I have previously written about the peculiar position of being counsel for Hillary Clinton when your client, her advisers, and allies mock the massive federal investigation that continues into her reckless use of an unsecured personal server for her official communications as Secretary of State. As counsel you usually strive to show investigators that your client understands the gravity of such violations and accepts responsibility for serious mistakes of judgment or action on her part. The Clintons however have been yielding to a political rather than a legal narrative in mocking the investigation — something that truly must mystify those FBI agents working the case. In the latest such example, former president Bill Clinton used a speech in Kokomo, Indiana to dismiss the FBI investigation is nothing more than “a game.”
In his speech, Bill Clinton told the crowd:
If you’re driving in a 50 mile-an-hour zone, and a police officer pulls you over when you’re driving 40, and says, "I’m sorry, I’ve got to give you a ticket because you know the speed limit here should be 35, and you should have known it." So, everybody’s all breathless about this, look, this is a game.The comment repeats what is a manifestly incorrect reading of the controlling law. The emails never had to be marked to be considered classified. Yet, Hillary Clinton has insisted that "I never sent classified material on my email, and I never received any that was marked classified." The key of this spin is again the word "marked." I have previously discussed why that explanation is less than compelling, particularly for anyone who has handled sensitive or classified material.
As I discussed earlier, virtually anything coming out of the office of the Secretary of State would be considered classified as a matter of course. I have had a TS/SCI clearance since Reagan due to my national security work and have lived under the restrictions imposed on email and other systems. The defense is that this material was not technically classified at the time that it was sent. Thus it was not "classified" information. The problem is that it was not reviewed and classified because it was kept out of the State Department system. Moreover, most high-level communications are treated as classified and only individually marked as classified when there is a request for disclosure. You do not generate material as the Secretary of State and assume that it is unclassified. You are supposed to assume and treat it as presumptively classified. Indeed that understanding was formally agreed to by Clinton when she signed the "Classified Information Nondisclosure Agreement," or SF-312, which states that "classified information is marked or unmarked classified information, including oral communications." Otherwise, there would be massive exposure of classified material and willful blindness as to the implications of the actions of persons disregarding precautions.
For example, there is not a person standing next to the President with a classification stamp in the Oval Office. However, those communications are deemed as presumptively classified and are not disclosed absent review. Under the same logic, the President could use a personal email system because his text messages by definition are not marked as classified. Classified oral communications are not "marked" nor would classified information removed from secure systems and sent via a personal server. Likewise, classified oral communications that are followed up with emails would not be "marked." This is the whole reason that Clinton and others were told to use the protected email system run by the State Department. We have spent hundreds of millions of dollars to secure such systems.
We previously discussed the controversy of the White House stating that the investigation was not moving toward any criminal charges — a statement would indicate either a sweeping assumption or an improper degree of consultation between the White House and the Justice Department on an ongoing investigation. As discussed below, having a personal server is not a crime. Mishandling classified material (or related classification violations) or evading federal laws can be. It would be premature to dismiss or predict an indictment. It is certainly not a game.
As I have previously noted, the best case for Clinton is the conviction of retired four-star general and CIA director David H. Petraeus for mishandling classified information. The deal given to Petraeus by the Justice Department was absurd and rightfully led to objections that powerful figures like Petraeus and Clinton are treated differently from average people. Nevertheless, the Clintons can claim that Petraeus was far more egregious in his lying to investigators and knowing disclosure of top secret code words, identities of covert officers, war strategy and intelligence capabilities to his lover and biographer.
Then there was the late Samuel "Sandy" Berger, a former White House national security adviser to Bill Clinton, who faced that same charge after he intentionally removed and destroyed copies of a classified document (putting some material in his socks to sneak them out). Berger was trying to protect Clinton in the reviewing of potentially negative classified information. Not only that but Berger then lied to investigators — a separate crime regularly prosecuted by the Justice Department. Yet, no one called for his long incarceration. Instead, he was allowed to plead guilty to a single misdemeanor with no jail time.
Petraeus was fined $100,000 and sentenced to two years of probation. In combination with Petraeus and Berger, a decision not to charge Clinton or her aides in mishandling classified information would raise serious questions for the Justice Department in later seeking indictments for others. In fairness to Clinton, there remains the question of intent and whether she knew or should have known of any violations.
In terms of legal strategy, Clinton’s comments would make most criminal defense attorneys wince. There is clearly a huge investigation at the FBI, including the granting of immunity to a prior aide of Clinton.
That brings us back to this continuing narrative of the Clintons and supporters in belittling the investigation and its underlying issues. What Clinton did was, at a minimum, reckless and entirely dismissive of national security interests. To put such secrets at risk for mere convenience or a desire to control your emails only magnifies the lack of judgment. To be calling the investigation a "joke" only reaffirms that same lack of judgment and understanding that led to this breach in security. It may work well as a stump speech but it is truly horrible legal position.
Reprinted with permission from JonathanTurley.org.