“I think you are literally for the first time trying to avoid a true narrative here,” Mika Brzezinski tells Howard Dean at the end of an unbelievably disingenuous attempt by the former DNC chair to spin yesterday’s news as a boon for Hillary Clinton. Dean pronounced himself delighted by the FBI’s seizure of the e-mail server and thumb drives yesterday, thanking God that Trey Gowdy didn’t get them. A reminder from Nicolle Wallace that Gowdy didn’t want them — he wanted them to go to a third party all along — does nothing to harsh Dean’s mellow (via Free Beacon):
Yeeeeargh! Mika offered this final rebuke at the end:
“Your partisan whatever is oozing, it’s right there,” Brzezinski said. “It’s just very awkward on the set.”
To call it unconvincing would be charitable. It would take even more charity to credit Dean’s defense of Hillary Clinton with any hint of intellectual honesty. Dean argues that Hillary didn’t know that the server had classified material on it, and therefore she would have broken no laws. That’s actually not true, for a number of reasons, even if one accepts “I am not a crook!” as the bar to clear for the presidency. (Will the ghost of Richard Nixon please pick up the white courtesy phone in the Limbo Lounge?)
First, all of those communications belonged to the State Department and the National Archives from the moment Hillary took office, regardless of classification level, under the Federal Records Act. She did not disclose the existence of this server and its exclusive role in her electronic communications until well after she left office, and allowed the State Department to misrepresent the record in several FOIA cases until Gowdy’s Select Committee on Benghazi exposed the set-up. Contra Dean, the FRA doesn’t apply to the office of Vermont governor and his business was unlikely to include classified nat-sec material, so a defense based on Dean’s practices from the 1990s are a non-sequitur on several levels.
Put simply, there is no benign reason for Hillary to bypass secured channels by using her own e-mail server located in an unsecured and unapproved facility — her home. That in itself violates more than one regulation on handling even sensitive materials, and is best described as willful disregard of them. Once classified material was found in these e-mails, that opens up a number of legal problems for Hillary, especially in 18 US Code 793 and 18 US Code 1924, both of which carry prison terms for violations.
Let’s start with 1924, emphases mine:
(a) Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both.
(b) For purposes of this section, the provision of documents and materials to the Congress shall not constitute an offense under subsection (a).
(c) In this section, the term “classified information of the United States” means information originated, owned, or possessed by the United States Government concerning the national defense or foreign relations of the United States that has been determined pursuant to law or Executive order to require protection against unauthorized disclosure in the interests of national security.
That could apply to both the entire e-mail server, and to the thumb drives given to the attorneys. Hillary intended to retain all of this information for her own use, even if that use was simply to keep Congress from exercising its legitimate oversight of her office, and even if that meant destroying rather than returning the e-mails to the National Archives. The act of using the Clintonemail server was her deliberate choice, and in that sense it makes no difference whether the e-mail accounts that had the classified material were hers or those of her aides. She retained that material at her own residence, an unsecured and unauthorized location for that material. That is itself a huge violation of regulations on handling Top Secret and compartmented data, on top of which she had physical possession of classified material to which she no longer had authorized access on the “need to know” basis. She made that deliberate choice knowing full well it not only violated the law, but also the EO issued by Obama that largely barred the use of private e-mail accounts for public business.
Let’s take a look now at 793 (d), (e), and especially (f), again emphases mine:
(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.
Note that this is 10 years per count, and also note that 793 does not restrict this to classified material, either. The classification level simply makes it easier for prosecutors to establish that the possessor would know that the material could do damage to the US if it got into the wrong hands. The language in 793 (f)(1) also makes clear that a lack of intent isn’t a defense against criminality. It only takes “gross negligence,” a standard that likely falls below “willful disregard,” which is what Hillary had when she opted to use a private, unsecured e-mail system for communications that any reasonable person would expect to include some classified material. The State Department has its own intelligence group that produces classified data specifically for the Secretary of State, after all, and the position deals with intelligence from across the spectrum of US agencies.
Now, all of this is predicated on the willingness of a prosecutor to actually pursue charges. The FBI and the DoJ are investigating this, which is what Gowdy wanted them to do in the first place. If they never bring charges, then this is mostly academic, but a failure to charge Hillary Clinton for this would open up a huge can of worms the next time the government wants to pursue a leak case, especially in regard to 1924. Needless to say, any other American who did all this whose name didn’t rhyme with Millary Minton would need a very good lawyer, and a plan for post-prison rehabilitation.
Politically, also contra Dean, the FBI’s seizure of the server after Hillary’s public refusal to surrender it voluntarily in March is a disaster of the first order. Chris Cillizza isn’t fooled:
Where does the story go from here? Clinton hopes nowhere. But, keep an eye on the following:
1. Does the State Department turn over more of the 30,000 Clinton work-related e-mails to the intelligence community’s inspector general? So far, he has reviewed just 40 of Clinton’s e-mails and found that four contained classified information. That’s 10 percent.
2. How many more — if any — e-mails show that Clinton was sending or receiving classified information via her e-mail server? And, was any of that information classified at the time she received or sent it? Did she know? If not, why not?
3. Will any of the more than 31,000 e-mails that were deleted off of the server after being determined to be private and personal be recovered? According to an expert on e-mail recovery that our own Philip Bump talked to this spring,there is a 90 to 95 percent chance those deleted e-mails could be recovered “if no other steps were taken to go in and otherwise make the data inaccessible.” That last part we don’t know yet — were any other steps taken to ensure the e-mails could not be recovered — but presumably we will get some answers once the Justice Department begins to look at the server. The bigger question is whether there are legal reasons to try to recover the the 31,000 deleted e-mails. If those are recovered and examined, it’s hard to imagine this story doesn’t go from bad to worse for Clinton.
It’s a disaster, and everyone but Dean seems to know it. And not just politically, either.
Update: Ron Fournier isn’t buying the spin, either:
Where do I start? How about with the Clinton campaign’s ridiculous suggestion that coughing up the server and email were voluntary acts. We know that’s bunk—because Clinton herself said she wouldn’t surrender the people’s records without a fight.
“The server will remain private,” she said in March. Her attorney told Congress at the time that there was “no basis” to support a third-party examination of the server. Besides, he said, the server had been scrubbed. “There are no [email protected] emails from Secretary of State Clinton’s tenure on the server for any review, even if such a review were appropriate or legally authorized,” attorney David Kendall wrote Congress.
It’s safe to assume two things changed Clinton’s mind: political and legal pressure. First, the public’s trust and approval of the Democratic front-runner has plummeted amid revelations that she established an email system that violated federal policy, thwarted congressional oversight, and skirted the Freedom of Information Act. …
Know this: Government officials have been convicted of mishandling unmarked classified material. And this: The fact is, any chain of events or excuses that led to the disclosure of these documents begins with Clinton’s decision to go rogue with government email.
As noted above.