Washington Post offers glimpses of Hillary’s legal jeopardy

The Washington Post reported today about the latest batch of classified emails found on Hillary Clinton’s private server. The story appears at page 5 of the print edition.

The piece by Carol Leonig and Rosalind Helderman is reasonably informative and not particularly biased. (The headline in the print edition is “Clinton wrote, sent classified emails on private server;” the online edition offers a more pro-Clinton spin: “Clinton, using private server, wrote and sent e-mails now deemed classified”)(emphasis added). From it, one can glean the potential legal problems that must be keeping Team Clinton up at night.

But at times, the Post downplays Hillary’s difficulties. This passage caught my eye:

The sensitivity of the redacted information in Clinton’s e-mails is not publicly known. Government officials who have seen some of the correspondence say the conversations are generally benign. Some discuss classified programs or topics that have become well-known through public reporting, said the officials, who spoke on the condition of anonymity to describe classified information.

Actually, as I wrote yesterday, the very fact that information is redacted tells us plenty about its sensitivity. Moreover, it’s neither surprising nor important that “the conversations are generally benign.” The ones that aren’t benign are the ones that matter because they (a) may well have compromised our national security and (b) put Clinton in legal jeopardy.

Finally, it’s no defense to say that Clinton discussed classified programs or topics that “have become well-known through public reporting.” The information wasn’t well known to the public when Clinton discussed it.

Ironically, State Department spokesman Mark Toner has made an argument that’s the opposite of the one floated by “government officials” to the Post on Clinton’s behalf. Toner said that information can become classified after it originates by virtue of subsequent developments that give it heightened importance. The implication is that even though documents are now deemed classified, they might not have merited classification at the time Clinton sent or received them.

That’s possible in theory. But the much more common scenario is for information to become less sensitive over time. That’s why eventually it can be declassified.

In any event, Toner’s scenario is inapplicable to the documents that put Clinton in legal jeopardy. These documents contain “foreign government information.” Thus, under Executive Order 13526, far from becoming classified due to subsequent unexpected developments, they were “born classified.”

This becomes clear towards the end of the Post’s report. Discussing an email from Clinton to Melanne Verveer, her ambassador for global women’s issues, Leonig and Helderman write:

Like other e-mails, it was withheld based on State Department reviewers’ conclusion that it contained “foreign government information” and “foreign relations or foreign activities of the United States, including confidential sources.”

Though Leonig and Helderman don’t say so, the fact that this was “foreign government information” has potentially devastating legal consequences for Clinton under 18 U.S.C. Section 793(f) and Executive Order 13526 (issued by President Obama).

The Post’s report also shows (again, towards the end) that Clinton staffers recognized the recklessness of discussing sensitive matters on a private emails server:

The e-mails offer hints that Clinton aides were attuned to the need to handle some information with care in more secure settings.

Sullivan e-mailed Clinton a day before Christmas Eve in 2010, for instance, referring to “some interesting reports from the Pal side” that had been passed along from a State Department diplomat, presumably referring to Palestinians. Sullivan suggested a discussion “if you have a moment to talk secure.”

These “hints” might help establish the recklessness (i.e., gross negligence) or even the willfulness of not using “more secure settings.” “Gross negligence” is the standard under Section 793(f). Willfulness is the standard under Section 793(e).

Stay tuned.


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