Hillary Clinton's Felony. The federal laws violated by the private server [View all]

[leveymg]

Hillary Rodham Clinton has committed a felony. That is apparent from the facts and in the plain-language of the federal statute that prohibits "Gathering, transmitting or losing defense information", 18 U.S. Code § 793(e) and (f). This offense carries a potential penalty of ten years imprisonment.

It's called a prima facie case: clear on the basis of known facts.

It's up to prosecutorial discretion by the US Attorney as to what charges may be filed and when. Nonetheless, Mrs. Clinton is clearly chargeable for violation of federal law. As of right now, the matter is under FBI investigation. This isn't just about violation of Departmental policy.

The facts:

NYT: F.B.I. Tracking Path of Classified Email From State Dept. to Hillary Clinton

http://www.nytimes.com/2015/08/15/us/fbi-tracking-path-of-email-to-hillary-clinton-at-state-department.html?_r=0

WASHINGTON — F.B.I. agents investigating Hillary Rodham Clinton’s private email server are seeking to determine who at the State Department passed highly classified information from secure networks to Mrs. Clinton’s personal account, according to law enforcement and diplomatic officials and others briefed on the investigation.

To track how the information flowed, agents will try to gain access to the email accounts of many State Department officials who worked there while Mrs. Clinton was secretary of state, the officials said. State Department employees apparently circulated the emails on unclassified systems in 2009 and 2011, and some were ultimately forwarded to Mrs. Clinton.

They were not marked as classified, the State Department has said, and it is unclear whether its employees knew the origin of the information.

F.B.I. is also trying to determine whether foreign powers, especially China or Russia, gained access to Mrs. Clinton’s private server, although at this point, any security breaches are speculation.

Four para limit stops here. But, I will in all fairness stipulate that this article goes on to say that HRC is not at this point the target of the investigation. However, Reuters has since reported that her unsecured private server email system contained "presumed classified" materials. Hillary personally exchanged such presumed classified information with Sidney Blumenthal, and those communications were intercepted and publicly released by a Romanian hacker. http://www.aol.com/article/2015/08/21/exclusive-dozens-of-clinton-emails-were-classified-from-the-sta/21225607/

The fact that the email was not marked classified at the time does not excuse Mrs. Clinton. This is because information gathered from foreign government sources, a great deal of her email was so sourced, is presumed classified. Mrs Clinton received Departmental training on recognizing and handling classified materials. Presumed classified information is defined by Executive Order as "The unauthorized disclosure of foreign government information is presumed to cause damage to the national security." (see full text of that section of Executive Order 13526- Classified National Security Information, Sec. 1.1(4)(d), below)

Secretary Clinton was trained in handling of classified materials, and acknowledges that she understood them. By transmitting and receiving email correspondence that contained information gleaned from foreign government sources on an unauthorized, insecure system, she violated the law. This was not something she did unwittingly, and that the foreign government sourced material was not stamped classified is irrelevant.

On his last day in office, President Bill Clinton pardoned former CIA Director John Deutch who had committed similar violations. Deutch left the CIA on December 15, 1996 and soon after it was revealed that several of his laptop computers contained classified materials. In January 1997, the CIA began a formal security investigation of the matter. Senior management at CIA declined to fully pursue the security breach. Over two years after his departure, the matter was referred to the Department of Justice, where Attorney General Janet Reno declined prosecution. She did, however, recommend an investigation to determine whether Deutch should retain his security clearance.

All Deutch did was to take some classified material home with him to work his unsecured personal laptops that were connected to his home commercial internet. In other words, pretty much what Hillary did on a much larger scale.

Other, lesser, federal officials have been recently prosecuted for downloading classified materials onto private servers or media and taking them home, and they were charged and convicted even though the materials was never publicly released and they had no intention to do so or to harm the United States. Links in thread: http://www.democraticunderground.com/10141184063, see also, http://www.navytimes.com/story/military/crime/2015/07/29/navy-engineer-sentenced-for-mishandling-classified-material/30862027/ ; and, http://www.military.com/daily-news/2014/06/19/sailor-pleads-guilty-to-mishandling-documents.html


Applicable statutes and Executive Order:

1) 18 U.S. Code § 793 - Gathering, transmitting or losing defense information

Full copy of this Section of the 1917 Espionage Act is below. It has been claimed that Hillary did not violate the law because she didn't intend to injure the U.S. or aid a foreign power. However, that purpose is not required to convict under this Subsections (e) and (f) of this statute.

Subsections (a)-(d) and (g)(conspiracy) reference and require intent to injure the United States. The plain-language of Subsection (e) and particularly (f) are different:

The difference is this phrase that references purpose in the first three subsections; "with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation, Note: "is to be used"

The language in (e) is close but omits reference to purpose to injure: "he possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation". The word intent is not there. Note: "could be used"

Finally, the offense specified at (f) requires not willful action, simply a negligent action:

(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—

The differences between Sections (e) and (f) and the various other offenses covered in Section 793 comes down to the element of intent to injure the US or act to the advantage of a foreign power. These are not requisite elements of the offenses covered under these sections of the Espionage Act.

2) 1950 Federal Records Act

44 U.S. Code § 3106 - Unlawful removal, destruction of records
https://www.law.cornell.edu/uscode/text/44/3106
Current through Pub. L. 114-38. (See Public Laws for the current Congress.)

The head of each Federal agency shall notify the Archivist of any actual, impending, or threatened unlawful removal, defacing, alteration, or destruction of records in the custody of the agency of which he is the head that shall come to his attention, and with the assistance of the Archivist shall initiate action through the Attorney General for the recovery of records he knows or has reason to believe have been unlawfully removed from his agency, or from another Federal agency whose records have been transferred to his legal custody. In any case in which the head of the agency does not initiate an action for such recovery or other redress within a reasonable period of time after being notified of any such unlawful action, the Archivist shall request the Attorney General to initiate such an action, and shall notify the Congress when such a request has been made.

That law requires heads of agencies -- no exception for DOS -- to preserve and turn over all official correspondence and records to the National Archives. She didn't do that until confronted after a Romanian hacker leaked Hillary's email correspondence with Blumenthal. Those emails were clearly official not private. HRC admits to destroying at least 30,000 emails she deemed private and turned over approximately 30,000 her lawyers found to be public documents. However, a number of other emails have subsequently been turned over and analyses by news agencies. Reuters reported that a number of them to contain presumed classified information.

Hillary had also failed to provide these records to meet a FOIA request and Congressional Committee subpoena, which violates other federal laws.

Those emails and many like them were most recently found to contain "presumed classified" materials about US communications with foreign governments. That was a violation of Executive Orders, and possibly the 1917 Espionage Act that criminalizes private retention or mishandling of classified materials.

Intent to injure the U.S. or aid a foreign power is not required under Sec 793 (e) and (f). The mere fact of unauthorized removal or destruction of materials the official should have known were classified are all that is required for conviction under these parts of the Espionage Act. Hillary should have known.

Removal is obvious from the fact that she ran her private server out of her own house. There have been several recent convictions under these provisions of lower-ranking officials, as well as the forced retirement and referral to the Justice Department of CIA Director John Deutch for taking home classified materials on his personal laptop and connecting to the internet.

We know that she sent and exchanged presumed classified materials with Syd Blumenthal. Read the Reuter article linked. Bluementhal's email with Hillary on her server was intercepted and published by a Romanian hacker. That's how this whole thing came to light.

Sorry, she's done herself in, and has no one else to blame except some overzealous aides and risk-seeking lawyers.


Potential Prosecution:

At this point, the FBI is investigating the server and network history before a decision is made whether to proceed with prosecution and what charges to seek from a federal Grand Jury.

The facts are clear that she was operating her own private server and that "presumed" classified materials were shared on that unsecured device. The FBI won't come out and say she's the target until a series of decisions have been made. That Biden is signalling he's readying his candidacy tells me that probable cause exists and the system has already been found to have been breached. In fact, we know that a Romanian hacker obtained email containing presumed classified information between Blumenthal and Hillary, and that she responded to him. We also know that she was trained not to do anything like this, she acknowledges that, but she went ahead and continued to did it anyway.

This is serious, not a pseudo-scandal.

_____________________________________________
Complete copy of relevant sections of law and Executive Order

18 U.S. Code § 793 - Gathering, transmitting or losing defense information

Current through Pub. L. 114-38. (See Public Laws for the current Congress.)
https://www.law.cornell.edu/uscode/text/18/793

(a) Whoever, for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation, goes upon, enters, flies over, or otherwise obtains information concerning any vessel, aircraft, work of defense, navy yard, naval station, submarine base, fueling station, fort, battery, torpedo station, dockyard, canal, railroad, arsenal, camp, factory, mine, telegraph, telephone, wireless, or signal station, building, office, research laboratory or station or other place connected with the national defense owned or constructed, or in progress of construction by the United States or under the control of the United States, or of any of its officers, departments, or agencies, or within the exclusive jurisdiction of the United States, or any place in which any vessel, aircraft, arms, munitions, or other materials or instruments for use in time of war are being made, prepared, repaired, stored, or are the subject of research or development, under any contract or agreement with the United States, or any department or agency thereof, or with any person on behalf of the United States, or otherwise on behalf of the United States, or any prohibited place so designated by the President by proclamation in time of war or in case of national emergency in which anything for the use of the Army, Navy, or Air Force is being prepared or constructed or stored, information as to which prohibited place the President has determined would be prejudicial to the national defense; or
(b) Whoever, for the purpose aforesaid, and with like intent or reason to believe, copies, takes, makes, or obtains, or attempts to copy, take, make, or obtain, any sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, document, writing, or note of anything connected with the national defense; or
(c) Whoever, for the purpose aforesaid, receives or obtains or agrees or attempts to receive or obtain from any person, or from any source whatever, any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note, of anything connected with the national defense, knowing or having reason to believe, at the time he receives or obtains, or agrees or attempts to receive or obtain it, that it has been or will be obtained, taken, made, or disposed of by any person contrary to the provisions of this chapter; or
(d) Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it; or
(e) Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it; or
(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, 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.
(g) If two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.

2) Executive Order 13526 - Classified National Security Information

https://www.whitehouse.gov/the-press-office/executive-order-classified-national-security-information
The White House
Office of the Press Secretary
For Immediate Release
December 29, 2009
Executive Order 13526- Classified National Security Information

This order prescribes a uniform system for classifying, safeguarding, and declassifying national security information, including information relating to defense against transnational terrorism.

. . .

(4) the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security, which includes defense against transnational terrorism, and the original classification authority is able to identify or describe the damage.

(b) If there is significant doubt about the need to classify information, it shall not be classified. This provision does not:

(1) amplify or modify the substantive criteria or procedures for classification; or

(2) create any substantive or procedural rights subject to judicial review.

(c) Classified information shall not be declassified automatically as a result of any unauthorized disclosure of identical or similar information.

(d) The unauthorized disclosure of foreign government information is presumed to cause damage to the national security.

C) 1950 Federal Records Act

44 U.S. Code § 3106 - Unlawful removal, destruction of records
https://www.law.cornell.edu/uscode/text/44/3106

Current through Pub. L. 114-38. (See Public Laws for the current Congress.)

US Code
Notes
Authorities (CFR)

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The head of each Federal agency shall notify the Archivist of any actual, impending, or threatened unlawful removal, defacing, alteration, or destruction of records in the custody of the agency of which he is the head that shall come to his attention, and with the assistance of the Archivist shall initiate action through the Attorney General for the recovery of records he knows or has reason to believe have been unlawfully removed from his agency, or from another Federal agency whose records have been transferred to his legal custody. In any case in which the head of the agency does not initiate an action for such recovery or other redress within a reasonable period of time after being notified of any such unlawful action, the Archivist shall request the Attorney General to initiate such an action, and shall notify the Congress when such a request has been made.