The Washington Free Beacon reports that a day after becoming Secretary of State, Hillary Clinton signed a Sensitive Compartmented Information Nondisclosure Agreement that set forth the criminal penalties for “any unauthorized disclosure” of classified information. It had been assumed that she signed this document, but now it has been confirmed that she did.
By signing the statement, Clinton affirmed, among other things: “I have been advised that the unauthorized disclosure, unauthorized retention, or negligent handling of SCI by me could cause irreparable injury to the United States or be used to advantage by a foreign nation.”
As the Free Beacon notes, the State Department has already acknowledged that Clinton’s private email system was not authorized to handle top secret/sensitive compartmented information. And it has been determined by the U.S. intelligence community’s inspector general that Clinton received at least two emails on her personal email server that constituted top secret/sensitive compartmented information. (That determination, however, is under review and, according to Politico, a source says it will be reversed).
Clinton’s defense has been that the SCI documents were not marked as such when she received them. However, the Agreement she signed said: “I understand that it is my responsibility to consult with appropriate management authorities in the Department. . .in order to ensure that I know whether information or material within my knowledge or control that I have reason to believe might be SCI.”
Did Clinton consult with the appropriate authorities about the top secret emails she received? If not, then her lame argument — according to the Free Beacon, government security experts say that the type of information that receives a TS/SCI designation is sensitive enough that senior government officials should immediately recognize it as such — becomes even weaker. Indeed, even if the government reverses its determination that the emails were TS/SCI, the fact that they were initially deemed to be shows that Clinton should have raised the question with appropriate management authorities.
Brendan Bordelon at NRO argues that the legal significance of the Agreement Clinton lies mainly in what it shows about her intent:
The FBI is currently investigating the retention of classified information on Clinton’s server. If they find evidence that classified information was put at significant risk, they may recommend that the Justice Department pursue a criminal prosecution against the former secretary of state.
National-security lawyers have said that decision may hinge on evidence of criminal intent — an indication that Clinton understood the law and violated it anyway. The nondisclosure agreement could thus be a crucial building block of any charges Clinton faces resulting from the FBI’s investigation.
However, the awareness expressed in the form Clinton signed — both as to the risk of irreparable harm that negligent handling can cause and of the obligation to consult with authorities about whether information in her possession is SCI — might strengthen the case for “gross negligence.” And documentary evidence that Clinton understood the law might make FBI lawyers more inclined to pursue a case against her.
Whether the administration would actually prosecute Clinton is a different question. I’m not holding my breath.
At a minimum, though, Republicans now will be able to quote the text of the Agreement that Clinton signed throughout the campaign next fall.