Will Future National Security Prosecutions Suffer Because Clinton Was Spared?

January 12, 2017

What is the legacy of the Great Private Email Server Escapade, which began over revelations about Clinton’s server and ended (perhaps) with FBI Director James Comey’s decision not to recommend criminal charges against Hillary Clinton?

In the wake of this episode, some commentators have speculated that Comey created a new loophole that defendants could use to avoid prosecution for the mishandling of classified information.  They claim that because Comey relied on Clinton’s lack of intent when he declined to prosecute her mishandling of classified information, future wrongdoers will be able to evade prosecution by claiming a lack of intent.  Clinton’s case and Comey’s decision have even been invoked by the attorneys for other defendants in high profile cases as a possible defense.

These arguments rest on fundamental misunderstandings of the law governing prosecutions for the mishandling of classified information.  First, the intent requirement Comey relied upon is not new.  This has been the standard for prosecutions for mishandling classified information since 1941.  If it was illegal before Comey’s announcement, it is still illegal after Comey’s announcement.  Second, there are two different statutes that criminalize the mishandling of classified information, and many news reports have conflated the two different laws.  To clear up the tremendous confusion created by this conflation, a brief summary of the law in this area is helpful.

The two statutes that criminalize the mishandling of classified information are 18 U.S. Code § 1924 and 18 U.S. Code § 793, which together form key parts of the Espionage Act.  The first, § 1924, makes it a misdemeanor for any person entrusted with classified information to intentionally remove that information from its proper place of storage.  The second, § 793, makes it a felony for any person entrusted with classified information to remove the information from its proper place of storage with the intent to harm the national interests of the United States. As Comey made clear during his congressional testimony, the investigation’s main focus was on this latter statute.

Clinton could not be charged under § 1924 because there was no evidence she intended to remove classified material from its proper place of storage.  The State Department uses two email systems, a secure system for classified information and an unsecure system for unclassified information.  Clinton’s private server was only intended to substitute for the unsecure system and was built on the assumption that classified material would stay on the secure system.  Clinton didn’t use the secure email system at all and instead told staff to send her hard copies of classified documents instead of emailing them.  A prosecutor can’t show Clinton had the intent to remove classified information to a private server when the server was only intended to substitute for the Department’s unclassified email system which is not supposed to have any classified information on it.

Clinton’s server held 2,000 emails that contained information that was not classified at the time the email was sent, but was later deemed to be classified.  Proving any intent here would be essentially impossible because the information wasn’t classified when it was put on the server.  There were also 110 emails that included classified information at the time they were sent but were never marked classified.  The lack of marking would make it very difficult to prove any intent.  There were also three emails that did have classified marking but two of them were erroneously marked and didn’t actually contain classified information (They included talking points for diplomatic calls, which are confidential until the call is made and these emails were sent after this point).  The fact that these two emails didn’t contain classified information posed an insurmountable obstacle to prosecution.  The only email that both contained classified information and had classified markings has not been publicly disclosed but we do know that the markings were incomplete and did not include the full disclaimer that normally appears in the header of emails containing classified information.  This email did not note the contents were classified in the header as required and had only a “(C)” in the body of the email.  The fact that the markings were incomplete makes Clinton’s claim that she didn’t recognize the markings more understandable.

Because it was clear Clinton had not intended to remove classified information from its proper place of storage, attention turned to § 793, which appears to only require gross negligence in the handling of classified information to support a conviction.  But, as I previously detailed in these pages, the gross negligence language in § 793 is a mirage.  The Supreme Court essentially re-wrote the statute in its 1941 decision Gorin v. United States to require the defendant to have the intent to harm U.S. interests- a higher standard than gross negligence.  According to the Gorin court, if gross negligence were all that was required, the law would be unconstitutionally vague.

Clinton could not be charged because she neither had the intent to remove classified information from its proper place of storage (which is required for a misdemeanor charge under § 1924) nor the intent to harm the national interest (which is required to support a felony charge under § 793).  None of the defendants in other recent high-profile national security cases can say this.

The most high-profile case is that of former Commander of Central Command and CIA Director David Petraeus. President-elect Donald Trump himself compared Clinton’s case to Petraeus’, claiming in a tweet that the retired general had done “far less” and was still convicted.  The president-elect must be unfamiliar with or disinterested in the true facts of the Petraeus case.  Petraeus delivered a wide variety of classified material to his biographer with whom he was having an extramarital affair, including his personal notes of classified briefings that included the names of covert agents, details of diplomatic meetings, and descriptions of war plans from Afghanistan.  Much of the information was categorized as Top Secret or Code Word classified.  The FBI even obtained a recorded interview between Petraeus and his biographer where Petraeus admitted the notebooks in question were classified.

Petraeus was not charged under § 793 – the law that Clinton opponents want to see applied to the former presidential candidate. He was charged under the misdemeanor statute, § 1924.  This means prosecutors never had to prove he had the intent to harm the national interest, only that he intended to remove classified information from its proper place of storage.  Petraeus’ tape-recorded admission to the classified nature of the material left him no choice but to plead guilty and admit that the allegations were all true.

A more recent case that has drawn comparisons to Clinton is the prosecution of Booz Allen Hamilton contractor Harold Martin, III.  Martin was working at the National Security Agency (NSA) when he was charged with mishandling classified information in August of this year.  Some commentators have wondered if he might be able to assert the same defense that exonerated Clinton.  It appears his attorneys intend to make exactly this argument.  While the public does not have full access to all the evidence, and we should be cautious about rendering judgments without having all the facts, it does not appear that Martin is well-positioned to argue he lacked the requisite intent.

Martin is alleged to have stolen a sophisticated hacking tool – essentially a digital key that could unlock almost any standard computer security system. He removed it from the NSA and stored it in his home.  It is unclear what his motive was.  But like Petraeus, he is only being charged with a misdemeanor under § 1924. Under § 1924, the government doesn’t have to prove that Martin intended to harm the United States, only that he knew he was removing classified material from its proper place of storage.  The Clinton defense isn’t available to him because the intent requirement under § 1924 is different than under § 793.  Under § 1924, the government doesn’t have to prove intent to harm the United States.  It only has to prove the intent to remove classified information from its proper place of storage and from the information that is publicly available, it doesn’t seem the government will have trouble proving an NSA contractor knew he couldn’t store NSA hacking tools in his house (although it must be noted Martin has yet to be afforded the opportunity to present his defense on these points).

The case of Navy machinist Kristian Saucier has also inspired comparisons to Clinton.  Saucier was serving on the submarine the USS Alexandria when he removed classified information from the boat.  Unlike Martin, Saucier was initially charged, § 793, the same statute the government considered charging Clinton under.  The case garnered enough attention that it was raised in the vice presidential debate, with Mike Pence arguing the case showed Clinton had benefitted from a double standard.

But Saucier’s case is far more egregious than Clinton’s.  Saucier used his personal cell phone to document the entirety of the Alexandria’s nuclear propulsion system, which he knew was classified.  Saucier then left the phone on top of a dumpster where it was found.  The person who found the phone showed its contents to a Navy veteran friend who alerted the Naval Criminal Investigative Service.  When Saucier was interviewed by federal agents, he admitted the phone was his and that he knew the images were classified; but, he implausibly insisted he had not taken them.  When he returned home after the interview, he smashed his home computer, his personal camera, and the camera’s memory card with a hammer and dumped the shards in the woods behind his grandfather’s house.

Saucier tried to use the Clinton case as a defense but eventually had to acknowledge reality and accepted a guilty plea that resulted in an 18 month jail sentence.  It is true the government had little evidence that suggested Saucier was going to use the images to harm the national interest or benefit a foreign power.  What really was damaging to Saucier’s defense was the fact that he lied to investigators about possessing the photos and then destroyed evidence of his wrongdoing after he was interviewed.  This deception evidenced a guilty mind, which implied he knew what he was doing was criminal and helped support a finding of intent.  The photos were also so extensive and so completely documented the engine systems that simply having possession of them on a personal phone created a danger to the national interest and Saucier should have known that.  As one of the prosecutors noted, “They are not the type of photograph that one would take to commemorate one’s service.”.

It is also common in espionage cases for the government to have evidence they don’t disclose publicly in order to protect sources and methods.  It is possible the government had additional evidence showing intent and offered the plea deal in order to avoid disclosing it at trial.  The government might have more evidence of intent than what they disclosed to the public.  For example, prosecutors appear to have been holding back information on why Saucier kept the photos.  The criminal complaint makes vague references to Saucier’s foreign travel and his possession of an international phone card that were never fully explained.  It is possible prosecutors had additional information that would connect this travel to some nefarious purpose.

There is no new standard after Comey’s announcement.  The Clinton case was decided under the same standard that has been in place for 75 years.  It will be no more difficult in the future to prove espionage charges than it has been in the past.  Defendants who knowingly remove classified information from its proper place of storage can be prosecuted under § 1924 just as they always have been.  Defendants who mishandle classified information with the intent to harm national security or to benefit a foreign power can face felony charges under § 793, just as before.  The idea that defendants like Saucier can assert the Clinton case as precedent is undermined by the fact that Saucier himself gave up on the idea that this could result in an acquittal and accepted a guilty plea to reduce his potential jail time.

Partisans will continue to debate whether Comey’s handling of the Clinton case unduly affected the outcome of the election.  But there is no reason to worry that the rationale offered for not prosecuting Clinton will open the door to a new defense for those who mishandle classified information.  Comey didn’t decline to recommend charges against Clinton because he had invented a new loophole in the Espionage Act.  He declined to recommend charges because her conduct did not rise to the level of criminality under longstanding precedent.  Future spies and individuals who criminally mishandle classified information will find no refuge in Comey’s decision.


John Ford is a former military prosecutor and a current reserve U.S. Army Judge Advocate.  He now practices law in California.  You can follow him on twitter at @johndouglasford.

Image: Lorie Schaull, CC