“I did not email any classified material to
anyone…” proclaimed Hillary Clinton at her March press conference in an
attempt to quell questions about the unsecure server she used for all
State Department business. Cleverly, Clinton dodged the fact that she
received classified email on that vulnerable server, conduct also in
violation of 18 USC 1924, which makes it a crime to have classified
information at an “unauthorized location.” Just ask General David
Petraeus.
This week’s disclosure that Clinton’s unsecured emails
contained Top Secret material — one of the highest classifications —
calls into question just about every phrase the former Secretary of
State and her campaign staff have uttered to excuse her conduct. Let’s
cut the spin and identify her email transgressions for what they are:
gross mismanagement of classified material that happens to violate the
law.
One Clinton spokesperson proffered that because the material
was not specifically marked, Clinton could not have been aware that the
material was classified. In that same March news conference Clinton
bragged that she was “certainly aware of the classified requirements.”
Apparently not.
Government officials are required to keep their
correspondence on the appropriate government server so the material can
be classified before it is mistakenly sent to an “unauthorized
location.” Clinton’s argument ignores her actual misconduct. The reason
the documents were not marked is because she never submitted them for
clearance.
As former intelligence professionals, we are
well aware that strict guidelines are required for handling classified
information. Briefings that include classified information are held in
Sensitive Compartmented Information Facilities, rooms with elaborate
protections to minimize eavesdropping. Telephone conversations of
classified information are conducted via secure phones. Emails that
might contain classified information are sent only through secure
networks, not through – heaven forbid – a personal server in a basement.
Clinton should have been sufficiently aware of what was
“classifiable.” Classified subjects are frequently discussed sans paper.
Oral briefings are common for government officials. Many times the only
method of briefing a Member of Congress on a specific matter is face to
face with CIA personnel so questions can be asked and answered.
Nevertheless, when a government official receives an oral classified
briefing, he or she is obligated to understand the nature of the
information and to protect it appropriately.
Ignoring her
responsibility to be aware when she is given classified information,
Clinton suggested that the matter was overblown because the documents
were not classified at the time she had custody and “various parts of
the government” are “disagree[ing]” about whether the material should be
classified. Not so.
According to the intelligence community’s
Inspector General, whose office conducted a random search of Clinton’s
emails and found 10 percent classified (at a level lower than Top
Secret), those emails were “classified when they were sent and are
classified now.”
Clinton may have more legal challenges. Her
repeated assertions that she turned all government documents over to the
State Department can be contradicted in two ways that culminate into
criminal conduct.
It has already been shown that in Sydney
Blumenthal's production of emails to the Benghazi Committee, they
included at least 15 Clinton emails related to Benghazi that are nowhere
to be found in Clinton’s production to the State Department. Is this
obstruction of justice?
Clinton’s sworn statement under penalty
of perjury to a federal judge that she turned over “all” emails “that
were or potentially federal records” can also be challenged if her
server, which she has finally agreed to turn over to investigators,
reveals the content of the deleted emails. To escape a perjury or
obstruction of justice charge, Clinton had to have produced all
government documents or have been very good at deleting.
The more important question is how does she escape being charged with 18 USC 1924, a law that she has already violated?
Republican Pete Hoekstra represented Michigan's 2nd congressional district from 1993 to 2011 in the House of Representatives. He is the former House Intelligence Committee chairman and author of the upcoming book “Architects of Disaster: The Destruction of Libya."
Victoria Toensing is a former Chief Counsel for the Senate Select Committee on Intelligence and former Deputy Assistant Attorney General, U.S. Department of Justice, where among other assignments she created the anti-terrorism section. She is a founding partner of diGenova & Toensing