Did Hillary violate the law against disclosing defense information? A preliminary analysis

Last night, I suggested that, pending a review of the just-released batch of emails from Hillary Clinton’s server, we should contemplate a section of the U.S. Code that Clinton may have violated — 18 U.S.C. Section 793(f). 24 hours after the release of these emails, we can now contemplate (but not reach firm conclusions as to) how Clinton’s conduct stacks up against Section 793(f).

First, let’s again examine the statutory language:

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.

The threshold question, it seems to me, is whether Hillary Clinton had possession or control of any document relating to the national defense. The documents produced by the State Department have been heavily redacted. Thus, it’s extremely difficult to assess first hand the extent to which they relate to the national defense.

However, the very fact that the material was redacted strongly suggests, and probably proves, that they do so relate. Under the terms of President Obama’s Executive Order 13526, which I cited earlier today, any email that is “originally classified” contains by definition “information. . .the unauthorized disclosure of which reasonably could be expected to cause damage to the national security.” (Executive Order 13526, Part I, Section 1.1(a)(4)) (Emphasis added). And “the unauthorized disclosure of foreign government information is “presumed to cause damage to the national security.” (Id. Section 1.1(d)).

If anything that’s a tougher standard than “relating to the national defense.” And some Clinton email emails were originally classified (i.e., “born classified”) because they contained foreign government information. That these documents were “born classified” is clear from the date on which they will become declassified — ten years after they were originated, not ten years after they were formally marked classified.

The next question is whether Clinton removed any such information from its proper place of custody or delivered it to anyone in violation of her trust. I would think that the very act of having information relating to the national defense on a private server constitutes removing it from its proper place of custody.

One need not rely on this view, however, because it now looks like Clinton delivered information relating to the national defense to at least one person in violation of her trust. That person is Sidney Blumenthal, who was not authorized to receive classified information and, as it happened, had his email system hacked.

Sean Davis at The Federalist points to a November 10, 2011 email exchange between Sid and Hillary. The contents are almost entirely redacted, but they pertain to meetings in Berlin with Angela Merkel in which “the Blair option” (having to do with the Israel-Palestine “peace process,” I assume) was discussed. The document is “originally classified.” Again, this means it contains information “the unauthorized disclosure of which could be expected to cause damage to the national security.”

The only other question I perceive that stands in the way of Clinton having violated Section 793(f) is whether it was through gross negligence that she permitted the information relating to the national defense to to be removed from its proper place of custody or delivered to someone who shouldn’t have gotten it.

It was not ordinary negligence that caused Clinton to permit highly sensitive information to be removed from its proper place and onto Clinton’s private email servers. This strikes me as gross negligence at a minimum. Clinton herself had warned others about the prospect of private email accounts being hacked.

Nor was it ordinary negligence to deliver highly sensitive information to someone lacking a security clearance (in this case, an inveterate gossip). Such imprudence, again, seems grossly negligent or worse.

Clinton may also be in jeopardy under other subsections of Section 793. We will leave this analysis for later.

NOTE: I have changed this article slightly since originally posting it, mainly to include citations to the relevant Executive Order and to peg my analysis more closely to the language of that Order.

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