More sleepless nights for Team Clinton as additional classified documents are released

The State Department has just released a batch of about 7,000 emails from Hillary Clinton’s private server. Approximately 150 of them are redacted because they contain classified information.

The classified emails deal with Haiti, China, and Sudan, among many other subjects. A preliminary analysis by Fox News, presented on Megyn Kelly’s program, found that some of the information on Clinton’s server was inherently classified. Fox’s analysts cited a memo transmitting information provided by foreign diplomats about Sudan peace talks.

As Shannen Coffin explained, because such information is substantive and comes form foreign diplomats, it is “born classified.” In other words, by its nature it cannot be other than classified, and anyone in a position of responsibility at the State Department would know this.

While we wait for more details about the new batch of classified emails, this is a good time to cite the statute that must be keeping Team Clinton up at night. 18 U.S.C. Section 793(f) provides:

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.

Note that this provision does not require that the documents in question be classified, much less marked as classified. It requires instead that they “relat[es] to the national defense.”

If a document is marked classified, it may be easier to prove gross negligence in connection with its mishandling. But an official surely can commit gross negligence by mishandling documents that relate to the national defense but that don’t have the word “classified” stamped on them.

Note too that emails from Clinton’s server that have previously been released seem very likely to relate to national security. For example, the email that reportedly triggered FBI concern, from Huma Abedin, contains classified intelligence from three U.S. intelligence agencies, including the National Geospatial-Intelligence Agency, which overseas aerial surveillance imagery.

Stay tuned.

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