, the FBI and Justice Department allowed him to do just that for five years, despite having had golden opportunities in 2012 and 2013 to arrest him and seize the notebooks. Now, I suspect that the intelligence agencies had very good investigative reasons for not nabbing Lee when they had the chance. The problem is that these reasons probably involve intelligence matters that the government will not want to reveal — such as whom they may have suspected Lee of collaborating with, or what classified operations they thought Lee may have compromised. Advantage: Lee.
The case also presents significant Fifth Amendment and statute-of-limitations issues. The complaint affidavit alleges that, in communications with CIA colleagues and the aforementioned mid-2013 interviews by the FBI, Lee “never suggested that he possessed these [classified] notebooks.” But that is not how it works in our system: A person is not required to incriminate himself — which is exactly what Lee would have done if he’d volunteered that he had the notebooks.
It is true that it was a crime for Lee to retain the classified materials, and that he was obliged to surrender them. But the Fifth Amendment privilege against self-incrimination protected him from having to confess face-to-face to the FBI agents who interviewed him. It is no more significant that he failed to confess to the FBI agents in the room with him in 2012 than that he failed to call the CIA and confess over the phone at any time after he left the agency in 2007. It was up to the agents who interrogated Lee to ask him whether he had the notebooks. If they had asked that question, and Lee had lied in response, then they could have charged him with making false statements and obstructing their investigation. But even though Lee appears guilty of unlawfully retaining classified information, the Constitution forbade forcing him to make statements incriminating himself.
So why would the Justice Department put this in the complaint? I suspect prosecutors are concerned about staleness. Again, Lee left the CIA in 2007, taking his classified notebooks with him. That was nearly eleven years ago. The statute of limitations for most federal crimes is five years (see section 3282 of the federal penal code). But we are talking here about a peculiar crime, the retention of information. One could argue that retention is a continuing offense: For every moment after he left the CIA, Lee had an obligation to surrender the classified information, so in every moment of failing to do so, he “again” committed the retention offense. To the contrary, Lee’s lawyer will argue that the retention offense was complete when he took every action necessary to be guilty — meaning: when he took the notebooks with him upon retiring from the CIA in 2007. This will be a hotly contested issue.
The fact that they went to the trouble of getting search warrants, executing them in sneak-and-peek fashion, physically surveilling him around Honolulu and Fairfax, and interrogating him five separate times, indicates they believed they had a very live case.
I suspect the staleness problem may explain, at least partially, why the FBI did not arrest Lee in 2012 or 2013. By then, the statute of limitations on the retention may already have lapsed (by 2013, it certainly had). Perhaps the FBI investigators were trying to determine if Lee would take some new criminal action with the notebooks, such as pass the information to someone else. Of course, my speculation here has problems of its own: If in 2012 and 2013, the agents already believed they had no live case on Lee, why didn’t they just seize the notebooks from him, or tell him to surrender them? The fact that they went to the trouble of getting search warrants, executing them in sneak-and-peek fashion, physically surveilling him around Honolulu and Fairfax, and interrogating him five separate times, indicates they believed they had a very live case.
In any event, it is possible that the complaint affidavit details Lee’s failures to confess that he had the notebooks because the Justice Department plans to argue that this breathed new life into the otherwise stale retention offense. That is, Lee’s non-confession in 2013 is somehow like an affirmative act (actually, an affirmative omission) in furtherance of the ongoing retention offense, which should be deemed to start the statute of limitations running anew.
Well . . . it’s a theory.
Comparing Lee and Clinton
We cannot end without returning to where we started: Restoring the rule of law to the protection of classified information. The case against Lee is more reminiscent of the case against David Petraeus than of that against Hillary Clinton — although it is unlikely Lee will get the same sweetheart misdemeanor plea deal the Obama Justice Department gave Obama’s former CIA director. Like Petraeus’s journals, Lee’s notebooks contain handwritten notes of highly classified missions, meetings, and sources. Lee’s offense does not appear to involve retaining classified information in digital form on non-government servers or transmitting it by email.
That said, the Trump Justice Department’s prosecution theory in Lee’s case repudiates in every salient particular the Obama Justice Department’s analysis of the Clinton investigation. Most significantly, the government contends that Lee had the necessary mens rea — the criminal-intent element — to commit the felony retention offense.
There is no evidence (at least no public evidence at this point) that Lee had any motive or took any action to harm the United States. It was based on such an absence of traitorous intent that the Obama Justice Department and the FBI — and, more important, President Obama himself — rationalized dropping the Clinton investigation rather than filing an indictment. In Lee’s case, to the contrary, the Justice Department finds that traitorous intent is not an element of the offense. The prosecution must merely show that Lee acted willfully: i.e., aware that his conduct was illegal, he intentionally retained classified information in a place not authorized for its storage (and during a time when he was no longer authorized to possess it).
The complaint affidavit indicates that prosecutors will easily be able to establish this by proving the nature of Lee’s CIA work (immersed in classified intelligence); the fact that he received the required government indoctrination in the handling of classified materials; and the fact that, as a condition of gaining access to classified information, he signed documents acknowledging his understanding of how they were to be handled — including the requirement that they be stored only in authorized repositories and that they be surrendered upon leaving government service. All of these factors were present in Hillary Clinton’s case (and that of her underlings).
Furthermore, just as in the cases of Clinton and Petraeus, it makes no difference that the classified information in Lee’s possession was not “marked classified.” Lee well knew, as did Petraeus and Clinton, that the information they retained and handled was classified; once one is trained and experienced in these matters, markings are irrelevant. Any official with a security clearance who takes notes or writes an email about a classified briefing is well aware that he or she is thereby creating classified documents even though they are not stamped as such.
Finally, it makes no difference that Lee is charged with felony retention of classified information under the Espionage Act’s section 793(e) while Mrs. Clinton was said to be investigated for grossly negligent mishandling of classified information under the Act’s section 793(f).
As I have recently explained, the misimpression that Clinton’s case is primarily about “extreme carelessness” rather than willful misconduct is the result of Obama administration sleight-of-hand. Mrs. Clinton should have been investigated (and charged) under section 793(e) since she, like Lee, willfully and unlawfully retained classified information in unauthorized places (and transmitted it to unauthorized people). The gross-negligence felony (793(f)) should have been the prosecutors’ fallback position — i.e., even if a jury somehow rejected the overwhelming evidence that she willfully mishandled the intelligence, she could still be convicted if the jury concluded she was grossly negligent.
Clinton was like Lee: She should have been prosecuted for willful misconduct.
In a deceptive two-step, the Obama Justice Department first claimed Clinton could not be prosecuted for willful mishandling because she did not have a motive to harm the United States (not an element of the offense, and thus not true). Then, it claimed that she could not be prosecuted for gross negligence, either. To do so, they insisted, would (a) be constitutionally problematic because negligence is usually a civil-law standard, not a basis for criminal guilt; and (b) unfairly single her out because the Justice Department rarely brings such cases. This was nonsense on stilts: There is plenty of constitutional support for using negligence as a basis for criminal liability (for example, negligent homicide); the standard here was gross negligence, and it was applied only to a special category of government officials who were given security clearances after extensive training in the proper handling of classified materials; military officials have been prosecuted for gross negligence for misconduct far less serious than Clinton’s; and section 793(f) is a presumptively valid congressional statute that has never been held unconstitutional in its century on the books, so if there was any question, the Justice Department should have defended the law, not undermined it.
The Justice Department and FBI arguments about negligence were specious. Yet, by drawing us into this morass, the Obama administration ingeniously set the framework for public discussion of Clinton’s case: just carelessness, not real crime. In reality, Clinton was like Lee: She should have been prosecuted for willful misconduct.
Indeed, Clinton’s case did not present the difficult challenges the Justice Department will face in Lee’s prosecution: Is the case time-barred? Is retention a continuing offense that may still be charged eleven years after the fact? Why didn’t the FBI arrest Lee and seize his classified notebooks when it had the chance? To put it mildly, Lee’s case is no slam-dunk. But if the government fails to convict Lee, it won’t be due to the intent element, on which the evidence is strong. In that sense, the Espionage Act is back to being enforced as it is written. If the email investigation were reopened under those terms, it would be bad news for Mrs. Clinton and her underlings.