The Hillary Clinton campaign has been engaged in a major spat with the New York Times. On July 23, the paper published a story reporting that inspectors general at the State Department and the intelligence community had issued a criminal referral to the Justice Department regarding her handling of classified information while serving as Secretary of State.
False, says the campaign in a series of withering rebuttals. And the Times has backed away, issuing two separate corrections, which note that the referral was not criminal in nature, was not directed at Clinton — and merely alerted the Justice Department to the existence of mishandled classified information for “counterintelligence” purposes.
Without a doubt, the Times’ treatment of the story has been sloppy and the Clinton campaign had good reason to pounce. But the bad news for Team Hillary is that this issue is going to fester. Indeed, over the next months, given the law, precedent and facts already on the record, the imbroglio holds the potential to kill her candidacy.
The law is plain. Under the Espionage Act of 1917, “gross negligence” in the handling of national defense information is a punishable offense. If such information is “removed from its proper place of custody,” the responsible government official faces a maximum penalty of 10 years imprisonment.
The Obama Justice Department has been making vigorous use of this and related statutes that punish the mishandling of government secrets, prosecuting leakers of classified information in the fiercest crackdown since Richard Nixon’s plumbers. The highest ranking official hit to date is Gen. David Petraeus, whose secrecy violations resulted in a fine and two years of probation.
Now comes the case of Hillary Clinton’s use for official purposes of a private email server housed in her Chappaqua home. Even though the referral to the Justice Department was not criminal in nature, the facts do not look good for Clinton.
According to the inspectors general, four of a sample of 40 emails drawn from the 30,000 emails the former secretary of state turned over to the State Department late last year contained information that was classified at the time it was generated and remains classified today.
Clinton says in her defense that the emails were not marked “classified” at the time. But that may only reflect the fact that she herself — negligently — did not mark them so as required.
McClatchey News Service reports that among the emails are secrets generated by five separate U.S. intelligence agencies. A State Department official has cautioned that hundreds of other Clinton emails may also contain classified material. A release of documents on Friday revealed 37 more replete with government secrets.
This is emerging as a major security breach. A private server that could readily be penetrated by hackers or a foreign intelligence agency would certainly not qualify as a “proper place of custody” for government secrets. The national security division of the Justice Department will be compelled to investigate.
How this will play out is impossible to predict. But there is a precedent of surpassing importance. John Deutch was Bill Clinton’s CIA chief from May 1995 until December 1996. Days after his CIA directorship came to an end, technicians discovered classified information on his personal computer at his Bethesda, Md., home.
Deutch’s violations were not trivial. Throughout his tenure in office, according to a 2000 postmortem by the CIA’s inspector general, he had “continuously processed” a “large volume” of “highly classified” information on computers configured only for unclassified use.
When the breach was first uncovered, an internal investigation began at the CIA, but so did a slow-rolling cover-up. The 2000 postmortem noted that the discovery of a security violation of this magnitude would ordinarily “be expected to generate a crimes report” to the Department of Justice. However, a gaggle of Deutch’s own appointees to the CIA, still in place following his departure, “determined such a report was not necessary.”
Only after a year of spinning wheels did CIA managers finally refer the matter to the Justice Department. Attorney General Janet Reno responded initially with the most minimal conceivable action, suggesting that Deutch’s security clearance be reviewed. But after the CIA’s critical report became public in 2000, igniting a firestorm on Capitol Hill, prosecutors swung into high gear.
Yet just as Deutch was ready to agree to a plea bargain, the matter came to an abrupt end. On Jan. 20, 2001, his last day in office, President Clinton issued a surprise pardon to his wayward CIA director.
Clearly, we’re far away from that possibility. But we just might be heading down the road.
Schoenfeld, a senior fellow at the Hudson Institute and former senior adviser to Mitt Romney’s presidential campaign, is the author of “Necessary Secrets: National Security, the Media and the Rule of Law.”