CSIA Foundation

Outlined here in an easy to understand format, are serious felonies punishable by up to ten years’ imprisonment.  I'm also confident the issues go well beyond Mrs. Clinton.


McCarthy Shreds Clinton on E-Mail Scandal, Legal Distinctions


Editor’s Note – When it comes to cutting through the chaff and noise from the Hillary Clinton camp and her compliant media lap-dogs, no one does it better than Andy McCarthy. His legal acumen and ability to explain complex issues in a clear manner, allows him to expose the truth in the Clinton E-Mail Scandal and cut through her misleading and lying ways.

Today, it was a three-for-one special that echoes our posts in recent days but we suggest you read each one because what should happen and what is happening are astounding for the special treatment Clinton gets from the DOJ, the State Department, and the White House, but perhaps there is crack opening:


In Clinton E-Mail Scandal, Sensitive Information Is Just as Important as Classified Information

National Review - by Andrew C. McCarthy


Hillary Clinton cannot defend her behavior in setting up a private, extra-government server system in order to conduct government business without complying with (a) government recordkeeping requirements, (b) the protocols for handling national defense information, and (c) the disclosure mandates of the Freedom of Information Act.

It is unsurprising, therefore, that she is – with no small amount of media help – trying to move the goal posts. For instance, Mrs. Clinton emphasizes her private server system’s purportedly elaborate security precautions – which, as I argued in my second post this morning, are beside the point since it was improper to use that system. And she stresses that she did not maintain or transmit classified documents on her private system – which, as I argued in my first post this morning, is beside the point since the issue is how she handled, stored and transmitted national defense information, regardless of whether it was stamped classified or came from documents.

Relatedly, Mrs. Clinton’s emphasis on classified documents diverts attention from another significant problem: Most sensitive information in government is not classified, but government officials are still not allowed to communicate, transmit or store it outside government communications channels and filing systems. And quite apart from any criminal liability in this regard, this point goes to Mrs. Clinton’s fitness for high office – since she not only flouted laws, regulations and guidelines; she was head of the State Department at the time and was thus obligated to enforce these laws, regulations and guidelines. (Read the rest here at National Review.)

FBI Should Not Be ‘Investigating Security’ of Clinton Server — It Should Be Seizing Clinton Server

Politico’s Josh Gerstein reports that the FBI is “investigating the security of classified emails formerly stored on Hillary Clinton’s private server,” which now are apparently also “maintained on a thumb drive by Clinton’s personal attorney, David Kendall.”

The issue, however, is not whether Mrs. Clinton made good security arrangements for her private system, or whether the private thumb-drive Mr. Kendall is reportedly maintaining is secure. The issue is whether the Clinton server system or Kendall’s law firm are authorized government storage facilities for national defense information. Obviously, they are not; if the government had authorized them as storage facilities, there would be no reason for the FBI to be investigating their security precautions.

Thus, the FBI should not be “investigating the security” of the private systems involved. Private persons and current or former government officials do not get to make whatever arrangements they subjectively deem “secure” for the purpose of storing and transmitting government information. They are required to use the government’s systems.

As I argued in Tuesday’s column, the Justice Department should be demanding the surrender of the server – and of any copies of information from the server that has been loaded onto a thumb-drive or other medium. If a voluntary surrender is not forthcoming, the Justice Department should issue a grand jury subpoena compelling production forthwith, or government lawyers should be in court seeking a search warrant to seize these items.

This should not be controversial. It would not be controversial if anyone other than Mrs. Clinton were involved. It is very simple: (a) the “hard” (paper) copies of emails Mrs. Clinton (finally) surrendered to the State Department were downloaded from her server; (b) we now know for certain that information in those emails is classified (regardless of whether it was classified when the emails were written); and (c) Mrs. Clinton still has the server.

Government officials, former government officials, and private persons are not permitted to keep national defense information in private, unauthorized facilities. And they are required to return that information on demand. If they negligently lose or destroy information that should not have been stored in private, unauthorized facilities, that can be a crime. And if they attempt to delete or destroy information they have reason to know is relevant to official investigations (or that they have been instructed to preserve because it may be relevant to an official investigation), that can be the crime of obstruction of justice or obstruction of a congressional investigation. (Read the rest here at National Review.)

Clinton’s Case Is About National Defense Information, Not Just Classified Documents

I hate to part company with NR’s excellent political reporter Brendan Bordelon, but his report on Hillary Clinton’s potential criminal exposure relies on some legal analysis that is, at the very least, incomplete.

The report leaps from a false premise I have been warning against – and that Mrs. Clinton has been trying to sell – since the scandal broke in March. Brendan writes: “National-security lawyers say the decision to charge Clinton would depend largely on whether the offending documents were actually marked ‘classified.’” The case, however, is not about classified documents; it is about classified information.

I explained the distinction a few months back:

Classified Documents versus Classified Information

Mrs. Clinton stressed [at her March press conference] that she never stored classified documents on her private e-mail system. To the uninitiated, this sounded like the strongest point in her defense. Mostly, however, it is a red herring, exploiting the public’s unfamiliarity with how classified information works — and fueling no small amount of irresponsible speculation over the last few days about how the nature of her responsibilities meant classified material must have been stored on her private system.

In the government, classified documents are maintained on separate, super-highly secured systems. Yes, if security gets lax or you have a determined Ed Snowden type with sufficient expertise, the protections can be defeated. But in general, Mrs. Clinton would not have been able to access classified documents even from a “.gov” account, much less from her private account — she’d need to use the classified system. In fact, many government officials with security clearances read “hard copies” of classified documents in facilities designed for that purpose rather than accessing them on computers. [Such a facility is often called a “SCIF” — sensitive compartmentalized information facility.]

That said, there are two pertinent caveats. First, since we’re dealing with Clintonian parsing here, we must consider the distinction between classified documents and classified information — the latter being what is laid out in the former. It is not enough for a government official with a top-secret clearance to refrain from storing classified documents on private e-mail; the official is also forbidden to discuss the information contained in those documents.
The fact that Mrs. Clinton says she did not store classified documents on her private server, which is very likely true, does not discount the distinct possibility that she discussed classified matters in private e-mails. We would not be able to judge that absent reviewing the e-mails. [Note: Now that the e-mails have been reviewed, what seemed a “distinct possibility” in March is now an indisputable fact.] If any of the 31,830 withheld e-mails from the private, non-secure system — involving America’s top diplomat who was in constant discussions with other important diplomats, top military and national-security officials, her trusted advisers, and even the president of the United States — touched on classified matters, that could land Mrs. Clinton in very hot legal water. It would be a powerful incentive to hit the “delete” key.
Consequently, the cases involving former CIA directors John Deutch and David Petraeus are not apt analogies here. In both, the principal issue was the mishandling of physical documents, not the improper communication of information. [I note, however, that Petraeus did improperly communicate information -- as I wrote at the time, the Justice Department chose not to charge him for doing so, generously treating Petraeus's case as the mere mishandling of documents.]
Relying on the Deutsch precedent, Bradley Moss, a lawyer at a private DC firm that does national security-related work, says (as Brendan puts it) that, to be criminally liable, “Clinton must have transmitted documents with a clear ‘classified’ label – or, at the very least, quoted heavily from such documents – within the offending e-mails in order for the DOJ to open a criminal inquiry.”
Not so. Let’s say then-Secretary Clinton was at classified briefings in which no documents were distributed but information was communicated that, say, “X, a top Iranian military official, is the point-man for exchanging nuclear research with North Korea.” It would be unlawful to store or transmit that intelligence outside the government channels for storage and transmission. It would not matter whether the intelligence was stamped “classified” someplace or whether Mrs. Clinton “quoted heavily” from a classified document.
Even below the secretary-of-state, high-ranking officials involved in national security do not just read copious amounts of documents; they attend many classified briefings that take place in settings the government spends lots of your money to protect against eavesdropping. The issue is not whether pieces of paper stamped “classified” are involved; it is whether defense secrets are being communicated outside secure government channels.
In fact, the espionage act — which regulates the handling of intelligence by government officials — does not refer to classified information; it refers to information relating to the national defense. Moreover, it does not prohibit solely the transmission of such information; it criminalizes the communication, delivery, or transmission of that information; causing communication, delivery, or transmission of that information; permitting the removal of that information from its proper place of custody through gross negligence; permitting that information to be lost, stolen, abstracted, or destroyed through gross negligence; or, failing to make a prompt report to superiors in the government when an official knows that the information has been removed from its proper place of custody, communicated to someone not authorized to have it, lost, stolen, abstracted, or destroyed.
The range of potential crimes — and what I’ve outlined here are serious felonies punishable by up to ten years’ imprisonment — is much broader than merely transmitting or otherwise mishandling classified documents.

There are other points to make, but I will make them in a separate post or two.
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