Why Weren’t Clinton’s Lawyers Prosecuted for Failing to Report Mishandling of Classified Information?

I have a column just up on the website, focusing on an issue that’s been ignored: the classified-information law implications of Hillary Clinton’s transmission of classified information to her lawyers.

There has been a good deal of commentary about the fact that Cheryl Mills and Heather Samuelson, former State Department officials under Secretary Clinton, should not have been permitted to represent Clinton as lawyers in the e-mails investigation: They were subjects of the same investigation; as former government officials, they were disqualified from advocating on Clinton’s behalf; they were barred from representing Clinton by ethical rules applicable to lawyers; and the arrangement was illegal under federal criminal law.

But let’s put all that aside for the moment. There is no doubt that Clinton willfully provided Mills and Samuelson with her e-mails, at least 110 of which (the FBI tells us) were classified at the time they were sent or received. Those include e-mails classified as top-secret and designated as “special access program.” Even if Mills and Samuelson had security clearances, the transmission of such highly classified information to them would have been illegal unless they were read into these limited-access programs and had a government-certified need to know the information.

The same is true of Clinton’s principal criminal defense lawyer, David Kendall. He reportedly has a security clearance, but that is not sufficient to make one an authorized recipient of this kind of intelligence.

On this subject, my column raises a little-noticed provision of federal law that I want to flesh out a bit more.

It is not only a criminal offense for government officials to mishandle classified information willfully or with gross negligence. It is also a felony for a persons trusted with security clearances to fail to report to the government that they have learned classified information has been removed from its authorized, secure location and transmitted to an unauthorized person or stored in an unauthorized setting.

When Clinton, Mills, Samuelson, and Kendall reviewed Clinton’s emails – beginning in mid-2014, at the State Department’s request – did they immediately report to the government that classified information had been removed from its proper government repository and stored on non-secure, non-government servers, laptops and thumb-drives?

I’m betting they didn’t. Indulge me for a moment as we consider how a failure to do so would be prosecuted.

There is no doubt that Mills and Samuelson had Clinton’s classified e-mails on their laptops. As FBI director James Comey conceded in his congressional testimony, these lawyers had copies of what was on Mrs. Clinton’s home-brew server so that, at Clinton’s direction, they could sort the supposedly private e-mails from those that were State Department-related.

Again, let’s assume they failed to report to the government that they’d learned during this review that highly classified information had been improperly removed and was being improperly stored. That’s a criminal offense, so how would the Justice Department and the FBI ordinarily go about proving it? Well, it would be straightforward as long as the government had obtained the laptop computers on which the classified information was improperly stored.

The Justice Department could easily have obtained these computers by either having the FBI seize them pursuant to search warrant, or issuing subpoenas that compelled the lawyers to surrender their laptops to the grand jury.

But what did the Obama Justice Department do? It refused to open a grand jury investigation so subpoenas could be issued; and it treated Mills and Samuelson as friendly witnesses – even lawyers – in the case, not as suspects from whom investigators typically seize evidence by warrant.

The Justice Department gratuitously gave the two lawyers immunity from prosecution in order to cajole them into turning over their laptops, promising that Mills and Samuelson would not be indicted based on any evidence found on those laptop computers. And Justice promised these computers – the incriminating evidence – would be destroyed after the FBI conducted a highly limited examination.

In a normal investigation, the government does not grant immunity when it has a solid, prosecutable criminal case against a suspect. It indicts the suspect and then, from a position of strength, negotiates a guilty plea agreement in which the suspect promises to cooperate in the investigation of other suspects in return for sentencing leniency.

But for some reason – can’t imagine what it might be – that didn’t happen in the Hillary Clinton e-mails investigation.