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Tuesday, January 09, 2018
Restoring the Rule of Law to the Protection of Classified Information
By Andrew C.
In the Clinton-email case, her intent, regardless of her motive, was clearly criminal.
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.
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.
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
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.
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.
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.
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.
is no requirement to prove an intent to harm the United States.
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 wantthat 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.
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.
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.
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
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
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.
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
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.
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
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.