Some weeks ago, I attempted a preliminary analysis of whether Hillary Clinton violated 18 U.S.C. Section 793(f). This provision states:
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.
Now, Fox News reports that “an intelligence source familiar with the [FBI] investigation of Clinton” says the Bureau is focused on whether there were violations of this very provision of the Espionage Act. The intelligence source points out that Section 793(f) says nothing about classified information, but instead is triggered by lawful possession of national defense information when a security clearance holder “through gross negligence,” such as the use of an unsecure computer network, permits the material to be removed or abstracted from its proper, secure location.
That sounds a lot like what Hillary Clinton did.
It seems beyond dispute that Hillary had possession or control of documents relating to the national defense. Indeed, some of her documents have been designated as “originally classified” which means, by definition, that their disclosure “reasonably could be expected to cause damage to the national security.”
In addition, the case seems strong that Clinton removed such information from its proper place of custody and/or delivered it to someone in violation of her trust. I would argue that having information relating to the national defense on a private server constitutes removing it from its proper place of custody.
Furthermore, Clinton apparently delivered national defense information to Sidney Blumenthal, who lacked a security clearance, thereby violating her trust. One example is a November 10, 2011 email exchange between Blumenthal and Clinton in which “the Blair option” (having to do with the Israel-Palestine “peace process,” I assume) was discussed. The document is “originally classified,” which means, by definition, that it contains information “the unauthorized disclosure of which could be expected to cause damage to the national security.”
It also seems to me (as it apparently does to Fox News’ source) that it was gross negligence for Clinton to set up the arrangement whereby national defense information ended up on her private email server. That Clinton was aware of the risks involved is clear from her warnings to State Department employees about the risk posed by hackers.
Clinton supporters have tried to make something of President Obama’s statement during a CBS interview with Steve Kroft that Hillary’s use of a private server did not pose “a national security problem.” The White House has since walked that statement back a bit.
In any event, the test under the Espionage Act isn’t whether Hillary’s email system posed a national security problem. The test is whether, through gross negligence, her use of the system permitted national defense information to be removed from its proper place of custody or delivered to anyone in violation of his trust. If Fox News’ report is true, the FBI is concerned that it did.
Obama was speaking in political terms, not legal ones. But if the legal terms put Hillary in jeopardy, then obviously she will have a political problem too.