So let’s say we accept that there is likely at least a few emails (State Department claims there are 22) that contain highly sensitive information.
**Did she violate a federal law for retaining classified information on an unclassified, insecure private email server?**
This part is an ongoing investigation, so I’m asserting what I believe the arguments the two sides are making in their legal war rooms based on the information that’s been reported.
As a technical matter, I’m presenting the arguments as Clinton vs FBI, although it would really be Clinton vs. Department of Justice in a court. I think these are the legal simulations that the FBI will construct in creating a recommendation to the Department of Justice to pursue an indictment.
There are two laws in the U.S. Crimes and Criminal Procedure Code surrounding the handling of classified information
(I’ll be underlining the laws like a piece of evidence in a policy debate round for those who don’t want to read all the way, sorry need to relive my glory days)
(1) Title 18 U.S. Code § 1924 (Misdemeanor) – Unauthorized removal and retention of classified documents or material
(a) Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both.
Clinton’s Side: This is from Dan Abrams, ABC News Legal Analyst and Columbia Law School graduate and who’s view is also supported by Ruth Marcus a Harvard Law graduate, Pulitzer prize winner, and a pre-eminent columnist at the Washington Post.
There are serious legal hurdles to overcome for those who would seek to file a charge under this law. First, none of the information she possessed and/or presumably “removes” had officially been declared “classified” at that time. That matters.
Sure, there is an argument that classified “documents” are not the same as classified “information” and that certain information is “classified at birth” and therefore always officially classified. And there’s no question that some of the information and/or documents were later declared classified.
But this isn’t a law school exam where we attempt to figure out how creative one can become in fitting a law into a particular fact pattern. We are talking about whether a criminal charge should be filed based on intentional conduct when even governmental agencies squabble over what is classified and what isn’t. So proving that she “knowingly” removed “classified information” “without authority” at the time seems far-fetched based on what we know today.
Abrams synopsis is exactly why lawyers often criticize journalists for conflating wrong-doing with a crime. Evidence of wrong-doing is rarely enough to put someone in handcuffs at this level.
But in order to not make that conflation, a significant part of her defense has to be that Hillary Clinton actually DIDNT KNOW the emails on her server were classified. And precisely why it matters that none of her emails on her private server were marked classified at the time – their argument being that Clinton could only know if information was classified if it was marked as such on the email.
This is our legal system.
Only if the FBI can prove that she knowingly retained, deleted or transmitted *unmarked* classified information can she be prosecuted, regardless of how probable it is that she knew.
But here is Clinton’s argument for why she actually did not know.
The classified information on her emails was sent by her aides, not by her. She is a passive, unwitting, recipient of classified information, not the initiator of disseminating it. Senator Feinstein, who came to her defense earlier saying that there was “no question” the State Department was over-classifying her emails, said that Clinton didn’t originally send any of the e-mails and that they were largely from her staff, although she did sometimes reply. Dianne Feinstein said in a statement that it made no sense to her that “Secretary Clinton can be held responsible for email exchanges that originated with someone else.”
This is how her team will distinguish her case from the prosecution of former CIA Director David Petraeus. Petraeus pled guilty in March 2015 to a misdemeanor charge of mishandling classified material. It was revealed that he had provided notebooks with highly classified information to his biographer and mistress (classic combo) Paula Broadwell, whose security clearances did not permit her to receive it. Clinton, on the other hand, never actually initiated the release of classified material like Petraeus. After Petraeus resigned, his access to classified information was suspended, he was fined $100,000 and sentenced to two years of probation.
Do you think it’s an accident that the first time Clinton made comments on the scandal and someone asked her if she had been “specifically briefed on the security implications of your own email server” without saying anything about classified emails – this was Clinton’s immediate response.
CLINTON: I did not email any classified material to anyone on my email. There is no classified material. So I’m certainly well-aware of the classification requirements and did not send classified material.
This has been a carefully laid out defense long before the story broke to the public. And kudos to her and her legal team, I’m not sure I would’ve expected anything less.
That’s why the story has shifted now as to whether one of her aides could possibly be convicted, because they knowingly altered or transmitted classified information. Her aides have pledged not to delete their emails. Sometimes you have to sacrifice a pawn to save the Queen.
FBI’s Side: We vigorously call baloney. Regardless of whether some information on her personal server is classified or not, in what world could a Secretary of State send or receive an email that contains information the Inspector General, and our nation’s intelligence experts, consider to be one of the nation’s most deeply kept secrets, and he/she wouldn’t have known it was a secret.
If Department of Justice doesn’t think they can convince a grand jury of that, then let me have a go.
If she is acquitted of violating Section 1924 under that defense then it is sanctioning political idiocy as an excuse for criminal behavior. And whether there is a Supreme Court precedent to uphold that exact idea will be discussed in the other criminal statute I think she violated.
**Here are the two pieces of evidence (maybe more, but these two for sure) that I believe the FBI will use to assert that Hillary Clinton knowingly retained and transmitted classified information**
(1) A 2011 email from Hillary Clinton to aide Jake Sullivan
In the email, Jake Sullivan is attempting to send a set of talking points “TPs” to Clinton over secure fax. When he says that “they’ve had issues sending secure fax”, Clinton responds “If they can’t, turn into nonpaper w no identifying heading and send nonsecure”
Investigators will seize upon this request from Clinton – to have what they consider recognized sensitive data be stripped of its markings and sent through a non-secure channel – as proof that she had the KNOWLEDGE that potentially sensitive information could come onto her server and the INTENT to have it be sent to her in an insecure manner. Even if the classified email originated with her aide.
The Clinton team and State Department has responded by saying there is no evidence the talking points she was requesting contained classified information, and there is no evidence that Jake Sullivan actually sent her any information via nonsecure methods. The State Department has not released the talking points and spokesman John Kirby would not say if the document was classified.
While both of those things may end up being true (that the document was not classified and was never sent) and this email can’t directly be used as evidence that she knowingly transmitted classified information – it DOES let prosecutors establish that she was generally aware of the presence of classified information in her emails, and if there is classified information on her server now, there is a history of her KNOWINGLY REQUESTING sensitive information being sent to her, not being a passive recipient .
I’m not a lawyer, just like I’m not a rapper, and I don’t know what will or won’t convince a grand jury. But I, along with former US district judge and Bush administration Attorney General Michael Mukasey, believe the FBI will use this line of argument.
(2) A 2009 Non-Disclosure Agreement
This is the big one.
On January 22nd, 2009, the day after assuming the office of Secretary of State, Hillary Clinton signed a “Classified Information Nondisclosure Agreement” — or Standard Form 312. She signed and agreed to abide by these specific stipulations and punishments.
1. Intending to be legally bound, I hereby accept the obligations contained in this Agreement in consideration of my being granted access to classified information. As used in this Agreement, classified information is marked or unmarked classified information, including oral communications, that is classified under the standards of Executive Order 12958, or under any other Executive order or statute that prohibits the unauthorized disclosure of information in the interest of national security; and unclassified information that meets the standards for classification and is in the process of a classification determination as provided in Sections 1.1. 1.2, 1.3 and 1.4(e) of Executive Order 12958, or under any other Executive order or statute that requires protection for such information in the interest of national security. I understand and accept that by being granted access to classified information, special confidence and trust shall be placed in me by the United States Government.
2. I hereby acknowledge that I have received a security indoctrination concerning the nature and protection of classified information, including the procedures to be followed in ascertaining whether other persons to whom I contemplate disclosing this information have been approved for access to it, and that I understand these procedures.
3. I have been advised that the unauthorized disclosure, unauthorized retention, or negligent handling of classified information by me could cause damage or irreparable injury to the United States or could be used to advantage by a foreign nation. I hereby agree that I will never divulge classified information to anyone unless: (a) I have officially verified that the recipient has been properly authorized by the United States Government to receive it; or (b) I have been given prior written notice of authorization from the United States Government Department or Agency (hereinafter Department or Agency) responsible for the classification of information or last granting me a security clearance that such disclosure is permitted. I understand that if I am uncertain about the classification status of information, I am required to confirm from an authorized official that the information is unclassified before I may disclose it, except to a person as provided in (a) or (b), above. I further understand that I am obligated to comply with laws and regulations that prohibit the unauthorized disclosure of classified information.
4. I have been advised that any breach of this Agreement may result in the termination of any security clearances I hold; removal from any position of special confidence and trust requiring such clearances; or termination of my employment or other relationships with the Departments or Agencies that granted my security clearance or clearances. In addition, I have been advised that any unauthorized disclosure of classified information by me may constitute a violation, or violations, of United States criminal laws, including the provisions of Sections 641, 793, 794, 798, *952 and 1924, Title 18, United States Code, *the provisions of Section 783(b), Title 50, United States Code, and the provisions of the Intelligence Identities Protection Act of 1982. I recognize that nothing in this Agreement constitutes a waiver by the United States of the right to prosecute me for any statutory violation.
There are three arguments I think the FBI will make from this agreement.
First, the FBI will argue that Hillary illegally transmitted highly classified information on an unauthorized private server, regardless of whether or not it was marked classified. The agreement stipulates that “classified information is marked or unmarked classified information”. This implies that the recipient should *not have to be told* that information is classified if it is in fact so (kind of a tautology). But this agreement, that Clinton signed, throws questions into what our legal definition of “knowingly” is.
There are two types of classified information. Information that is “born classified” and information that is “retroactively classified”. Information that is born classified is information that is classified from the moment of its inception, regardless of when or where it was created. The concept of “born classified” information actually originated with the advent of nuclear weapons/nuclear energy in the 1940s because the government considered any information communicated about nuclear issues to be automatically classified until it was declared otherwise.
Did Hillary Clinton “know” that information on her server should have been “automatically classified” the moment it appeared in any form ? Even if it was not *marked classified*, is it implicitly classified by the nature of the information, and she should automatically “know” that?
Seems like a tough burden to prove, and Clinton’s team will certainly fight the legal precedents of “born classified” in court. This exact issue came to the Supreme Court once in The United States vs Progressive in 1979 when a magazine wanted to reveal information about the development of the hydrogen bomb. The Court never ended up taking the case, but judicial analysts have said the Court would have rejected the ‘born secret’ clause as being an unconstitutional restraint on speech. Our current Supreme Court has had some notable decisions regarding what they have considered “free speech” (*cough* Citizens United ). If this case really gets prosecuted, how would our current 8-membered Supreme Court adjudicate this? This is why the next Supreme Court nomination has so much hanging in the balance because this issue may not go away even if the Department of Justice does not prosecute a referral for indictment.
But maybe the burden is not as high as we think. The Inspector General’s report has already said her information was “born classified” – “these emails contained classified information when they were generated“. Which is likely why you have intelligence experts saying the information on her server is “beyond top secret” as Special Access Program information, or “top secret”/”special compartmented” information.“Top secret” is reserved for material whose release could cause “exceptionally grave damage to the national security.” Things that would be consistent with reports that two of the emails had intimate details of missile movements within North Korea and the specifics of a drone operation. They would argue that these emails could only be classified at that level if they were truly “born classified”, not dissimilar to the way our nation treated correspondence about nuclear weapons.
Let’s also not forget that Hillary Clinton was a central figure in the negotiation of the new START treaty with Russia in 2011 to reduce both countries nuclear stockpiles. Do we think there are e-mails on her server with Russian counterparts perhaps detailing the location, stockpile and size of particular nuclear weapons systems? Information that the United States originally created the concept of “born classified” information to regulate.
Here are two people who weighed in –
“It’s born classified,” said J. William Leonard who is one of the intelligence experts under the Inspector General that reviewed the emails. He is a former director of the U.S. government’s Information Security Oversight Office (ISOO) which is part of the National Archives and Records Administration. Leonard was director of ISOO, from 2002 until 2008, and worked for both the Bill Clinton and George W. Bush administrations. He said in a telephone interview that for the State Department to say otherwise was “blowing smoke.”
And this guy who really needed to vent –
“TS/SCI is very serious and specific information that jumps out at you and screams ‘classified,’ , said retired Army Col. Larry Mrozinski, who served almost four years as a senior military adviser and security manager in the State Department under both Clinton and Condoleezza Rice and was the certified security manager for the peacekeeping, sanctions and counterterrorism office in the Bureau of International Organization Affairs, where he had TS/SCI clearance.
“The sources [of the information] also drive and signal sensitivity.” “It’s hard to imagine that in her position she would fail to recognize the obvious.”
“This is a serious breach of national security,” Mrozinski said, and “a clear violation of the law.”
“You are strictly forbidden to discuss TS/SCI of any kind outside a SCIF,” he explained, and yet “she was viewing and handling it in direct violation of the law and possibly exposing it to our enemies,” such as ISIS and Beijing, which has hacked Pentagon sites.
“Anybody else would have already lost their security clearance and be subjected to an espionage investigation,” Mrozinski added. “But apparently a different standard exists for Mrs. Clinton.”
State Department officials said that there are sensitive “keywords” which distinguish a classified email from an unclassified information, even if the material didn’t bear a classified heading. They have said Clinton was trained to understand the difference when she was “read in” on procedures to ID and handle classified information by diplomatic security officials in 2009. A training process that they consider very robust.
Clinton’s only response to these allegations of knowingly discussing high government secrets has been to simply deny the claim from the Inspector General that the information on her server is really that classified (and also suggest he is colluding with Republicans, why not throw that in there for good measure).
Her entire defense for not knowing the information on the server was classified must rely on us believing, or proving, that Inspector General Charles McCullough III, the intelligence experts who reviewed the emails and Senator Richard Burr are factually incorrect in the assessment that information on her server is “beyond top secret” – as a Special Access Program or Top Secret/SCI. If this case is prosecuted and heard by a grand jury, it is likely these individuals would be subpoenaed to the court to testify for their claim that Clinton’s information would have been “born classified.”
I can’t believe I’m working this hard to prove to you that the responsibilities of a nation’s Secretary of State could have possibly involved talking about government secrets, that those secrets could have been discussed over email, and that she knew they were government secrets at the time, so many issues the public would already assume to be true (and not without good reason honestly).
And maybe some people (lawyers) would say I haven’t worked hard enough…but can we just please ask ourselves how else is she possibly doing her job if she is not discussing and corresponding about classified information?
Regardless, *all of this is irrelevant* when the FBI makes their second argument.
Second, If Hillary was uncertain about the classification status of any information, then she was supposed to “confirm from an authorized official that the information is unclassified”.
There is no indication that Hillary Clinton ever attempted to confirm with any other government official, let alone the proper “authorized official” that the information she was sending or receiving was potentially classified or not. This violation of the agreement makes her liable for violations of the US Criminal Code Title 18 (as is spelled out in the agreement regarding specific statutes).
When Hillary was asked about her signing of this non-disclosure agreement by George Stephanopoulos on ABC’s “This Week” she seemed to reject the language of the non-disclosure agreement saying that “there has to be some markings” on classified information.
That is untrue. The non-disclosure agreement establishes precisely that whether information is specifically marked classified or not, she alone accepts the responsibility of determining whether or not it should be marked classified by consulting with authorized officials on the issue. She failed to do that. That is a violation of an agreement she signed and of which the penalties for doing so (a fine or up to a year in prison) she must accept.
Clinton’s team would respond by saying that Hillary Clinton was the final arbiter of what was considered classified or not classified material given that she was the head of the agency. She would not be required to consult with other officials on whether material was classified because it’s up to her to decide what’s classified and what’s not. This is where the two sides would battle out the application of the “born classified” precedent. Did Clinton’s failure to be aware of what some consider inherently classified information warrant a consultation with others to verify the classification status?
The third argument the FBI will make is that she engaged in “negligent handling of classified information” because her private email server did not meet the security requirements to house government information.
Here is the current legal definition of the word “negligent”
n. failure to exercise the care toward others which a reasonable or prudent person would do in the circumstances, or taking action which such a reasonable person would not. Negligence is accidental as distinguished from “intentional torts” (assault or trespass, for example) or from crimes, but a crime can also constitute negligence, such as reckless driving. Negligence can result in all types of accidents causing physical and/or property damage, but can also include business errors and miscalculations, such as a sloppy land survey. In making a claim for damages based on an allegation of another’s negligence, the injured party (plaintiff) must prove:
a) that the party alleged to be negligent had a duty to the injured party-specifically to the one injured or to the general public,
b) that the defendant’s action (or failure to act) was negligent-not what a reasonably prudent person would have done,
c) that the damages were caused (“proximately caused”) by the negligence.
Okay now let’s prove each one!
a) That the party alleged to be negligent had a duty to the injured party-specifically to the one injured or to the general public
This is a pretty easy one, Hillary Clinton swore an oath of office to do just that.
I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God
The injured party is the United States government that had its classified information regarding the defense of the nation illegally exposed.
b) That the defendant’s action (or failure to act) was negligent-not what a reasonably prudent person would have done
I will argue that Hillary Clinton was both actively negligent (defendant’s action) and passively negligent (failure to act)
(1) Actively negligent
First, Clinton tried to change the rules to allow her use her unsecured BlackBerry in a secure facility for classified information.
This is one of the newest stories of the scandal and was reported on March 16th, 2016. For some reason this is being incorrectly reported on Facebook’s trending articles and the media as “NSA denied Clinton’s request for a secure smartphone.” I have no idea how it got reported like that.
Hillary Clinton actually tried to modify existing State Department security protocols so she would be able to use her phone in what’s called a SCIF – Sensitive Compartmented Information Facility. The NSA said no.
When asked about this, current and former intelligence officials said this use would defeat the purpose of the secure facility, and it is standard practice to leave all electronics outside
“When you allow devices like this into a SCIF, you can allow the bad guys to listen in,” cybersecurity Morgan Wright said.
That does not seem like what a reasonable person would do if they had sworn an oath to protect the nation from all enemies. I believe this is actively being negligent.
Second, a secure classified email was made for her by the State Department, but she chose not use it.
This could be considered an instance of passive negligence since its a negative action in NOT doing something. But the fact that she CHOSE NOT TO DO ANYTHING is the key point. Here’s a letter from Julia Frifield, who serves as State Department assistant secretary of state for legislative affairs.
“Secretary Clinton did not use a classified email account at the State Department. An account was set up on ClassNet on her calendar, but it was not used,” Frifield wrote in response to a Sept. 21, 2015 letter from the committee asking for information about Clinton’s use of an account equipped to handle classified information.
ClassNet refers to the State Department workstations that are designed to allow employees to view classified information. It doesn’t seem possible to prove right now that Hillary Clinton was aware of this secure email being set up on ClassNet for her. But it certainly seems fair to say that the State Department tried to get Clinton’s records into the system by setting up a secure account and putting it on her calendar, but it was ignored or rejected.
And what if a released email has revealed precisely that information?
Here is an e-mail from Huma Abedin, Clinton’s top aide, to State Department executive secretary Stephen Mull – rejecting his proposal for an official Blackberry with a State Department e-mail account and saying “It’s pretty silly and she knows it”. I have transcribed this email exchange below – bolding and underlining are added by myself.
From: Mull, Stephen D
Sent: Tuesday, August 30, 2011 01:39 PM
T0: Mills, Cheryl D
Cc: Abedin, Huma; Kennedy Patrick F, Hanley, Monica R
Subject: S Communications
Thanks again for alerting me to the communications issues the Secretary has been having. Here’s a status report
On the immediate problem of the Secretary’s not being able to have her calls transferred, [REDACTED]
The technicians are onsite now [REDACTED]
On the more long term issue, I’ve asked our team to develop an enhanced package of capabilities and equipment that we could propose replying with the Secretary to be as closely co-located as possible with her when she is on travel away from her usual residences. The package will include things that anticipate the normally unexpected such as hurricanes, power outages, earthquakes, locusts etc, such as generators, uninterrupted power supplies, supplementary satellite capabilities, including satellite phones for when local infrastructure fails (as it did in NY over the weekend).
Separately, we are working to provide the Secretary per her request a Department issued Blackberry to replace her personal unit which is malfunctioning (possibly because of her personal email server is down). We will prepare two versions for her to use – one with an operation State Department email account (which would mask her identity, but which would also be subject to FOIA requests), and another which would just have phone and internet capability. We’re working with Monica to hammer out the details of what will best meet the Secretary’s needs.
Please let me know if you need anything more for now, and I’ll be in touch with the above longer term options soon.
From: Abedin, Huma
Sent: Tuesday, August 30, 2011 17:17 PM
To: Mull, Stephen D, Cheryl D
Cc: Kennedy, Patrick F; Hanley, Monica R
Subject: Re: S Communications
Steve – let’s discuss the state blackberry, doesn’t make a whole lot of sense.
As for the equipment, the comm team was limited in some capacity because we did not have authorization from owners of residence to install equipment. We did it regardless. Additionally as S knows, the team didn’t have access to the property until a couple hours before S arrived. Finally, as even the white house attested, this was a pretty wide spread problem, not just affecting us. So we should bear that in mind.
From: Mull, Stephen D
Sent: Tuesday, August 30, 2011 05:18 PM
T0: Abedin, Huma
Re: S Communications
Thanks for reminding us all of this very helpful context!!! 🙂
From: Abedin, Huma
Sent: Tuesday, August 30, 2011 5:34 PM
To: Mull, Stephen D
Subject: Re: S Communications
Its pretty silly and she knows it.
Okay so let’s interpret this exchange.
Stephen Mull from the State Department is emailing Hillary Clinton’s Chief of staff Cheryl Mills regarding Hillary Clinton’s communications “Subject: S Communications”. This email exchange was likely inspired by the August 27th-28th, 2011 power outages caused by Hurricane Irene and why there are multiple references to a package of capabilities and equipment that can deal with hurricanes, power outages, earthquakes, locusts etc (glad we’re covering our Biblical bases too).
It seems that after the Hurricane Irene blackouts, Clinton may have reached out to the State Department to replace her current phone because her personal email server also went down in the outage. Let’s just ignore the visible proof now (highlighted in red in the transcript) that the State Department was actually 100% aware of Hillary’s private email server at least by August 2011 – raising questions as to whether Obama actually did not know Clinton had a private email address/private server and that maybe we should be directing our legal questions of “negligence” at different people(s)?
In an effort to help Clinton get a new phone, Mull suggests two State Department issued Blackberry’s –
One for work related issues with an official state.gov email account which would “mask her identity” but would make her “subject to FOIA (Freedom of Information Act) requests” *We will talk about FOIA a lot more in Controversy #1*
And a second phone “which would just have phone and internet capability”, which she is free to use for personal correspondence.
Isn’t this the perfect compromise solution?
Not to Huma Abedin – in fact this setup to her “doesn’t make a whole lot of sense”
She does not explain her line of thinking anymore in the emails. But could it be that even this compromise scenario, where Clinton could do whatever she wanted on one phone, but on the other only be subject to same Freedom of Information requests from Congress, the courts or citizen groups as every other public official, would be an unacceptable arrangement for them?
Her second paragraph talks about a “comm” team trying to install equipment (which they apparently did anyway without authorization…we’re not gonna even get into this), but that the problem they were dealing with from the blackout was pretty widespread everywhere.
Stephen Mull responds thanking her for context.
Abedin responses – “its pretty silly and she knows it”
Now we’re dealing with undefined pronouns, which may work in the FBI’s favor or against, not really sure.
What is “it”?
Is “it” the equipment packages that will help her communications survive future natural disasters? Or is “it” the State Department suggestions that they provide her with two phones.
In context, it’s likely discussing the equipment packages because in Mull’s response he does not actually respond to Huma’s assertion that this arrangement “doesn’t make a lot of sense” (probably should’ve have??) and just thanks her for the context regarding what was a widespread problem after Hurricane Irene. Thus, whatever the confusion was at the State Department regarding Clinton installing new equipment somewhere was “pretty silly and she knows it.”
But in context of Huma’s response, “it’s pretty silly” might be referencing the two phone idea from the State Department which she had just said “doesn’t make a lot of sense”. Because the only thing we know for sure is that Stephen Mull’s suggestion was never adopted. Could that have been a result of both Abedin and Clinton feeling that this idea for two different phones was “pretty silly”. Does this count as “negligence” as per our definition, that this is “not what a reasonably prudent person would have done”
At this point, these all seem like contrived legal arguments based on an insinuation of facts that we don’t know (what else is the law), and this may not actually prove intent on Clinton’s part to disregard State Department security protocols. But I thought this deconstruction would be a useful exercise regardless because if nothing else we know that Hillary Clinton’s most senior aide balked at the idea of having the State Department regulate Hillary’s communications even when both sides knew that the State Department currently could not do so now.
If the Clinton legal team is willing to exploit legal ambiguities regarding “intent”and “knowing” and “negligence”…the FBI is likely to do so as well.
Okay, so now let’s ignore everything you just read in the “actively negligent” section and pretend none of those things ever happened, and there was never any willful attempt on Clinton’s part to be “negligent”.
(2) Passively negligent
So is there anyway the FBI can prove that Hillary Clinton’s lack of action regarding securing classified information of the government has risen to a legal level of “negligent”
Well how secure was her private email server?
CLINTON: Well, the system we used was set up for President [Bill] Clinton’s office. And it had numerous safeguards. It was on property guarded by the Secret Service. And there were no security breaches.
However, those briefed on the setup of her email server say the device that was installed for Bill Clinton was determined to be too small for the addition of someone about to be Secretary of State. Instead, a server that had been purchased for use by Hillary Clinton’s 2008 presidential campaign was installed at the Chappaqua home in New York.
Clinton has so far refused to answer questions on how well her system was secured, the types of safeguards on her server and whether, or how frequently, security updates were applied.
If anyone read my blurb about working at Sandia Labs this summer, we should wonder whether her private email system had a similar dialogue box that forced her to answer if any information in her email was classified every time she sent one. That seems to be one of the fundamental safeguards the government has implemented in its email systems to track the flow of sensitive information. If her email server didn’t contain that safeguard…should we be surprised that none of her emails were marked classified, because maybe it wasn’t even technologically possible for them to be marked the way her server was set up?
This is what we know for sure – Hillary Clinton did not encrypt any of her emails for the first three months as Secretary of State.
Once Hillary turned over her server to the FBI in August 2015, reports began to emerge in October that her private email server was extremely vulnerable to hacking attempts because the server permitted remote-access connections directly over the Internet.
After scanning the “clintonemail” domain, a private cybersecurity firm found that from January 2009 – March 2009 the domain had no digital certificate issued by an authority, which shows a site is secured. Without what’s called an “SSL” certificate, data flows through in the form of plain text. This means all web browser, smartphone and tablet communications would not have been “encrypted“, which allows any hacker to read those communications, and worse could “trick an unsuspecting user of the site to hand over their username and password or other sensitive information”
Marc Maiffret, who has founded two cybersecurity companies, called her set up “total amateur hour” and that “real enterprise-class security, with teams dedicated to these things, would not do this.”
“An attacker with a low skill-level would be able to exploit this vulnerability,” said the Homeland Security Department’s U.S. Computer Emergency Readiness Team in 2012
The State Department couldn’t confirm the date of the first email sent using this system, but the Clinton’s email domain wasn’t issued an SSL certificate until March 29th, 2009. During those three months, Clinton’s travel logs show that she visited China, Indonesia, Egypt, Israel, Japan and South Korea.
When asked by a reporter from the Boston Globe, “what safeguards did you put in place to make sure that you weren’t hacked?” Clinton responded – “Well, I can only tell you there is no evidence that I’m aware of that I ever was. ”
c) that the damages were caused (“proximately caused”) by the negligence.
Sure enough, there were at least two notable hacking attempts into her server.
One in 2011 from Russia and a second one in 2012 from Serbia. The Russia one is great – they sent her 5 different emails as fake parking citations which were phishing scams that would collect data off her server if she opened them (which is funny because she hasn’t driven since 1996, apparently). But if it makes Clinton feel any better, I also failed the Sandia Labs routine phishing test by opening a fake email they sent me (they got me really good). Maybe that’s why we have these safeguards to begin with.
Beyond just the two hacks, there are now reports of dozens more. Some even originating from allies like China, South Korea and Germany. There are even specific reports that Asian governments were reading Clinton’s information during the 2/3 month window when her server did not have an SSL certificate and she was traveling across the region.
While it might be easy to say that Clinton is “not the most tech savvy“, given the the history of cybercrime and hacking, it was certainly a concern that she had to be briefed on as Secretary of State.
It’s not a secret to anyone that foreign governments and groups are constantly trying to hack into US systems to find out our government secrets. Maybe that’s why its not surprising that one of the worst hacks in US history hit the State Department one year after she left as Secretary. The CIA was actually forced to pull federal agents out of China after the hack to keep agents safe.
What kind of information were the Russians, Serbians, Chinese, South Koreans, Germans and who ever else, getting access to from Hillary Clinton’s private email server? And what risk, if any, did it potentially put federal agents out in the field in during her time as Secretary of State?
How difficult will it be for the FBI to make the case that Hillary’s unsecured private server can be considered a “negligent handling of classified information”? That her handling of official communications exposed US secrets, including information about the identity of a US intelligence operative, to foreign governments and organizations that want to attack American interests.
But I haven’t even mentioned what might actually be the FBI’s strongest argument to indict her under this statute. We have completely ignored the section of 1924 which says that classified information should not be retained “at an unauthorized location“!! Clinton’s team will obviously argue to the contrary , but all of that will be covered when I address Controversy #1, as to whether the existence of the private server was illegal itself.
I don’t believe she will win on that issue either.
Wrapping up what I think is her likely indictment of Section 1924, intent of being aware of classified information is not the only legal issue at stake! And more importantly, Section 1924 is just a misdemeanor – what I think a grand jury could also find her guilty of is a felony.
(2) Title 18 U.S. Code § 793 (Felony)- Gathering, transmitting or losing defense information
The FBI will argue to the DOJ that she violated two sections of this statute.
First is Section D which is part of the Espionage Act – this is what I believe she will be indicted for
(d) Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it; ….. Shall be fined under this title or imprisoned not more than ten years, or both.
FBI’s Side: They will make two points here regarding Hillary willfully communicating information to someone “not entitled to receive it”
(1) Hillary Clinton’s communications with Sidney Blumenthal
Sidney Blumenthal is arguably the most important character in the Hillary Clinton email scandal outside of Hillary herself.
After Clinton turned over all her work-related emails to the State Department and Benghazi investigation in December 2014, it was revealed that she had extensively corresponded with someone by the name Sidney Blumenthal during the attacks.
Sidney “Sid” Blumenthal was a former journalist at the New Yorker who became one of the Clinton’s closest aides and confidants in the 1990’s during Bill Clinton’s administration. At the time of the Benghazi attacks, Blumenthal was not a State Department employee, despite having tried, he worked at the Clinton’s large non-profit organization – The Clinton Foundation.
After his correspondence with Clinton came to light, Blumenthal was summoned to testify before the Congressional Benghazi committee in June 2015. In a closed door meeting with the committee members, Blumenthal turned over 60 emails that he had exchanged with Hillary Clinton. The transcript of this closed-door meeting has not been released. Once the Benghazi committee crosschecked the emails that Blumenthal turned over to them with the ones Clinton had handed over to the State Department, they found that she had not turned over nine emails and portions of six others – 15 emails in all were unaccounted for.
How are these 15 emails from Sidney Blumenthal missing from the 55,000 pages of emails Clinton turned over? The State Department has admitted to not having these emails from Blumenthal in their records after the Benghazi committee gave it to them. Did Hillary Clinton erase these Benghazi-related emails from her private server before turning everything over?
We could not know the answers to these questions until September 2015, when the State Department released a new 1,500 pages of Clinton’s emails. These emails were previously undisclosed to the Benghazi committee.
So did Hillary Clinton’s missing emails with Blumenthal contain sensitive information relating to the Benghazi attacks, or any other issue?
It seems like it.
One analysis has found that at least 23 messages between Clinton and Blumenthal contain potentially classified information. Blumenthal in fact prefaced many of his intelligence memos to Clinton by saying they came from “an extremely sensitive source” and the information “should be handled with care.” This throws into doubt Clinton’s argument that she did not know information was classified because it was not “marked classified”. Seven emails between her and Blumenthal have had select paragraphs, and even entire pages redacted. This June 2012 memo about Germany has been completely redacted, and this September 2012 memo has even the subject line hidden.
Blumenthal’s memos about Libya mostly dealt with intelligence surrounding the country’s 2011 civil war, but many reveal how he solicited Clinton’s support in pushing his business ventures. In an April 2011 memo, Blumenthal suggests that the new Libyan government hire private security firms for training, protection and medical supplies. He suggested that his own firm, Osprey Global Solutions, broker these deals. Clinton forwarded these emails to her aides and said “the idea of using private security experts to arm the opposition should be considered.” In August 2011, Osprey Global Solutions signed a contract with the new Libyan government to provide these services.
Blumenthal also suggested that America more intensively support the Libyan rebels by sending A-10 “Warthog” aircraft instead of Predator drones. The United States did in fact deploy six A-10s as part of Operation Odyssey Dawn in the coalition bombing to topple the Gaddafi regime.
There is no evidence from the emails provided that Blumenthal’s suggestion directly translated into State Department policy. If the FBI retrieves any emails from her “wiped” server that reveal this to be true, it is a violation of foreign lobbying laws and Clinton could be charged with public corruption. If the FBI recovers any other deleted emails which are found to contain work-related information, she could be charged with tampering of evidence and an obstruction of justice.
However, the most incriminating email from Blumenthal to Clinton is a memo where he reveals the name of a CIA intelligence operative in Libya. In a March 2011 memo, Blumenthal wrote “Tyler spoke to a colleague currently at the CIA, who told him the agency had been dependent for intelligence from [redacted due to sources and methods].” Clinton forwarded this email to one of her aides. (“Tyler” is Tyler Drumheller a former CIA operative who left and joined a private consulting firm)
This is indisputable proof that Hillary Clinton not only possessed classified information, even if it was not marked classified, but willfully transmitted it to others. This information falls under the purview of a 2009 Non-Disclosure Agreement Clinton signed which stipulates that “classified information is marked or unmarked classified information” and would be considered “born classified” information. John Rizzo, a former general counsel at the CIA, said of the memo “it’s the most sensitive kind of classified information — the identity of a human source.”
“This is a serious breach of national security,”retired Army Col. Larry Mrozinski said, and “a clear violation of the law.”Anybody else would have already lost their security clearance and be subjected to an espionage investigation.”
Clinton, by law, was supposed to report this improper disclosure of classified information to Department of State Inspector General. But interestingly during her tenure, there was no Inspector General for the State Department, the longest there had been an absence in that position since 1957. Clinton is one of ten members of the US government which determines what is classified information, yet still forwarded this email to one of her aides – debunking her claim that she never sent classified information through her private server.
If the FBI concludes that the identity and location of this individual was authentic, then Sidney Blumenthal, an employee of the Clinton Foundation, was sending highly classified information from his AOL account to the Secretary of State’s private e-mail server – even though he was never given a security clearance to deal with such sensitive information in the first place. Something explicitly forbidden in the 2009 Non-Disclosure agreement which says that any information sent has been “verified that the recipient has been properly authorized by the United States Government to receive it”. This qualifies as a violation of Section 793 of US Title 18 for transmitting information “of the national defense” to someone “not entitled to received it.” The punishment is a fine and up to 10 years in prison.
Sidney Blumenthal is currently a narrator on CNN’s “Race to the White House” original series.
We will actually return to Blumenthal when we discuss what really happened in Benghazi. Here to skip ahead if you like.
(2) Hillary Clinton transferring her data to Platte River Networks
There is a second interesting revelation regarding communicating sensitive information to someone not entitled to receive it. Get ready for this one.
After Hillary stepped down from Secretary of State in February 2013, she chose to upgrade her private email server. In June 2013, a small IT company in Denver called Platte River Networks won a contract to provide information technology services to Bill and Hillary Clinton, which included taking possession of Hillary’s email server while she was Secretary of State. The role of Platte River Networks was to “upgrade, secure and manage the e-mail server for both the Clintons and their staff beginning June 2013.”
This was a huge contract for a company that had actually never held a federal contract before, had no prior relationship with the Clintons, and who’s most notable accomplishment at the time was winning the 2012 Denver Metro Chamber of Commerce’s Small Business of the Year award.
Jim Zimmerman, who worked as a field engineer at Platte River from 2010 to 2013, said he recalled a staff meeting where company executives announced they had won the Clinton contract. They told employees that it was a “private job” and asked that they keep word of the work quiet.
Zimmerman said the executives did not describe how their Denver company had won the work, but he noted that they seemed pleased.
“Who wouldn’t be?” he said. “We were a small company.”
In June 2013, the company took Clinton’s server from her home in New York and transferred it to a secure facility in New Jersey. It was here the data from her original server was “migrated” to a new server for the purpose of making the transition to Platte River Networks.
Unsurprisingly, Platte River Networks did not have clearance to handle classified government information. A spokeswoman for an agency within the Defense Department that vets companies for security clearances said her office had not extended one to Platte River Networks. And the company has admitted that as far as it knows their employees never held formal government-issued security clearances. And let’s also not forget, that one of the “worst hacks in US history” came after she left the State Department. Which means her email server was in their hands. The State Department informed Platte River of the attempted attacks into their server from China in February 2014, Korea in March of that year and Germany in June of that year
Given that we know (“know”) there is top secret information contained on this server, and there is an exchange which proves that she is aware that sensitive information could come to her email; is her decision to upgrade her server at the hands of a company not cleared to handle classified information, especially when that information was getting hacked into, evidence of her willfully transmitting information of the national defense “to any person not entitled to receive it”?
Seems like it to me.
We’re actually not done with Platte River Networks, they will be re-visited when we ask why Clinton deleted her emails because several Platte River employees have gone on the record saying they actually feared a cover up when the FBI became interested in their server. Suffice it to say, this arrangement with the Clinton’s has not worked out in the company’s favor. The company’s VP said since the outbreak of the scandal they have repeatedly received death threats and phone calls from screaming strangers. The company has removed from biographies of its executives on their Website as well as testimonials from some of its customers, and has hired a crisis-communications expert.
Clinton’s Side: The Clinton defense against Section 793(d) will rely primarily on a 1941 Supreme Court case which challenged whether the phrase “national defense” in the Espionage Law was too vague and over-broad.
“we find no uncertainty in this statute which deprives a person of the ability to predetermine whether a contemplated action is criminal under the provisions of this law. The obvious delimiting words in the statute are those requiring intent or reason to believe that the information to be obtained is to be used to the injury of the United States, or to the advantage of any foreign nation. This requires those prosecuted to have acted in bad faith.”
So unless the FBI can prove that Hillary was purposefully acting to retain, transmit or delete information that can be “used to the injury of the United States, or to the advantage of any foreign nation”, the information she handed over to Platte is okay.
I think the FBI will be able to do that.
Not only has the State Department said there are emails at the highest level of classification which I’m interpreting to be information “to the injury of the United States”; but Hillary Clinton also knowingly transmitted classified information relating to the national defense “that would be used to the advantage of any foreign nation.” A fact made clear by her correspondence with Sidney Blumenthal in revealing the name of a CIA intelligence operative. But as you will see, there is an email which contains information that implicates a US ally in being responsible for the attack that killed 4 Americans at the US consulate in Benghazi. She has either deleted that email, or has it on her original private server (and illegally migrated it to the Platte River Networks server), but it is now in the hands of the State Department who is refusing to release it to the public.
As per the other charges in Section 793(d), here is Ruth Marcus the Harvard Law graduate and Washington Post writer mentioned earlier
Another possible prosecutorial avenue involves the Espionage Act. Section 793(d) makes it a felony for a person entrusted with “information relating to the national defense” who “willfully communicates, delivers [or] transmits” it to an unauthorized person. That might be a stretch given the willfully requirement.
The Clinton team will have to argue that she did not “willfully” transmit classified information to Platte River Network. I think we are all interested to see that explanation, there could very well be a great one that I haven’t thought about. To be fair, I’m not sure Ruth Marcus made these comments having even known about the Platte River Networks contract.
Nick Merrill, a spokesman for Hillary Clinton, declined to comment on questions about Platte River Networks and its selection to take over Hillary’s email server.
But here is Clinton’s best argument in the whole case. And the revelation of which has made many believe the email scandal is overblown.
Clinton’s best argument is that previous Secretaries of State have ALSO willfully sent classified information on a private email. They were not indicted, or had any inquiry raised into their emailing practices. Raising the point that “the private-email problem is not a Hillary Clinton problem. It’s a governmentwide problem that’s existed since the advent of email itself.”
I don’t know how exactly that argument will be viewed in a court, because what if they all did something wrong! And yes, we should have an inquiry into the email practices of Condoleezza Rice and Colin Powell, and their actions in no way excuse Clinton’s. Three wrongs don’t make a right.
But the better answer is that none of the sensitive emails Powell or Rice sent, that have now been retroactively classified, are considered Special Access Program, Top Secret, or Special Compartment Information (or even close). Colin Powell in fact had only two of his emails be retroactively classified, while Clinton has had thousands. Only Hillary had information that the government considers its highest secrets. This is charge unique to her, and why her emails especially implicate information “of the national defense.” Let’s also put it out there that Rice and Powell had a state.gov email and a personal account, whereas Hillary put everything exclusively on her personal email. On a personal server. This is why PolitiFact has rated her claim that what she did was similar to previous Secretaries to be – mostly false.
Perhaps most damningly was when current Secretary of State John Kerry was asked by Congress a month ago if he would use or allow his staff to use a private server to send and receive classified information. This is what he said:
“In today’s world, given all that we’ve learned and what we understand about the vulnerability of our system, we don’t do that, no. ”
The last violation of Section 793 is Section F –
I don’t know how likely it is that she will be found guilty of this.
(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer
Clinton’s Side: Here is Dan Abrams once more
Here, if it is determined that by “gross negligence” she permitted information “relating to the national defense” (as opposed to the more formal “classified” definition) “to be removed from its proper place of custody,” then she could be facing up to 10 years behind bars.
Reading this as a layperson one might think this could be an easier crime to prove. Not so.
Could an aggressive prosecutor argue that it was grossly negligent for her to run all of her emails out of her home server and that it included “national defense” information “removed from its proper place of custody?” Sure, but that would also warp the intent and interpretation of this Espionage Law without far more evidence than what we have today.
It is incredibly difficult to prove that Clinton engaged in “gross negligence” given that is currently defined legally as
“A lack of care that demonstrates reckless disregard for the safety or lives of others, which is so great it appears to be a conscious violation of other people’s rights to safety. It is more than simple inadvertence….”
It may be hard to prove that in court. But remember how insecure her private email server cybersecurity experts have deemed it to be? Remember that she tried to change State Department protocols to bring an insecure phone into a secure facility? Remember that she was discussing highly classified information from someone outside the government entirely? Remember that all the data handled by a nation’s Secretary of State was knowingly handed over to a private company with no clearance to handle potentially classified government information?
Could that be a lack of care that demonstrates “gross negligence” and “reckless disregard?”