Hillary Clinton claimed in her most recent press conference that the controversy over classified material in her e-mail is nothing more than a dispute among government agencies. “What you’re seeing now is a disagreement between agencies,” Hillary said in response to questioning from Fox News reporter Ed Henry, with one “saying ‘they should have’ and the other saying ‘no they shouldn’t.’ That has nothing to do with me.” As Catherine Herridge reports today, it actually does — on a couple of levels — and it may portend even more legal problems for Hillary:
The language in Part 3 of EO 13526 pertains to Herridge’s point. Under this EO, first issued in December 2009, the only authorities allowed to declassify data were the originator of the material who classified it, the originator’s successor to that position, those in the direct command structure above that position, or the head of the agency or his/her designate for the purpose of declassification. No one in any other agency could declare something declassified or unclassified, not even in cases of a dispute — or perhaps especially in cases of dispute.
It’s worth noting that the two EO precedents to 13526 say the same thing, so this was not new in December 2009. Prior to that, EO 13292 was in effect, signed by President George W. Bush in March 2003, which superceded EO 12958 signed by President Bill Clinton in April 1995. Both precedents specified that declassification could only be accomplished by the agency doing the classification:
It is presumed that information that continues to meet the classification requirements under this order requires continued protection. In some exceptional cases, however, the need to protect such information may be outweighed by the public interest in disclosure of the information, and in these cases the information should be declassified. When such questions arise, they shall be referred to the agency head or the senior agency official. That official will determine, as an exercise of discretion, whether the public interest in disclosure outweighs the damage to the national security that might reasonably be expected from disclosure.
If outside agencies continue to challenge the classification, both earlier EOs specify that the Director of the Information Security Oversight Office has the authority to make a decision on the merits, with appeals possible to the President through the Assistant to the President for National Security Affairs. Obama’s EO uses the same mechanism, only routing an appeal from the ISOO to the National Security Advisor. Ominously, Obama’s EO includes this language from the preceding EOs:
(f) The provisions of this section shall also apply to agencies that, under the terms of this order, do not have original classification authority, but had such authority under predecessor orders.
In other words, Hillary and her team had no authority to treat material classified by other agencies as unclassified. Unless they asked the ISOO or the President to declassify it, it had to be handled with the classification given it by the NSA, DIA, NGA, and other agencies outside of the State Department.
Why does this matter? One of the federal statutes under which Hillary and her aides could be charged, 18 USC 1924, specifies that violating presidential executive orders on handling classified material is a crime, 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.
By admitting knowledge that the materials were classified by other agencies, Hillary has made a very good case for prosecution under 1924. Maybe she should keep her mouth shut about this case, but that’s impossible in the context of a presidential campaign. Stonewalling with “no comments” when questions arise might make good legal sense, but it will drive a stake through the heart of any ambitions she has to move back into the White House.
Perhaps Hillary should think about suspending her campaign. A poll from Rasmussen shows a narrow plurality in favor of a stand-down:
Voters are almost evenly divided on that question: the latest Rasmussen Reports national telephone survey finds that 46% of Likely U.S. Voters believe Clinton should suspend her campaign for the Democratic presidential nomination until all of the legal questions about her use of the private e-mail server are resolved. Nearly as many (44%) disagree. Nine percent (9%) are undecided.
Even one-in-four Democrats (24%) agree that the front-runner for their party’s nomination should suspend her campaign for the time being. But that compares to 73% of Republicans and 46% of voters not affiliated with either major party.
Forty-five percent (45%) of all voters – but only 18% of Democrats – now consider the national security questions raised about Clinton’s use of a private e-mail server while serving as secretary of State to be a serious scandal. Twenty-eight percent (28%) of likely voters consider the matter an embarrassing situation, while nearly as many (23%) say it’s no big deal.
That won’t happen, though, not unless Hillary bails out of 2016 altogether.