Since there has been much evasion and obfuscation about Hillary Rodham Clintons email use, it seems appropriate to step back and simply review what we know in light of the law. Its also instructive to compare Clintons situation to arguably the most famous case of our time related to the improper handling of classified materials, namely, the case of Gen. David Petraeus.
Instead of turning his journals so-called black books over to the Defense Department or CIA when he left either of those organizations, Petraeus kept them at his home an unsecure location and provided them to his paramour/biographer, Paula Broadwell, at another private residence. (None of the classified information in the black books was used in his biography.)
On April 23, Petraeus pled guilty to a single misdemeanor charge of unauthorized removal and retention of classified documents or materials under 18 USC §1924. Many in the intelligence community were outraged at the perceived slap on the wrist he received, at a time when the Justice Department was seeking very strong penalties against lesser officials for leaks to the media.
According to the law, there are five elements that must be met for a violation of the statute, and they can all be found in section (a) of the statute: (1) Whoever, being an officer, employee, contractor, or consultant of the United States, and, (2) by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, (3) knowingly removes such documents or materials (4) without authority and (5) with the intent to retain such documents or materials at an unauthorized location [shall be guilty of this offense].
The Petraeus case meets those conditions. Does Clintons?
Clinton originally denied that any of her emails contained classified information, but soon abandoned that claim. So far, 150 emails containing classified information have been identified on her server, including two that included information determined to be Top Secret.
She then fell back on the claim that none of the emails in question was marked classified at the time she was dealing with them. The marking is not what makes the material classified; its the nature of the information itself. As secretary of state, Clinton knew this, and in fact she would have been re-briefed annually on this point as a condition of maintaining her clearance to access classified information.
Then theres location. Clinton knowingly set up her email system to route 100 percent of her emails to and through her unsecured server (including keeping copies stored on the server). She knowingly removed such documents and materials from authorized locations (her authorized devices and secure government networks) to an unauthorized location (her server).
Two examples demonstrate this point.
When Clinton would draft an email based on classified information, she was drafting that email on an authorized Blackberry, iPad or computer. But when she hit send, that email was knowingly routed to her unsecured server an unauthorized location for both storage and transfer.
Additionally, when Clinton moved the server to Platte River Networks (a private company) in June 2013, and then again when she transferred the contents of the server to her private lawyers in 2014, the classified materials were in each instance again removed to another unsecured location.
Next we have the lack of proper authority to move or hold classified information somewhere, i.e., the unauthorized location.
While its possible for a private residence to be an authorized location, and its also possible for non-government servers and networks to be authorized to house and transfer classified materials, there are specific and stringent requirements to achieve such status. Simply being secretary of state didnt allow Clinton to authorize herself to deviate from the requirements of retaining and transmitting classified documents, materials and information.
There is no known evidence that her arrangement to use the private email server in her home was undertaken with proper authority.
Finally, theres the intent to retain the classified documents or materials at an unauthorized location.
The very purpose of Clintons server was to intentionally retain documents and materials all emails and attachments on the server in her house, including classified materials.
The intent required is only to undertake the action, i.e., to retain the classified documents and materials in the unauthorized fashion addressed in this statute. Thats it.
It borders on inconceivable that Clinton didnt know that the emails she received, and more obviously, the emails that she created, stored and sent with the server, would contain classified information.
Simply put, Mrs. Clinton is already in just as bad or worse of a legal situation than Petraeus faced.
Does this mean shell be charged? FBI Director James Comey has a long history of ignoring political pressure. So its likely that the FBI will recommend prosecution, and then it will be up to President Obamas Justice Department to decide whether to proceed. Stay tuned.
