FBI Director James ComeyJames Comey performed a disservice to this country yesterday. He departed from standard practice to give a political diatribe against Hillary Clinton, apparently because he could not find any criminal action on her part. He conflated administrative requirements and best practices with potential criminal activity, without clarifying when he was speaking of which requirements. He failed to put the actions in the context that many other diarists have noted — which is that if other agencies that handle classified information were similarly investigated, similar “sloppy” handling of classified information likely would be uncovered. The technical rules — combined with the available technology — make full compliance essentially incompatible with the ability to do their jobs.

But the biggest defect in Director Comey’s presentation was the failure to clearly state the elements of the relevant crimes at issue and why Secretary Clinton’s actions did not violate those terms. Instead, he implied that she appears to violate the criminal statute but that an indictment would be inappropriate due to precedent (such as the need for specific intent or other indications of intentional wrong-doing). These implications are scurrilous and misleading — Hillary Clinton simply did not commit the crimes described in the relevant statutes.

The two relevant criminal statutes are: 18 USC 798 and 18 USC 1924.

18 USC, Section 798

(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information—

(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or

(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or

(3) concerning the communication intelligence activities of the United States or any foreign government; or

(4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes—

Shall be fined under this title or imprisoned not more than ten years, or both.

(b) As used in subsection (a) of this section—

The term “classified information” means information which, at the time of a violation of this section, is, for reasons of national security, specifically designated by a United States Government Agency for limited or restricted dissemination or distribution;

The terms “code,” “cipher,” and “cryptographic system” include in their meanings, in addition to their usual meanings, any method of secret writing and any mechanical or electrical device or method used for the purpose of disguising or concealing the contents, significance, or meanings of communications;

The term “foreign government” includes in its meaning any person or persons acting or purporting to act for or on behalf of any faction, party, department, agency, bureau, or military force of or within a foreign country, or for or on behalf of any government or any person or persons purporting to act as a government within a foreign country, whether or not such government is recognized by the United States;

The term “communication intelligence” means all procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipients;

The term “unauthorized person” means any person who, or agency which, is not authorized to receive information of the categories set forth in subsection (a) of this section, by the President, or by the head of a department or agency of the United States Government which is expressly designated by the President to engage in communication intelligence activities for the United States.

This provision deals with classified information generally. But notice that for purposes of this criminal statutes, clause (b) defines such information as information “specifically designated” as for limited or restricted dissemination. So information that by its nature automatically is considered “classified” does not count as classified for purposes of this criminal statute. By even if it did, more important, this statute requires that the person “knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information . . . “ The communication must be “in a manner prejudicial to the safety or interest” of the US or “for the benefit of any foreign government to the detriment” of the US. Clinton was not disclosing this information to unauthorized people.

Some have argued that communication on an unsecured server by its nature is “prejudicial to the safety of interest” of the US, but that reading simply “proves too much.” The clear import of these words is that the person needs to be communicating this information to someone who could be viewed as having an interest contrary to the US or, perhaps, leaving the information laying about where someone of that nature would have access. But sending the information via email to someone entitled to the information is no more a violation than talking about the information on the telephone because someone nefarious might be tapping the line. Clinton had no reason to believe she transmitting such documents to unauthorized people with interests opposed to the US.

Moreover, the violation must be “knowing and willful.” In other words, Clinton needed to know that she was making the information available to people who might put US security at risk. Such a finding under these facts would be virtually impossible.

Bottom line — the technical elements of this crime cannot be proven against Hillary Clinton. So let’s turn to the other criminal statute at issue.

18 USC, Section 1924

(a) Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both.

(b) For purposes of this section, the provision of documents and materials to the Congress shall not constitute an offense under subsection (a).

(c) In this section, the term “classified information of the United States” means information originated, owned, or possessed by the United States Government concerning the national defense or foreign relations of the United States that has been determined pursuant to law or Executive order to require protection against unauthorized disclosure in the interests of national security.

This provision deals more narrowly with “documents or materials” rather than transmitting information (as the provision discussed above). Most analysts stated that Clinton had a bigger risk under this criminal statute, 18 USC 1924 (which I believe is a misdemeanor) than the one discussed above, 18 USC  798 (which I believe is a felony). But again, the technical elements of this crime are not met.

The relevant language requires that a person who “becomes possessed of documents or materials containing classified information” . . . “knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location.” The key words are “knowingly removes” the documents or materials. This statute appears to be addressing the situation of someone who has access to a document that is contained in a secured location and removes that document from its secured location. No one has asserted that Clinton did any such thing.

Apparently an incredibly small number of emails at issue had attachments that were specifically marked classified. The details of the nature of these documents and how they became attached to emails that Clinton received or transmitted are unclear, but no evidence has been suggested that Clinton “removed” these documents from a secure location. All of the other examples of which I am aware involving violations of this criminal provision, including Gen. Petraeus, Sandy Berger and Bryan Nishimura (the naval reservist who pleaded guilty last year to a violation of this provision), involved removing classified documents from a secure location either to be disclosed to an unauthorized person (Petraeus) or to be retained in an unauthorized manner (Berger and Nishimura).

Hillary Clinton arguably retained the classified documents on her server (although unclear whether she knowingly did so). But retention is not enough — removal is also a requirement. Clinton did not remove these documents from a secure location — she did not remove them at all. They were sent to her. The technical elements of this crime simply cannot be established.

Criminal statutes are required to be interpreted narrowly because people’s freedom is at risk, and people have a right to full disclosure that their behavior will subject them to criminal sanction. The wording of these statutes would not have put Hillary Clinton on notice that her actions were crimes. Her behavior (while perhaps subject to legitimate criticism) simply did not meet all of the required elements of these crimes.

Now, let’s  analyze an additional criminal statute that could be relevant, 18 USC 793(f),

18 USC, Section 793(f)

(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (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—

Shall be fined under this title or imprisoned not more than ten years, or both.

his provision deals with “information relating to national defense” rather than “classified information” or “classified documents” as the provisions above addressed. Rather than challenge this element, assume that some of the emails at issue related to national defense in a manner that would be covered by this criminal statute.

As to the specific elements at issue, Clause (1) requires “gross negligence” that documents or information ”relating to the national defense” have been permitted to be “removed from its proper place of custody or delivered to anyone in violation of his trust . . . “ Once again, in what sense has Clinton permitted such material or information to be “removed from its proper place”? What is the proper place for these documents or this information?

As with 18 USC 1924, this statute appears to relate to situations where someone has access to material maintained in a secure location and the material is removed from its location. In this case, while only a “gross negligence” standard is required (rather than knowledge, as required in the criminal statutes discussed above), the gross negligence still needs to lead to a violation of the specific elements of the criminal statute. Even if Comey is correct that Clinton handled classified information “carelessly” — the statute does not criminalize such behavior. This particular statute criminalizes permitting such material or information from being “removed from its proper place of custody.”

Once the email got to Clinton, it was already outside of its “proper place of custody” (if it even had such a place of custody) — and Clinton did not cause that to occur. And anyone Clinton delivered the information to was entitled to receive the information. So she did not permit the information to be “delivered to anyone in violation of [her] trust.” The required elements simply are not met because Clinton never “removed” anything from its “proper place of custody” or permitted anything to be transmitted to someone “in violation of” Clinton’s trust as a person entitled to have such material or information.

Clause (2) is not applicable for basically the same reason. Clause (2) requires “knowledge” that such materials or information has been “illegally removed from its proper place of custody or delivered to anyone in violation of its trust . . .” As noted above, no such material or information was “removed from its proper place of custody” or “delivered to anyone in violation of” Clinton’s trust.

Some people who believe Clinton should have been indicted have argued that because the standard of care is lower for this statute — “gross negligence” (in Clause (1)) — that Comey’s focus on “intent” as the reason not to indict is flawed. Essentially, I agree with these people, which I why I called Comey a Jackass. But I strongly disagree that Clinton should have been indicted.

The issue is not Clinton’s mental state (intent or knowledge vs. gross negligence), but whether the substantive elements of the the crime have been violated. Under the facts as Comey has presented them, the elements have not been met, so mental state is irrelevant. Clinton did not permit the “removal” of any materials or information from its proper place of custody because no such removal occurred as a result of Clinton’s actions. It is not clear that anything that was part of her email had ever been in a secure location — but if it had been there is no evidence that Clinton caused or permitted it to be removed — even if she was the recipient of an email containing the information. And anyone she delivered (or permitted to be delivered) any such material or information to was not someone who constituted a violation of her trust, but rather were people entitled to see such material or information (i.e., anyone to whom Clinton was sending any such email).

The “unsecured server” issue is a red herring because there is no evidence that the nature of the server led to transmission to an unauthorized person, and even if it did, it is not clear that Clinton would be treated as having violated her trust by “permitting” this transmission. Clinton should not be presumed to have reason to believe that the material will be transmitted to someone not entitled to the material as a result of her actions. Without a causal link, mental state is irrelevant.

Comey should not have focused on the “intent” requirement — as “gross negligence” can be sufficient mental state for criminal liability under certain facts. Comey should have made it clear that Clinton simply did not take actions that met all of the elements of the relevant crime at issue. He failed to do so.

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