Washington Post Plum Line contributor Paul Waldman asserts that “Hillary Clinton is going to be exonerated on the email controversy.” He explains: “[I]n order to have broken the law, it isn’t enough for Clinton to have had classified information in a place where it was possible for it to be hacked. She would have had to intentionally given classified information to someone without authorization to have it[.]”
Waldman shows no evidence of knowing what he’s talking about. He provides no legal analysis. He appears to be spreading disinformation. Hillary Clinton may ultimately be “exonerated,” but it should not be on account of the explanation afforded by Waldman.
Waldman doesn’t cite any potentially applicable statutes. He doesn’t examine the language of potentially applicable law. He doesn’t explicate the intent required to violate laws prohibiting the mistreatment of national defense or classified information. He doesn’t even quote a knowledgeable lawyer. His post is a joke at best.
One potentially applicable provision is found in 18 U.S.C. § 793(f). This provision of the Espionage Act states:
Whoever, being entrusted with or having lawful possession or control of any document. . .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, Shall be fined under this title or imprisoned not more than ten years, or both.
Waldman to the contrary notwithstanding, the statute does not require that Clinton have “intentionally given classified information to someone without authorization to have it[.]” It doesn’t even require that the information be classified. It merely requires that the information “relate to the national defense.” Paul Mirengoff considered the possible applicability of the statute here.
Andrew McCarthy is a former Assistant United States Attorney who handled serious cases involving national security. Unlike Waldman, he knows what he is talking about. Andy summarized potentially applicable law for the New York Times in part as follows:
The laws against mishandling classified information are prosecution-friendly. For example, it is a felony for one entrusted with classified information not only to communicate it to a person unauthorized to have it, but also to enable its removal from its secure storage facility through gross negligence. It is also a crime to fail to report that information’s improper removal or communication. So is retaining materials containing classified information at an unauthorized location.
Secretary Clinton systematically conducted official business on a private unsecure system, and had subordinates do likewise, knowing the nature of their duties made classified communications inevitable. Like others with access to classified information, she signed a nondisclosure acknowledging that that this information could include “unmarked” documents and “oral communications.” At least one email finds her instructing a subordinate to remove classified markings and send a document to her via the nonsecure channel (though it is publicly unknown whether the subordinate complied). She is obviously responsible for any foreseeable wrongs committed by her subordinates using a system she set up. And she transferred the classified information on the servers to a private maintenance company and to lawyers not authorized to have it.
See also Andy’s “Rehashing talking points from Camp Clinton.”
Whether or not Waldman knows what he is talking about, he is disseminating disinformation courtesy of the Washington Post.