Editor’s Note: This article was first published on February 4, 2016.
LawNewz founder, Dan Abrams, penned a thoughtful legal analysis of the Hillary Clinton e-mail story that serves as an excellent guide for anyone truly interested in separating the relevant factual issues from the partisan noise surrounding the matter.
Mr. Abrams took the correct approach in focusing his analysis on differentiating between actions that might be potential violations of government policy or procedures and conduct that might be criminal in nature. However, I believe he was wrong to conclude that based on what we know today, there does not seem to be a legitimate basis for any sort of criminal charge against Hillary Clinton. At a minimum, we know enough today to sustain a misdemeanor charge of unauthorized removal and retention of classified material.
I am assuming by now anyone reading this article is already well acquainted with the basic facts surrounding Clinton’s use of a private e-mail server, so lets go straight to analyzing how her actions fall within the purview of the relevant statute.
18 U.S.C. § 1924 – Unauthorized removal and retention of classified documents or material — provides, in part:
(a)Whoever, being an officer… of the United States, and by virtue of his office… 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.
(c) In this section, the term “classified information of the United States”means information originated, owned, or possessed by the United States Government concerning the national defense or foreign relations of the United States that has been determined pursuant to law or Executive order to require protection against unauthorized disclosure in the interests of national security.
In order to satisfy the elements of this statute, one must prove Clinton knowingly removed and retained classified materials at an unauthorized location. Mr. Abrams essentially argues that the classification process is often marred by bureaucratic infighting over what is and what it not classified, so it would be unreasonable to expect Clinton to be able to figure it out on her own. Therefore, he argues, Clinton could not have acted “knowingly” because none of her emails were “marked classified” at the time she removed them.
While such an argument may seem reasonable at first blush, it is no longer believable based on the definition of “classified information” and what we now know about Clinton’s e-mails.
Section 1924 provides the definition of “classified information” as any “information originated, owned, or possessed by the United States Government concerning … foreign relations … that has been determined pursuant to … Executive order… to require protection against unauthorized disclosure.”
Executive Order 13526 sets out the standards for classifiable information as any information pertaining to “foreign governments” or “foreign relations or foreign activities” which if disclosed “could reasonably be expected to cause identifiable or describable damage to the national security.”
Finally, upon her appointment as Secretary of State, Clinton signed a classified information non-disclosure agreement in which she agreed to certain conditions and obligations in consideration of her being granted access to classified information. As part of the agreement, Clinton acknowledged receiving and understanding a “security indoctrination” concerning the nature and protection of classified information. Furthermore, the agreement stated classified information could be both “marked and unmarked” and “unclassified information that meets the standards for classification and is in the process of a classification determination….”
Based on this information, it is clear that Hillary Clinton knew or should have known that at least some of her 55,000 pages of emails were likely to contain classified information, as defined under Section 1924. Clinton was not the victim of an overzealous classification system; the fact that over 1,300 of her e-mails have now been officially “marked” classified nullifies that argument. The fact is, it is simply no longer believable to think Clinton could not have anticipated that at least some of her e-mails, regardless of marking, might contain classified information. This is true even without taking into consideration last week’s report that 22 of Clinton’s e-mails contained “top secret” information —a revelation that likely opens the door to far worse consequences for Clinton, not the least of which is running afoul with Intelligence Identities Protection Act of 1982.
Furthermore, our public officials cannot be allowed to benefit from the willful manipulation of laws in a manner that enables them to build a wall behind which they can hide from the consequences of their actions. Hillary Clinton’s willful decision to squirrel all her e-mails away on a private server reflects a blatant disregard for the laws meant to protect classified information. Giving her the benefit of the doubt in accepting the “it wasn’t marked classified argument” allows her to benefit from her own willful disregard of the law and will only encourage future public officials to do the same, or even worse.
Over the coming months Attorney General Loretta Lynch will be under an extraordinary amount of pressure. She is in the awkward position of having to potentially have to indict her party’s likely nominee to be the next president of the United States; it is a decision that will almost assuredly lead to the eventual GOP nominee winning the White House in November. Lynch must put politics aside and show the American people that no person is above the law. We may never know for sure why Clinton really decided to use this private e-mail system, but ultimately it does not matter as it relates to Section 1924. What does matter, however, is that she knowingly removed and retained classified information at an unauthorized location in violation of 18 U.S.C. § 1924 and she must be held accountable, like anyone else.
Chris White is a licensed attorney and editor at LawNewz.com.