“Knowingly is the key word,” Chuck Todd tells the hosts of NBC’s Today this morning, arguing that yesterday’s release of 7,000 Hillary Clinton e-mails did not provide a smoking gun on illegality. Hillary has recently shifted her defense from insisting that no classified material was transmitted through her server to saying she was not aware of any classified material that might have been transmitted and remained on the unauthorized communications system. “There is no evidence to suggest that that story doesn’t hold up,” Todd says, but he’s in error on the key word:
Actually, under 18 USC 793, one does not have to knowingly transmit classified material in order to be charged and convicted of a crime. Paragraph (f)(1) makes that clear — and the material does not require classification in order to qualify prosecution under this statute:
(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.
Hillary Clinton set up this private system, did nothing to ensure that sensitive material was screened out of it, and indeed ended up with hundreds of incidents of both classified and otherwise sensitive material to be transmitted and stored in it. That’s grossly negligent at best, especially considering her position and experience in dealing with sensitive information, which included signals intelligence in at least two instances. That’s the reason why the FBI’s “A-team” is getting “extremely serious” about this probe.
Also, Todd argues that Hillary’s surrender of these e-mails demonstrates a lack of ill will and knowledge in this situation. Hillary surrendered those e-mails under duress, however, because under the Federal Records Act she had no authority to withhold them. It took two years and a demand from Congress to give them up, and even then she deleted more than half of the communications on the server. Hillary then took six months to surrender the hardware, and only did after the FBI made it clear they would get it one way or another. That’s hardly a model of transparency or of good faith in cooperation. In court, those actions would tend to impute guilt, not innocence.
Todd agrees that the political implications of the release is disastrous, and that it undermines the “convenience” excuse. “The most logical explanation,” Todd says, “is that she was trying to get out of Congressional action and the Freedom of Information Act.” He’s exactly right on that point, which is one big reason why 18 USC 793(f)(1) would apply — it’s a deliberately malicious motive, followed by a complete lack of action to safeguard against violations of the law.
On top of that, the e-mails show that Hillary used her position for political purposes — not a crime, but also not particularly laudable either. Politico’s Josh Gerstein notes that this tranche of communications showed Hillary keeping an eye on her potential political opponents, and even her allies, in advance of the 2012 election. She focused on the political aspirations of David Petraeus, and also on blowback from the man who now runs her election campaign, John Podesta:
Clinton–who’s now the frontrunner for the Democratic presidential nomination next year–sounded intrigued when her longtime friend Sidney Blumenthal reported to her on a Saturday morning in February 2010 that prominent Washington foreign policy blogger Steve Clemons said Petraeus was talking frankly about the possibility of running for the White House.
“Clemons had dinner this week with Petraeus, who freely talked about running for president,” Blumenthal wrote to Clinton.
“Will he write about Petraeus?” Clinton wrote back five minutes later. …
In addition to keeping tabs on Petraeus, Clinton also expressed interest in reports that former Clinton White House Chief of Staff John Podesta was expressing criticism of Obama White House management. “Send me the next article about Podesta,” she asked Blumenthal. Previously released emails show Clinton chafing at perceived snubs from Obama’s national security team and her team in some apparent friction with then National Security Adviser Jim Jones.
There are no good explanations for this, other than political ambition overtaking her focus on the job at hand. That’s exactly what happened with the secret server and its breathtakingly broad exposure of classified and sensitive material, seen in the hundreds of redactions applied to the released e-mails. Hillary Clinton’s political ambitions took precedence over national security, and then she completely disregarded the potential for damage. As noted above, that’s clearly gross negligence at best, and an abuse of authority and trust.