Plan B Forum

Hillary Clinton's Felony. The federal laws violated by the private server

Hillary Rodham Clinton has committed a felony. That is apparent from the facts and in the plain-language of the federal statute that prohibits "Gathering, transmitting or losing defense information", 18 U.S. Code § 793(e) and (f). This offense carries a potential penalty of ten years imprisonment.

It's called a prima facie case: clear on the basis of known facts.

It's up to prosecutorial discretion by the US Attorney as to what charges may be filed and when. Nonetheless, Mrs. Clinton is clearly chargeable for violation of federal law. As of right now, the matter is under FBI investigation. This isn't just about violation of Departmental policy.

The facts:

NYT: F.B.I. Tracking Path of Classified Email From State Dept. to Hillary Clinton

http://www.nytimes.com/...

WASHINGTON — F.B.I. agents investigating Hillary Rodham Clinton’s private email server are seeking to determine who at the State Department passed highly classified information from secure networks to Mrs. Clinton’s personal account, according to law enforcement and diplomatic officials and others briefed on the investigation.

To track how the information flowed, agents will try to gain access to the email accounts of many State Department officials who worked there while Mrs. Clinton was secretary of state, the officials said. State Department employees apparently circulated the emails on unclassified systems in 2009 and 2011, and some were ultimately forwarded to Mrs. Clinton.

They were not marked as classified, the State Department has said, and it is unclear whether its employees knew the origin of the information.

F.B.I. is also trying to determine whether foreign powers, especially China or Russia, gained access to Mrs. Clinton’s private server, although at this point, any security breaches are speculation.

Four para limit stops here. But, I will in all fairness stipulate that this article goes on to say that HRC is not at this point the target of the investigation. However, Reuters has since reported that her unsecured private server email system contained "presumed classified" materials. Hillary personally exchanged such presumed classified information with Sidney Blumenthal, and those communications were intercepted and publicly released by a Romanian hacker. http://www.aol.com/...

The fact that the email was not marked classified at the time does not excuse Mrs. Clinton. This is because information gathered from foreign government sources, a great deal of her email was so sourced, is presumed classified. Mrs Clinton received Departmental training on recognizing and handling classified materials. Presumed classified information is defined by Executive Order as "The unauthorized disclosure of foreign government information is presumed to cause damage to the national security." (see full text of that section of Executive Order 13526- Classified National Security Information, Sec. 1.1(4)(d), below)

Secretary Clinton was trained in handling of classified materials, and acknowledges that she understood them. By transmitting and receiving email correspondence that contained information gleaned from foreign government sources on an unauthorized, insecure system, she violated the law. This was not something she did unwittingly, and that the foreign government sourced material was not stamped classified is irrelevant.

On his last day in office, President Bill Clinton pardoned former CIA Director John Deutch who had committed similar violations. Deutch left the CIA on December 15, 1996 and soon after it was revealed that several of his laptop computers contained classified materials. In January 1997, the CIA began a formal security investigation of the matter. Senior management at CIA declined to fully pursue the security breach. Over two years after his departure, the matter was referred to the Department of Justice, where Attorney General Janet Reno declined prosecution. She did, however, recommend an investigation to determine whether Deutch should retain his security clearance.

All Deutch did was to take some classified material home with him to work on his unsecured personal laptops that were connected to his home commercial internet. In other words, pretty much what Hillary did on a much larger scale.

Other, lesser, federal officials have been recently prosecuted for downloading classified materials onto private servers or media and taking them home, and they were charged even though the materials was never publicly released and they had no intention to do so or to harm the United States. Links in thread: http://www.democraticunderground.com/...

Applicable statutes and Executive Order:

1) 18 U.S. Code § 793 - Gathering, transmitting or losing defense information

Full copy of this Section of the 1917 Espionage Act is below. It has been claimed that Hillary did not violate the law because she didn't intend to injure the U.S. or aid a foreign power. However, that purpose is not required to convict under this Subsections (e) and (f) of this statute.

Subsections (a)-(d) and (g)(conspiracy) reference and require intent to injure the United States. The plain-language of Subsection (e) and particularly (f) are different:

The difference is this phrase that references purpose in the first three subsections; "with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation, Note: "is to be used"

The language in (e) is close but omits reference to purpose to injure: "the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation". The word intent is not there. Note: "could be used"

Finally, the offense specified at (f) requires not willful action, simply a negligent action:

(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—

The differences between Sections (e) and (f) and the various other offenses covered in Section 793 comes down to the element of intent to injure the US or act to the advantage of a foreign power. These are not requisite elements of the offenses covered under these sections of the Espionage Act.

2) 1950 Federal Records Act

44 U.S. Code § 3106 - Unlawful removal, destruction of records
https://www.law.cornell.edu/...
Current through Pub. L. 114-38. (See Public Laws for the current Congress.)

The head of each Federal agency shall notify the Archivist of any actual, impending, or threatened unlawful removal, defacing, alteration, or destruction of records in the custody of the agency of which he is the head that shall come to his attention, and with the assistance of the Archivist shall initiate action through the Attorney General for the recovery of records he knows or has reason to believe have been unlawfully removed from his agency, or from another Federal agency whose records have been transferred to his legal custody. In any case in which the head of the agency does not initiate an action for such recovery or other redress within a reasonable period of time after being notified of any such unlawful action, the Archivist shall request the Attorney General to initiate such an action, and shall notify the Congress when such a request has been made.

That law requires heads of agencies -- no exception for DOS -- to preserve and turn over all official correspondence and records to the National Archives. She didn't do that until confronted after a Romanian hacker leaked Hillary's email correspondence with Blumenthal. Those emails were clearly official not private. HRC admits to destroying at least 30,000 emails she deemed private and turned over approximately 30,000 her lawyers found to be public documents. However, a number of other emails have subsequently been turned over and analysed by news agencies. Reuters reported that a number of them to contain presumed classified information.

Hillary had also failed to provide these records to meet a FOIA request and Congressional Committee subpoena, which violates other federal laws.

Those emails and many like them were most recently found to contain "presumed classified" materials about US communications with foreign governments. That was a violation of Executive Orders, and possibly the 1917 Espionage Act that criminalizes private retention or mishandling of classified materials.

Intent to injure the U.S. or aid a foreign power is not required under Sec 793 (e) and (f). The mere fact of unauthorized removal or destruction of materials the official should have known were classified are all that is required for conviction under these parts of the Espionage Act. Hillary should have known.

Removal is obvious from the fact that she ran her private server out of her own house. There have been several recent convictions under these provisions of lower-ranking officials, as well as the forced retirement and referral to the Justice Department of CIA Director John Deutch for taking home classified materials on his personal laptop and connecting to the internet.

We know that she sent and exchanged presumed classified materials with Syd Blumenthal. Read the Reuter article linked. Bluementhal's email with Hillary on her server was intercepted and published by a Romanian hacker. That's how this whole thing came to light.

Sorry, she's done herself in, and has no one else to blame except some overzealous aides and risk-seeking lawyers.

Potential Prosecution:

At this point, the FBI is investigating the server and network history before a decision is made whether to proceed with prosecution and what charges to seek from a federal Grand Jury.

The facts are clear that she was operating her own private server and that "presumed" classified materials were shared on that unsecured device. The FBI won't come out and say she's the target until a series of decisions have been made. That Biden is signalling he's readying his candidacy tells me that probable cause exists and the system has already been found to have been breached. In fact, we know that a Romanian hacker obtained email containing presumed classified information between Blumenthal and Hillary, and that she responded to him. We also know that she was trained not to do anything like this, she acknowledges that, but she went ahead and continued to did it anyway.

This is serious, not a pseudo-scandal.

Prima facie case?

This is the text quoted to justify that assertion:

"Gathering, transmitting or losing defense information", 18 U.S. Code § 793(e) and (f)

By the meaning of that text in isolation, everyone with a policy level job in the State Department would be guilty, since it is their job to gather or transmit information.

Of course, the rest of the statute probably qualifies and defines this stuff so it make more sense, but that part got left out of the dairy. What the law really intends is to outlaw transmitting of sensitive information to unauthorised people. There is no evidence that Hilary Clinton did that. The worst that can be said of using a private server is maybe a private server would be less secure than a government one, though at least some government servers seem just as vulnerable as anyone else's.

The throw enough shit and hope some sticks theory of legal reasoning is at work here, I see.

I'm not sure why I even bother, but:

The Espionage Act simply doesn't apply.

1. For starters, it refers to information "relating to the national defense", which has a specific meaning (per Gorin) of information about "military and naval establishments and the related activities of national preparedness". Furthermore, it would have to be information "likely to cause damage". It remains unlikely that anyone sent emails containing defense information that would be likely to cause damage, as such things are normally interpreted under 793. Not all "classified information" falls under 793.

2. More importantly, none of the sections apply. Sections (d) and (e) require that information be "willfully transmitted" to a "person not entitled to receive it". Clearly no such allegation has been made. The emails involved here were all between State Department employees.

3. And section f, both paragraphs, involves material being "removed from it's proper place of custody" which is not alleged to have occurred here, resulting in it being "lost, stolen, abstracted or destroyed", which also has not been alleged to have occurred.

4. These are the sections the diarist highlights because they don't require "intent or reason to believe that the information is to be used to the injury of the United States". Sections which do require that also obviously don't apply.

oldr_n_wsr wrote:And if some Romanian hacker got her emails, you can bet China and Russia have them too.

If it is discovered that Clinton did in fact have classified material on her personal email server and knew about it, it could mean trouble for her—both in a legal sense and in her campaign for president. Former National Security Agency employee John Schindler writes in The Daily Beast:

People found to have willfully mishandled such highly classified information often face severe punishment. Termination of employment, hefty fines, even imprisonment can result. Yes, people really do go to jail for mishandling classified materials. Matthew Aid, a writer on intelligence matters, served more than a year in prison for mishandling TOP SECRET//SI information from the NSA, for example. The well-connected tend to avoid jail, however. Sandy Berger and John Deutsch—who both served in high-level positions under President Bill Clinton, did not go to prison for mishandling TOP SECRET intelligence (though Berger got probation and was fined $50,000).

Long Run wrote:Well, gosh, if someone posted a comment to an article on the Daily Kos

...if the allegations are proven true...

If it is discovered that Clinton did in fact have classified material on her personal email server and knew about it...

People found to have willfully mishandled such highly classified information often face severe punishment.["highly"? What does that even mean in this context? Or was it just an autocorrect misspelling of "Hillary"?]

Wed Sep 09, 2015 at 07:28 AM PDT
NYT D.C. bureau chief out over failed Clinton coverage

After months of negative stories about 2016 frontrunner Hillary Clinton which were almost bizarrely inaccurate and had to be repeatedly retracted, the New York Times has finally taken definitive action within its organizational structure to put a stop to the strange editorial agenda. Carolyn Ryan is now officially out as Washington Bureau Chief, and while the newspaper isn’t referring to it as a firing, the move was made after less than two years on the job.

To quote Margaret Sullivan – the Public Editor in question – herself,

Arlene Williams, a longtime subscriber, wrote and objected to “what I see as jaded coverage concerning Hillary Clinton.” News articles and opinion columns are “just consistently negative,” she said. And Ben Lieberman of Acton, Mass., said The Times seemed to be “on a mission to cut her down to size.”

These readers aren’t alone. The press critic and New York University professor Jay Rosen wrote on Twitter: “I have resisted this conclusion over the years, but after today’s events it’s fair to say the Times has a problem covering Hillary Clinton.” Rachel Maddow said last week on MSNBC that the attitude of the national press corps, including The Times, is, “Everything Hillary Clinton does is a scandal.” And James Fallows of The Atlantic called what he sees as a Times “Clinton vendetta” a “serious lapse,” linking to a letter the Clinton campaign wrote in response to the Times story. [...]

To that end, [executive editor Dean Baquet] told me that he has urged reporters and editors to focus anew on issues stories. And he pledged fairness. “I’m happy to make a promise that she’ll be treated fairly,” he said, though he added, “If you look at our body of work, I don’t believe we have been unfair.” One testament to that, he said, was an investigative piece written by David Kirkpatrick shortly after the 2012 Benghazi attacks, with conclusions seen as favorable for Mrs. Clinton, who was then secretary of state. It came under heavy attack from the right.

But the Times’s “screw-up,” as Mr. Baquet called it, reinforces the need for reporters and their editors to be “doubly vigilant and doubly cautious.”

The NY Times had been pushing various strange and false storylines regarding Hillary Clinton and her campaign. An article depicting doom and gloom for Clinton based on her standard-issue use of private email as Secretary of State was deemed so factually inaccurate that even after a comprehensive retraction was published, so much additional false information was found within the story that an unprecedented second retraction had to be issued. The article was deemed to be such a work of fiction that even the Times’ own Public Editor criticized the hatchet job.

Sue U wrote:Also too such as