NYT: FBI mulling whether Hillary aides broke the law by sending her classified material on private server

If this question involved anyone except Hillary Clinton, the answer would be an unqualified yes. As it is, though, the FBI has treaded very carefully on questions of suspected criminal action in the dissemination of sensitive material through Hillary’s unauthorized and unsecured private e-mail server. The New York Times’ Eric Lipton and Michael Schmidt report that investigators still have not targeted Hillary herself in the probe into classified material on and through her secret server, but they may start probing her aides at the State Department:

The email described a deteriorating situation in Libya, with snipers shooting people in the streets as rebels tried to unseat President Muammar el-Qaddafi and worried American diplomats in the midst of a “phased checkout” from Benghazi. It arrived in the private email account of Secretary of State Hillary Rodham Clinton, one Sunday morning in April 2011, with unforeseen consequences.

That email, which included an update from the Africa Command of the Department of Defense detailing Libyan military movements, is part of the evidence that law enforcement officials say the F.B.I. is now examining as it tries to determine whether aides to Mrs. Clinton mishandled delicate national security information when they communicated with their boss.

The Libyan dispatch, written by an aide to Mrs. Clinton and then forwarded to her by Huma Abedin, one of her top advisers, should have been considered classified, according to intelligence officials. And, they say, other emails to Mrs. Clinton they have found, including one addressing North Korea’s nuclear weapons system and a third discussing United States drone strikes in Pakistan, should have been marked “Top Secret.”

There is no evidence that any of the emails — a small portion of some 60,000 that Mrs. Clinton sent or received as secretary of state — were hacked or caused any harm to American interests, and law enforcement officials have said she is not a target of their investigation. But one of the questions they are seeking to answer is whether her aides or other State Department officials broke federal rules or laws when they sent her information. And arriving at an answer will not be simple, given the complex and often conflicting views of just how diplomatically fragile the information conveyed in the emails actually was.

The response from Team Hillary was, predictably, that no one did anything wrong ever. The State Department responded by disputing whether the information in the e-mails were really classified, or in the public domain — even the e-mail that discussed North Korea’s nuclear weapons and satellite data, which two intelligence Inspectors General marked Top Secret/Compartmented when they reviewed it. Their argument is that if none of this was actually classified at the time it was sent, then no crimes have been committed.

There are two distinct problems with that argument, however. First, the State Department doesn’t get to decide whether information is classified or not unless it comes from their own sources. Executive orders going back at least to Bill Clinton’s administration explicitly state that only the originating agency can make that determination, and any challenge to that has to go through the the Director of the Information Security Oversight Office, and failing that, the White House itself. If the intelligence community classifies information, than anyone who accesses that data is required by law to handle it appropriate to its classification. In order for this to be a defense, these aides would have to show where the ISOO accepted a challenge to classification of this information and ordered it declassified. Otherwise, it’s useless for anything other than political posturing.

Second, under 18 USC 793, material does not have to have a classification for a felony to have occurred. This point gets lost in some of the discussion about the e-mail server, but it’s an important point if — and that’s admittedly a big if — the Department of Justice decides to charge anyone in this investigation. Nothing in 18 USC 793 requires a classification for prosecution, although it certainly makes the case easier. All it takes is a finding of gross negligence in the exposure of any data that could cause injury to national security:

(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.

If the FBI applies both the law and the EO, which under 18 USC 1924 has the force of law, then any aide who sent classified or even sensitive information to Hillary Clinton by her unsecured and unauthorized private e-mail system broke the law.

Finally, while the FBI may be proceeding cautiously on Hillary’s status, there is no way to get to the aides without involving Hillary herself. She set up the server as her sole means of communication, and she did so without informing the State Department of her server. Her aides had no choice but to communicate with her on private e-mail. Even more to the point, as Secretary of State, Hillary would have been the responsible authority for protecting that information. Once Hillary saw this classified/sensitive data, she had a positive duty to report the spillage and take corrective action immediately (again under 18 USC 793 (f), as above). Instead, it sat on her server for years, and then Hillary and her team attempted to destroy the evidence of it once the State Department discovered the existence of the server. Rather than turn over the server or the electronic database from it, Hillary and her team printed out the e-mails she chose to disclose and tried to erase the rest — unsuccessfully, as it turns out. That points to an intent to cover up criminal activity at the very top of the chain, not just among the aides.

If the DoJ decides to go to a grand jury, they can’t ignore the originator of the crime.