Hillary Shoulda, Coulda, Woulda Followed the Law

Campaigning in Iowa, Hillary Clinton employed a typical dodge in discussing her email server scandal:

[T]here are disputes going on, among agencies, about what shoulda, coulda, woulda, been done back four years, five, six years ago….

Ah, yes, the endless second-guessing to which poor Hillary is subjected! And it’s about ancient history, too, when she was Secretary of State. Who can remember back that far?

Well, for starters, Hillary shoulda, coulda, woulda obeyed the law, specifically 18 USC § 1924, which makes it a crime, punishable by up to one year in prison, to “remove[] [documents or materials containing classified information] without authority and with the intent to retain such documents or materials at an unauthorized location.”

Hillary also shoulda, coulda, woulda obeyed State Department policy, which required official email correspondence to be conducted using the Department’s accounts on the Department’s servers.

Hillary has no defense with regard to Department policy, but she is trying to avoid indictment–don’t laugh, Gen. David Petraeus and former National Security Advisor Sandy Berger were convicted of crimes for what appear to be far lesser violations–with this claim:

I am repeating the facts, and the facts are, I did not send, nor did I receive, material marked classified.

This is the point that Hillary insists on, over and over: her email messages were not “marked classified.” In other words, the information in them may have been secret, but if the word “classified” wasn’t stamped on them, she didn’t commit a crime.

It is easy to see why her lawyers have tried to erect this firewall. 18 USC § 1924 refers to “classified information of the United States.” What is that? Section 1924(c) defines the term:

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.

Hillary’s position evidently will be that a document hasn’t “been determined pursuant to law or Executive order to require protection” unless it is stamped “classified.” Will this theory work? It certainly shouldn’t. Hillary, as Secretary of State, was authorized to classify documents and was charged with knowledge of what should be kept secret. It would be ridiculous to say that she can store and disseminate secret information, as long as she doesn’t stamp it “classified” first.

There probably are multiple executive orders relating to classification of documents, but Executive Order 13526, promulgated on December 29, 2009, is a basic one that covered Hillary’s tenure as Secretary of State. It sets forth a “uniform system for classifying, safeguarding, and declassifying national security information.”

Executive Order 13526 defines three levels of classification: top secret, secret and confidential. All constitute “classified information of the United States” within the meaning of 18 USC § 1924. Left unresolved by that statute and the executive order, as far as I can see, is whether information that should be classified because the information it contains is secret and its dissemination could be damaging to the United States, but isn’t marked “classified,” can be kept in an unauthorized location. Again, this would be a silly interpretation when applied to someone like a Secretary of State who has the authority to classify and is charged with knowing what should be classified. There likely are other statutory provisions, orders or case law that would shed light on this question.

The claim that Hillary never sent or received classified information–not even confidential information–during her four years as Secretary of State seems ludicrous. One would think that just about everything a Secretary of State sees is confidential. If the State Department makes a practice of not stamping anything “classified,” which of course no one has alleged, does that absolve the Secretary and others from following the normal rules relating to protection of secrets? One would think not.

As I understand the case against General Petraeus, the principal classified documents that he kept at his home were his own war journals from Iraq and Afghanistan. There may have been other documents as well, but I haven’t seen news accounts that make this clear. Were those journals stamped “classified”? I haven’t seen anything that answers that question, although the bill of information against Petraeus does not say that they were.

Additional research may answer the question definitively, but for now it appears clear that Hillary is standing on a very narrow, and not very sensible, legal theory: it doesn’t matter how secret the information she handled may have been, as long as neither she nor someone else stamped a particular document “classified.” It would be interesting to compare that theory with the State Department’s practice in responding to Freedom of Information Act requests over the last six years. I am quite certain that the Department has not taken the position that every document that the Secretary of State has seen or created via email can be freely provided to FOIA requesters, since nothing the Secretary sees or does is secret or confidential.

Then, of course, there is the issue that Paul wrote about on Thursday: Hillary’s team may have scrubbed classification markings from the electronic copies of documents that were on her server. Such removal would itself be a felony, and it doesn’t make sense to me that anyone would do it, since other copies of the documents located elsewhere in the State Department system would show classification markings. So I would think such an effort would be both futile and self-incriminating.

The legal issues surrounding Hillary’s defiance of common sense, State Department rules and, very likely, federal statutes and executive orders relating to handling of secret information, will continue to percolate for months to come.