I hate to part company with NR’s excellent political reporter Brendan Bordelon, but his report on Hillary Clinton’s potential criminal exposure relies on some legal analysis that is, at the very least, incomplete.
The report leaps from a false premise I have been warning against – and that Mrs. Clinton has been trying to sell – since the scandal broke in March. Brendan writes: “National-security lawyers say the decision to charge Clinton would depend largely on whether the offending documents were actually marked ‘classified.’” The case, however, is not about classified documents; it is about classified information.
I explained the distinction a few months back:
Classified Documents versus Classified Information
Mrs. Clinton stressed [at her March press conference] that she never stored classified documents on her private e-mail system. To the uninitiated, this sounded like the strongest point in her defense. Mostly, however, it is a red herring, exploiting the public’s unfamiliarity with how classified information works — and fueling no small amount of irresponsible speculation over the last few days about how the nature of her responsibilities meant classified material must have been stored on her private system.
In the government, classified documents are maintained on separate, super-highly secured systems. Yes, if security gets lax or you have a determined Ed Snowden type with sufficient expertise, the protections can be defeated. But in general, Mrs. Clinton would not have been able to access classified documents even from a “.gov” account, much less from her private account — she’d need to use the classified system. In fact, many government officials with security clearances read “hard copies” of classified documents in facilities designed for that purpose rather than accessing them on computers. [Such a facility is often called a “SCIF” — sensitive compartmentalized information facility.]
That said, there are two pertinent caveats. First, since we’re dealing with Clintonian parsing here, we must consider the distinction between classified documents and classified information — the latter being what is laid out in the former. It is not enough for a government official with a top-secret clearance to refrain from storing classified documents on private e-mail; the official is also forbidden to discuss the information contained in those documents.
The fact that Mrs. Clinton says she did not store classified documents on her private server, which is very likely true, does not discount the distinct possibility that she discussed classified matters in private e-mails. We would not be able to judge that absent reviewing the e-mails. [Note: Now that the e-mails have been reviewed, what seemed a “distinct possibility” in March is now an indisputable fact.] If any of the 31,830 withheld e-mails from the private, non-secure system — involving America’s top diplomat who was in constant discussions with other important diplomats, top military and national-security officials, her trusted advisers, and even the president of the United States — touched on classified matters, that could land Mrs. Clinton in very hot legal water. It would be a powerful incentive to hit the “delete” key.
Consequently, the cases involving former CIA directors John Deutch and David Petraeus are not apt analogies here. In both, the principal issue was the mishandling of physical documents, not the improper communication of information. [I note, however, that Petraeus did improperly communicate information — as I wrote at the time, the Justice Department chose not to charge him for doing so, generously treating Petraeus’s case as the mere mishandling of documents.]
Relying on the Deutsch precedent, Bradley Moss, a lawyer at a private DC firm that does national security-related work, says (as Brendan puts it) that, to be criminally liable, “Clinton must have transmitted documents with a clear ‘classified’ label – or, at the very least, quoted heavily from such documents – within the offending e-mails in order for the DOJ to open a criminal inquiry.”
Not so. Let’s say then-Secretary Clinton was at classified briefings in which no documents were distributed but information was communicated that, say, “X, a top Iranian military official, is the point-man for exchanging nuclear research with North Korea.” It would be unlawful to store or transmit that intelligence outside the government channels for storage and transmission. It would not matter whether the intelligence was stamped “classified” someplace or whether Mrs. Clinton “quoted heavily” from a classified document.
Even below the secretary-of-state, high-ranking officials involved in national security do not just read copious amounts of documents; they attend many classified briefings that take place in settings the government spends lots of your money to protect against eavesdropping. The issue is not whether pieces of paper stamped “classified” are involved; it is whether defense secrets are being communicated outside secure government channels.
In fact, the espionage act — which regulates the handling of intelligence by government officials — does not refer to classified information; it refers to information relating to the national defense. Moreover, it does not prohibit solely the transmission of such information; it criminalizes the communication, delivery, or transmission of that information; causing communication, delivery, or transmission of that information; permitting the removal of that information from its proper place of custody through gross negligence; permitting that information to be lost, stolen, abstracted, or destroyed through gross negligence; or, failing to make a prompt report to superiors in the government when an official knows that the information has been removed from its proper place of custody, communicated to someone not authorized to have it, lost, stolen, abstracted, or destroyed.
The range of potential crimes — and what I’ve outlined here are serious felonies punishable by up to ten years’ imprisonment — is much broader than merely transmitting or otherwise mishandling classified documents.
There are other points to make, but I will make them in a separate post or two.