Form SF-312 and its potential consequences for Hillary Clinton

Back in March, as the Hillary Clinton email scandal heated up, the question arose whether Clinton executed Form OF-109 when she left the State Department. This is the form in which a departing official certifies, under penalty of perjury, that she has “surrendered to responsible officials all unclassified documents, and papers relating to the official business of the Government acquired by me while in the employ of the Department” (emphasis added).

Hillary indisputably did not surrender all such documents when she moved on from the State Department. Thus, as we noted (per Shannen Coffin), if Hillary signed this form, she’s vulnerable to the charge of perjury.

The State Department searched its records and announced that it found no OF-109 executed by Clinton. Although it seems mildly scandalous that Hillary wouldn’t follow required exit procedures, this aspect of the story naturally faded away.

But there’s another form Clinton was required to sign when she departed — SF-312. Unlike OF-109, this form pertains to classified documents. In fact, it’s a document signed by anyone who has been granted access to classified information, including government employees, military personnel, political appointees, and elected officials.

SF-312 includes, but as we shall see is not limited to, an acknowledgement to be signed upon departure that the individual has turned over all of the classified information in her possession before leaving. This is the statement the individual signs at the time of departure:

I reaffirm that the provisions of the espionage laws, other federal criminal laws and executive orders applicable to the safeguarding of classified information have been made available to me; that I have returned all classified information in my custody; that I will not communicate or transmit classified information to any unauthorized person or organization; that I will promptly report to the Federal Bureau of Investigation any attempt by an unauthorized person to solicit classified information, and that I (have) (have not) (strike out inappropriate word or words) received a security debriefing.

Chuck Ross of the Daily Caller reports that the Senate Judiciary Committee has sought the SF-312 forms of Clinton and her key staffers. The Department reportedly agreed to turn them over by early September, but has not yet provided them. According to Ross, it has declined to say, at least publicly, whether they exist.

There is no longer any doubt that Hillary failed to turn over all of the classified information in her possession before she left the State Department. She now argues only that she possessed no information marked classified when she departed.

As Ross points out, however, SF-312 renders this argument moot. It states:

As used in this Agreement, classified information is marked or unmarked classified information, including oral communications, that is classified under the standards of Executive Order 13526.

What are the penalties for violating the agreement to return documents? The form states: “If I do not return such materials upon request, I understand that this may be a violation of sections 793 and/or 1924, title 18, United States Code, a United States criminal law.”

Since the individual is required to return documents “upon the conclusion of my employment or other relationship with the Department or Agency that last granted me a security clearance or that provided me access to classified information,” it seems to me that the conclusion of employment operates as a “request” for the return of the classified materials.

So far, I’ve focused only what the individual signs upon departure. What she signs at the front end, in order to gain authorization to receive classified material, is even more potentially damaging to Clinton.

By signing Form SF-312, the official acknowledges that “unauthorized disclosure, unauthorized retention, or negligent handling of classified information by me could cause damage or irreparable injury to the United States or could be used to advantage by a foreign nation.” (Emphasis added)

This makes it nigh impossible for Clinton persuasively to downplay the importance of her unauthorized retention of classified material.

And keep in mind that by transmitting classified information to her lawyers, Clinton may have engaged in unauthorized disclosure as well as unauthorized retention. Unauthorized disclosure has particularly serious consequences because by signing Form SF-312, the individual acknowledges:

I have been advised that any unauthorized disclosure of classified information by me may constitute a violation, or violations, of United States criminal laws, including the provisions of sections 641, 793, 794, 798, *952 and 1924, title 18, United States Code; the provisions of section 783(b}, title 50,
United States Code; and the provisions of the Intelligence Identities Protection Act of 1982.

I recognize that nothing in this Agreement constitutes a waiver by the United States of the right to prosecute me for any statutory violation.

Sounds like some heavy duty legal jeopardy.

Hillary Clinton must have signed SP-312 because, as I understand it, this is the document that goes along with security clearance. By contrast, OP-109 (again, according to my understanding) is a form one signs upon leaving the department. I can imagine Clinton unilaterally dispensing with this requirement — a less important one because it relates to unclassified material.

But the basic acknowledgments of SP-312 are signed at the front-end, when one gets cleared. Yes, there’s an acknowledgement one signs at the back-end regarding return of documents. But the core acknowledgements are made up-front and must have been executed by Clinton and her aides.

They seem sufficient potentially to land Hillary in plenty of hot water.