February 29, 2016
State Department says none was marked classified during Clinton’s tenure
261 of the newly released emails contained classified information
Monday’s release marks the 14th and final batch of Clinton emails
WASHINGTON At least 2,079 emails that Hillary Clinton sent or received contained classified material, according to the State Department’s final update from its review of more than 30,000 emails.
The State Department released a new batch of 3,871 pages of Clinton’s emails Monday evening in response to a court order. Of those, 261 contain classified information. Most were at the confidential level, which is the lowest level of classification. Twenty-three of them were at the Secret level.
None of Clinton’s emails was marked as classified during her tenure, State Department officials say, but intelligence officials say some material was clearly classified at the time. Her aides also sent and received classified information.
Clinton, running a tough race for the Democratic nomination for president, has been under fire for months for exclusively using personal email routed through a private server while serving as the nation’s top diplomat. The FBI launched an inquiry into the handling of sensitive information after classified information was found in some.
In response to a public records lawsuit, the State Department is releasing Clinton’s emails monthly after partially or entirely redacting any containing sensitive U.S. or foreign government information. It has released 52,402 pages of emails.
According to the Republican National Committee, 2,063 emails were found to contain classified information on “foreign relations or foreign activities of the United States, including confidential sources;” 1,478 were found to contain classified “foreign government information” and 28 emails were found to contain classified information on “intelligence activities (including covert action), intelligence sources or methods, or cryptology;” and 4 emails were found to contain classified information on “vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security.”
Three weeks ago, the State Department designated 22 of previously reviewed emails “top secret” – the first time it has deemed any of Clinton’s emails to be classified at a level that can cause “exceptionally grave” damage to national security if disclosed. The 22 emails will not be released to the public. The department is releasing other classified emails with some redactions.
Clinton’s campaign has refuted the “top secret” designation and demanded that all of Clinton’s emails be released to the public.
The State Department inspector general said recently he had discovered that former Secretary of State Colin Powell and former Secretary Condoleezza Rice’s aides had classified information in their personal emails. Powell has rejected those allegations.
The State Department had been ordered by a federal judge to release all of Clinton’s emails in January in response to a public records lawsuit. But the State Department said it would be unable to meet that deadline. Monday’s release was the 14th and final release.
Smoking Gun: Email Suggests Hillary Broke Law
Clinton instructed an aide to remove the classification marking from information, a federal offense
The latest batch of Hillary Clinton emails released by the State Department early Friday contain what may be the smoking gun that forces the Justice Department to charge the former secretary of state with a crime, according to former federal prosecutor Joseph diGenova.
“This is gigantic,” said diGenova. “She caused to be removed a classified marking and then had it transmitted in an unencrypted manner. That is a felony. The removal of the classified marking is a federal crime. It is the same thing to order someone to do it as if she had done it herself.”
On the June 17, 2011, email chain with senior State Department adviser Jake Sullivan, Clinton apparently asked Sullivan to change the marking on classified information so that it is no longer flagged as classified.
Clinton, using her private email server, asks for “the TPs,” apparently a reference to talking points being prepared for her. Sullivan, who is using his official State Department email, responds, “They say they’ve had issues sending secure fax. They’re working on it.” Clinton responds, “If they can’t, turn into nonpaper w[ith] no identifying heading and send nonsecure.”
It’s not clear if Sullivan actually followed through on Clinton’s orders. But if he did, it may expose Clinton to serious legal jeopardy.
“This makes it impossible for the bureau not to recommend charges,” diGenova said of the FBI. “This makes it impossible not to go forward, and it certainly ties the hand of the attorney general.”
Some have speculated that while the FBI may recommend charges, Attorney General Loretta Lynch might try to avoid doing so for political reasons.
The revelation also appears to put the lie to Clinton’s claim that she never handled classified information on her server.
“I did not send nor receive anything that was classified at the time,” she has claimed. By instructing her aide to send her material marked classified, it is clear that she not only may have received classified information, but that it was indeed “classified at the time.”
“This means that when she said, ‘I never received anything marked classified,’ she in fact did,” diGenova said.
David Bossie, president of the watchdog group Citizens United, said the email could become the emblem of Hillary’s email scandal.
“It proves that Hillary Clinton affirmatively instructed senior staff to send classified data to an unsecured server,” he said. “With that, it cements into history, much like the famous Bill Clinton finger wag.”
Eight Laws Hillary Clinton Could Be Indicted For BreakingSource: http://dailycaller.com/2015/09/21/eight-laws-hillary-clinton-could-be-indicted-for-breaking/
September 21, 2015
As a former Justice Department official, I have, of late, been asked by both Democratic and Republican friends whether Hillary Clinton could be indicted for her email related actions. The simple answer is yes — she, and perhaps some of her senior staff, could be indicted for violating a number of federal criminal statutes. But for reasons that will be discussed later, it is unlikely that she will be.
Nevertheless, it is well worth discussing the various criminal provisions of federal law that she and others may have been violated based on mainstream news reports. Remember that news reporting can be incorrect or incomplete — and that Hillary Clinton, and anyone else involved, deserves every presumption of innocence. Also keep in mind that an indictment is not a conviction but rather the informed opinion of a grand jury that probable cause exists to believe one or more violations of federal criminal statutes have transpired.
This intellectual and legal research exercise should commence with a brief review of the basics of criminal jurisprudence: There are two elements of a criminal offense: the prohibited conduct as defined in statute; and the mens rea or mental intent of the individual or individuals engaging in the prohibited conduct. Thus, to gain a conviction on a criminal count in an indictment, a prosecutor must prove beyond a reasonable doubt that: (1) the prohibited conduct occurred, (2) the prohibited conduct was undertaken by the defendant, and (3) the defendant had the requisite mens rea or intent at the time.
1.) 18 U.S. Code § 793 – Gathering, transmitting or losing defense information
18 U.S. Code § 798 – Disclosure of classified information
A federal prosecutor would naturally focus first on the most serious allegations: willfully transmitting or willfully retaining Top Secret and Compartmented (TS/SCI) material using a private server system. The individual who transmits and the individual who receives and retains TS/SCI information on a private server jointly share the culpability for risking the compromise and exploitation of the information by hostile intelligence services. The prosecutor’s charging document would likely include felony counts under 18 U.S. Code § 793 and under 18 U.S. Code § 798 against each transmitting individual as well as separate counts against each receiving and retaining individual. Violation of either provision of the U.S. Code cited above is a felony with a maximum prison term of ten years.
The prohibited conduct is the insecure transmission of highly classified information, as well as the receipt and retention of highly classified information in an unapproved manner. The requisite mens rea is the willful commission of the prohibited conduct and the knowledge that compromised information could result in prejudice or injury to the United States or advantage to any foreign nation. Proof of intent to disclose the classified information is not required.
2.) U.S. Code § 1924 – Unauthorized removal and retention of classified documents or material
If the federal prosecutors are of a charitable disposition and an accused person has been cooperative, the felony charges under 18 U.S. Code § 793 and 18 U.S. Code § 798 may be “pled-down” to a single or to multiple misdemeanor counts under 18 U.S. Code § 1924. A misdemeanor conviction would probably result in a period of probation and a less significant fine. The prohibited conduct is the unauthorized removal of classified information from government control or its retention in an unauthorized location. The mens rea required is the intent to remove from government control or the intent to store the classified information in an unauthorized location.
3.) 18 U.S. Code § 2071(b) — Concealment, removal, or mutilation generally
To sustain a charge under 18 U.S. Code § 2071(b), a federal prosecutor need only prove that the accused transferred and held the only copies of official government records (whether classified or not), the very existence of which was concealed from government records custodians. The mens rea required is that an accused knows that official government records were transferred or removed from the control of government records custodians. Violation of 18 U.S. Code § 2071(b) is a felony with a maximum prison term of three years.
4.) 18 U.S. Code § 641 – Public money, property or records
Again, if the federal prosecutors are of a charitable disposition and accused has been cooperative, the felony charges under 18 U.S. Code § 2071(b) can be “pled down” to a misdemeanor under 18 U.S. Code § 641. The prohibited conduct is the conversion of official records (whether classified or not) to the accused’s exclusive use and the mens rea is simply the intent to do so. Conviction on the lesser misdemeanor charge would likely result in a period of probation and the imposition of a fine.
5.) 18 U.S. Code § 1505 – Obstruction of proceedings before departments, agencies, and committees
If it can be proven that an accused destroyed, withheld, or concealed the existence of official records being sought under subpoena by a committee of Congress, the accused can be convicted of obstruction under 18 U.S. Code § 1505. The prohibited conduct includes destruction, concealment and withholding of documents, thereby impeding or obstructing the committee’s rightful pursuit of information. The mens rea is knowledge of the committee’s interest in obtaining the official records in the accused’s custody or control. Violation of 18 U.S. Code § 1505 is a felony with a maximum prison term of five years.
6.) 18 U.S. Code § 1519 — Destruction, alteration, or falsification of records in federal investigations
If it can be proven that an accused knowingly concealed the existence of official records being sought by the Department of State Inspector General (DOS/IG) or by the Federal Bureau of Investigation (FBI), such accused can be convicted of obstruction. The prohibited conduct is the concealment and withholding of documents that impede or obstruct an investigation. The mens rea is the intent to conceal or withhold. Violation of 18 U.S. Code § 1519 is a felony with a maximum prison term of twenty years.
7.) 18 U.S. Code § 1031 — Fraud against the United States
18 U.S. Code § 1343 – Fraud by wire, radio or television
18 U.S. Code § 1346 — Definition of “scheme or artifice to defraud”
18 U.S. Code § 371 – Conspiracy to defraud the United States
If it can be proven that an accused arranged for the Department of State to hire an Information Technology (IT) specialist to primarily administer and maintain a private server system owned by the accused, then the accused can be convicted of conspiracy to commit honest services fraud and probably wire fraud. The prohibited conduct is having the United States pay an employee salary and/or official travel funds for performing private services on behalf of accused. The mens rea is simply the knowledge of the employee’s status as a public servant and that the government was not fully reimbursed for the costs to the government of such services. The wire fraud conviction can be sought if it can be proven that accused used electronic means of communication in undertaking such scheme or artifice to defraud.
8.) 18 U.S. Code § 371 – Conspiracy to commit a federal offense
If any accused and any third party can be proven to have colluded in any violation of federal, criminal law, then all involved can be charged with criminal conspiracy as well as being charged with the underlying offense.
The old adage, that a good prosecutor can get a ham sandwich indicted, is bad news for any public servant who risks the compromise of classified information or otherwise violates any of the other federal criminal statutes listed above. Specifically, this Administration has a history of vigorously prosecuting and winning convictions in the mishandling of classified information and other criminal violations of the public trust.
However, Hillary Clinton is anything but a ham sandwich; and she knows it. She and her senior aides will not even be formally investigated by this Justice Department, much less indicted. The president will allow Hillary Clinton and her aides to “tough it out” for as long it is politically possible. However, if and when the political and public opinion costs of a “tough it out” tactic become too great, President Obama will simply use that famous pen of his to issue a succinct pardon and make formal mockery of the concept of equal justice.
Kenneth Bergquist served as a Deputy Assistant Attorney General in the United States Department of Justice during the Reagan Administration and serves now as pro bono legal counsel to the Special Operations Education Fund (OPSEC).