Watchdog: Two National Security Laws Appear Broken in Clinton Email Scandal

Hillary aides refused judge’s order on returning documents

Hillary Rodham Clinton
Hillary Rodham Clinton / AP
August 20, 2015

Hillary Clinton and two aides appear to have violated two national security laws by sending classified information on a private email server, according to a former Army counterintelligence agent and investigator for a public interest law group.

Additionally, the two Clinton aides, Huma Abedin and Cheryl Mills, disregarded a federal judge’s order this month requiring both to make sworn statements to the court that all government documents in their possession will be returned to federal officials, said Chris Farrell, director of investigations for Judicial Watch, the law group.

"What we have is a secretary of state, the only cabinet official in our history, who established her own private email server … in an effort to avoid the normal protocols for unclassified and classified communications. It’s an end run," he said.

Farrell, in a briefing on the Clinton email affair at the Judicial Watch offices, said supporters of Clinton have sought to portray the use of the private email system to send classified information as a minor administrative matter.

"It is not," he said. "It is a national security crime, and should be a national security crime investigation," he said, noting that Clinton created the private email server a week before she took up her duties at Foggy Bottom, indicating that she planned to avoid using official email that must be stored under federal rules.

Two laws apply to the mishandling of classified data on unsecure networks, Farrell said.

The first is 18 USC Sec. 1924, which outlaws the unauthorized removal and storage of classified information. Penalties can include fines and imprisonment for up to one year.

That statute was used to prosecute retired Army General David Petraeus, a former CIA director who provided classified documents to his mistress and biographer, Paula Broadwell. Petraeus was sentenced to two years’ probation and a $40,000 fine as part of a plea deal in March.

A second federal statute that prosecutors could use to charge Clinton and her aides is 18 USC Sec. 793, a more serious felony statute Farrell described as a "hammer."

That law covers national defense information and people who misuse it to injure the United States or benefit a foreign power.

Those convicted of violating that law face fines and up to 10 years in prison.

Farrell said he that as an Army counterintelligence officer, he has conducted investigations in the past that are similar to the Clinton email probe. He also worked at a special security officer who was in charge of SCIFs—special facilities used for handling sensitive intelligence.

"When it comes the law on these, intent doesn’t matter," Farrell said. Mishandling top-secret information should bring down the full weight of the law on violators, he said.

The Clinton email matter is a "serious national security crime issue," Farrell said. "It’s not two agencies fighting over classification after the fact."

Judicial Watch currently has 18 lawsuits pending against the State Department seeking access to records under the Freedom of Information Act.

The State Department disclosed to Judicial Watch earlier this year that it had discovered an "another universe" of information sought by the group under FOIA on Clinton’s emails involving several cases that had been closed earlier. The data followed discovery of the private email server used by Clinton.

A hearing on one of the lawsuits is set for Thursday before Judge Emmet G. Sullivan of the United States District Court for the District of Columbia, who recently ordered Clinton, Abedin, and Mills to make the sworn statements regarding federal documents in their possession.

According to Farrell, only Clinton supplied the sworn statement that promised to return all government data and not destroy any records involved in the case. Abedin and Mills, however, did not and instead supplied the court with statements from their lawyers.

Thursday’s court hearing will be the latest turn in an unfolding security scandal involving the former secretary of state that has the potential to undermine her bid to win the Democratic presidential nomination.

Clinton is the leading Democratic candidate, and earlier was dogged by reports that she used the non-profit Clinton Foundation for questionable fundraising.

The email scandal burst into public view earlier this month after the inspector general for the U.S. intelligence community revealed that some of the thousands of private emails held by Clinton, secretary of state from 2009 to 2013, contained top-secret information, including data labeled "special intelligence" and "TK" for Talent Keyhole, a code word for communications or imagery intelligence derived from satellites.

The FBI has seized Clinton’s email server that once held more than 60,000 emails. Additionally, a thumb drive was from Clinton’s lawyer taken into FBI custody. The bureau is known to have strong capabilities for restoring erased electronic data from storage media.

Some 305 emails from the server were identified as containing classified information.

Clinton told reporters jokingly this week when asked whether she had wiped clean the server, "What, like with a cloth or something?"

Farrell said he has not seen evidence that anyone associated with the former secretary of state removed classified documents from secure networks and then rewrote the classified information into the private email account, or removed classification markings from secret material.

However, he said he believes that the FBI will be investigating that possibility.

"What I have seen is the excerpting and maybe verbatim copying" of classified information, he said, adding that the nature of the information describes is "clearly SCI material."

Farrell said his investigation of the matter indicates that Clinton aides likely read classified documents and then digested and excerpted the material into the unclassified email system.

Clinton has said she never sent any classified information on the email server and did not receive any classified information that was marked as such.

"So she’s relying on the idea that somehow her deputies, Huma Abedin and Jay Sullivan, would excerpt the pertinent points out of a classified cable," Farrell said. "They would pull those nuggets out of the classified version and restate it in an regular, unclassified conventional email on her server. And that’s what we’ve come across now."

The Clinton campaign did not return an email seeking comment.

Said Farrell: "Here’s the bottom line: The secretary of state in an extraordinary and unprecedented move, set up a private email server to circumvent the conventional government classified and unclassified networks. Her aides and assistants excerpted code-word material from various classified message traffic and then took those excerpts and then sent them to her over an unclassified email server."

A Romanian hacker named Gucifer hacked into the email account of Sidney Blumenthal, a Clinton associate, and was able to discern parts of conversations between Blumenthal and Clinton.

"If the Romanian hacker Gucifer got to her email via Sidney Blumenthal, which did happen, imagine what a national intelligence asset, the national intelligence services of the Russians or the Chinese could do?" Farrell asked.