“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.
Let’s cut the spin and identify Hillary Clinton's email transgressions for what they are: gross mismanagement of classified material that happens to violate the law.
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 is the Shillman senior fellow at the Investigative Project on Terrorism and the former chairman (R-Michigan) of the U.S. House Intelligence Committee. He is the author of "Architects of Disaster: The Destruction of Libya" (The Calamo Press, October 2, 2015).
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.