Hillary Clinton is a high-level government official. Arguably, she’s a unique case. However, there have been other high-level government officials found guilty of violating federal law in regards to handling classified information. This US News and World Reports article from January 2016 provides a nice history of those past cases, and can possibly shed some light on whether a criminal indictment against Hillary Clinton is more, or less likely.
Although there are a variety of different avenues for prosecuting the mishandling of classified information, the most common statutes used by the FBI involve the unlawful removal or retention of classified materials, or the mishandling of classified information.
Here’s the language of those two statutes:
18 U.S. Code 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.
18 U.S. Code 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.
The first statute is frequently used for high-level officials because the officials plead down to the misdemeanor offense. The second statute is typically a felony offense.
DAVID PETRAEUS
The best-known recent prosecution involves the former CIA director who pleaded guilty last year to a misdemeanor count of unlawful removal and retention of classified materials. He was spared prison as part of his plea and was given two years' probation by a judge who faulted him for a "serious lapse in judgment."
The retired four-star Army general admitted that he loaned his biographer, Paula Broadwell, with whom he was having an affair, eight binders containing highly classified information regarding war strategy, intelligence capabilities and identities of covert officers. FBI agents seized the binders from an unlocked desk drawer at his home, instead of a secure facility that's required for handling classified material.
One critical distinction is that while Clinton has repeatedly said she didn't send or receive anything that was classified at the time — something the State Department now says it's investigating — the Petraeus plea deal makes clear that he knew the information he provided was classified. He told Broadwell in a recording revealed by prosecutors that the binders had "code-word stuff in there."
When questioned by the FBI, he denied having given Broadwell classified information, though he avoided being charged with making a false statement.
The outcome drew accusations of a double standard for senior brass from defense lawyers who asserted that their less-influential clients wouldn't have been treated with such leniency.
OK, so Petraeus pled guilty to violating Section 1924 because the FBI “seized the binders from an unlocked desk drawer at his home, instead of a secure facility that's required for handling classified material.” That was all that was required to find Petraeus guilty of a Section 1924 violation. Classified material was found at his home instead of a secure facility. By the way, this was Top Secret, codeword classified material.
How about Hillary?
Her personal, unauthorized server located in her home had more than 2,000 classified e-mails, including 22 Top Secret e-mails. The IGs from State and the Intelligence Communities claim that at least some of this material:
… were not retroactively classified by the State Department; rather these emails contained classified information when they were generated and, according to IC classification officials, that information remains classified today. This classified information should never have been transmitted via an unclassified personal system.
But, Petraeus was pleading down, and passing classified info to his mistress is a different sort of violation of the law. Maybe Hillary’s situation is just substantially less damaging?
JOHN DEUTCH
Deutch was CIA director from May 1995 until December 1996. He came under Justice Department investigation after his resignation when classified material was found on his home computer in Maryland.
An internal CIA investigation found that he stored and processed hundreds of files of highly classified material on unprotected home computers that he and family members also used to connect to the Internet, making the information potentially vulnerable to hackers.
A report by the Defense Department inspector general found that Deutch had failed to follow "the most basic security precautions" and faulted him for rejecting Pentagon requests that security systems be installed on his home computers.
Deutch apologized for his actions and was pardoned by President Bill Clinton before the Justice Department could file a misdemeanor plea deal for mishandling government secrets.
So Deutch stored and processed hundreds of files of highly classified material on an unprotected home computer that was connected to the Internet. He failed to follow basic security procedures, and would have been charged , but for a pardon by Bill Clinton.
How About Hillary?
Hillary stored thousands of classified e-mails on an unauthorized server located in her home. Although the server was protected in accordance with high-level commercial security standards, it was never reviewed by the State Department’s IRM. No U.S. government agency ever provided U.S. government-level security to the server.
As the IG report makes clear, it was also potentially vulnerable to hackers, including a hacking incident that resulted in the need to shut down the server rather than allow access. The Clinton campaign, and some anonymously sourced news reporting, say that no one has proven that any hacking attempt succeeded, but, then again, no one showed that Deutch’s behavior lead to any hackers gaining information. We do know that one Romanian hacker claims to have successfully hacked Hillary’s e-mail, and did successfully hack the e-mail of Sydney Blumenthal, who corresponded with Hillary on her private e-mail.
SANDY BERGER
Berger was the national security adviser during Bill Clinton's second term. After leaving office, he found himself in trouble for destroying classified documents.
Berger, who died in December at age 70, pleaded guilty in 2005 to illegally sneaking classified documents from the National Archives by stuffing papers in his suit. He later destroyed some of them in his office and lied about it. The materials related to terror threats in the United States during the 2000 millennium celebration.
He pleaded guilty to a misdemeanor count of unauthorized removal and retention of classified material, and though he avoided prison time, he lost access to classified material for three years.
A judge fined him $50,000, higher than the amount recommended by prosecutors.
Berger called his actions a lapse in judgment that came as he was preparing to testify before the Sept. 11 commission that examined the events leading up to the 2001 attacks.
"I let considerations of personal convenience override clear rules of handling classified material," he said at the time.
I just kept this one in here because it still amuses me to think of Sandy Berger smuggling classified information out of the archives in his suit.
BRYAN NISHIMURA
Nishimura, a former Naval reservist in Afghanistan in 2007 and 2008 and a regional engineer for the U.S. military, was investigated for downloading and storing classified information on his personal electronic devices.
Prosecutors say he carried the materials with him off-base in Afghanistan and took classified Army records to his home in Folsom, California, after his deployment ended.
His lawyer, William Portanova, said Nishimura never intended to break the law but was a "pack rat" who thought nothing of warehousing Army records at home alongside personal belongings.
FBI agents who searched his home found classified military records, both in hard copy and digital form. Nishimura also admitted to investigators that he had destroyed some of the information.
Nishimura pleaded guilty in July to unauthorized removal and retention of classified materials. A judge fined him $7,500, and he was ordered to surrender his security clearance.
The violation was a technical and unintentional one, Portanova said, but one that the Justice Department nonetheless thought it needed to punish "to make its point."
Mr. Nishiura was prosecuted in July 2015 for keeping classified records on his personal device. The violations took place when he was serving in Afghanistan in 2007 and 2008. It’s unclear the level of classification involved. As the Justice Department pointed out, the violation was “technical and unintentional” but the Department needed to make a point.
How About Hillary?
I have no idea whether you’d consider Hillary’s use of a private server “technical” or not based on the DOJ’s standard, but it certainly isn’t “unintentional.” She quite intentionally established a private system to store and handle classified information located in her home without authorization from the State Department, and more than 2,000 e-mails containing classified information were stored on it.
Back in January, when U.S. News and World Reports interviewed Stephen Vladeck, an American University law professor and national security law expert, he concluded that:
[I]t would be a stretch, based on what's now known, to think Clinton could be charged under existing statutes for her behavior. The few relevant laws on the books almost certainly weren't written with this situation in mind.
"This is an area where the government tends not to test the margins too often," Vladeck said.
If Hillary had State Department authorization to use her private server, I could understand running for president with an active FBI investigation underway. Now that we know that no one at State granted Hillary permission? How could you possibly put yourself forward as a qualified candidate? I think the FBI could easily charge her with, at least, a Section 1924 violation. They could have done that months ago.
I simply do not believe that any candidate for president could possibly win an election if they were charged with even a misdemeanor violation involving classified material, especially if they appeared to lie about the details. This is too risky for the party.