3. Congressional Testimony of James Comey, House Committee on Oversight and Government Reform, July 7, 2016 (Question: “Did Hillary Clinton give noncleared people access to classified information?” Comey: “Yes.”); Richard Lardner, Associated Press, “Witnesses Refuse to Testify in Hearing on Clinton’s Email,” September 13, 2016.
4. Report by Federal Bureau of Investigation, “Clinton Email Investigation”—11 and 12, September 2, 2016; Report by Office of Inspector General, Department of State, “Office of the Secretary: Evaluation of Email Records Management and Cybersecurity Requirements,” May 25, 2016.
5. Senator Hillary Clinton’s Remarks to the Newspaper Association of America’s Annual Conference in Washington, D.C., April 15, 2008 (“When I am president I will empower the federal government to operate from a presumption of openness, not secrecy. We will adopt a presumption of openness and Freedom of Information Act requests and urge agencies to release information quickly if disclosure will do no harm”), available at http://web.archive.org/web/20080904230344/htpp://www.fas.org/sgp/news/2008/04/clinton041508.html.
6. Report by Federal Bureau of Investigation, “Clinton Email Investigation”—9 and 10, September 2, 2016.
7. Interview of President Barack Obama, CBS News, aired March 8, 2015; Reena Flores, “Obama Weighs In on Hillary Clinton’s Private Emails,” CBS News, March 7, 2015; Kyle Cheney, “Clinton Aide Talked of Needing to ‘Clean’ Up Obama’s Comments on Email Server,” Politico, October 25, 2016; Lisa Lerer, “Top Obama Aides Knew About Clinton’s Private Email in 2009,” Associated Press, June 30, 2015.
8. Evelyn Rupert, “Obama Used Pseudonym in Emails with Clinton,” The Hill, September 23, 2016; Josh Gerstein and Nolan D. McCaskill, “Obama Used a Pseudonym in Emails with Clinton, FBI Documents Reveal,” Politico, September 23, 2016; Daniel Halper, “Obama Used Pseudonym to Talk with Hillary on Private Server,” September 24, 2016.
9. Ibid.
10. Chuck Ross, “Top Clinton Aides Face No Charges After Making False Statements to FBI,” Daily Caller, December 4, 2017.
11. Report by Office of Inspector General, Department of State, “Office of the Secretary: Evaluation of Email Records Management and Cybersecurity Requirements,” May 25, 2016; Steven Lee Myers and Eric Lichtblau, “Hillary Clinton Is Criticized for Private Emails in State Department Review,” New York Times, May 25, 2016.
12. Report by Federal Bureau of Investigation, “Clinton Email Investigation,” p. 12 (“State Diplomatic Security Service [DS] instructed Clinton that because her office was in a SCIF [Sensitive Compartmented Information Facility], the use of mobile devices in her office was prohibited. Interviews of three former DS agents revealed Clinton stored her personal BlackBerry in a desk in DS ‘Post 1,’ which was located within the SCIF on Mahogany Row. State personnel were not authorized to bring their mobile devices into Post 1, as it was located within the SCIF.”).
13. Robert O’Harrow Jr., “How Clinton’s Email Scandal Took Root,” Washington Post, March 27, 2016.
14. Ibid.
15. Ibid. Select Committee on Benghazi, Final Report, July 8, 2016, available at benghazi.House.gov/NewInfo.
16. Rachael Bade, “Meet the Clinton Insider Who Screened Hillary’s Emails,” Politico, September 4, 2015.
17. Statement by FBI director James B. Comey on the Investigation of Secretary Hillary Clinton’s Use of a Personal E-Mail System, FBI National Press Office, July 5, 2016.
18. Michael S. Schmidt, “Hillary Clinton Used Personal Email Account at State Department, Possibly Breaking Rules,” New York Times, March 2, 2015.
19. Zeke J. Miller, “Transcript: Everything Hillary Clinton Said on the Email Controversy,” Time, March 10, 2015.
20. Ibid.
21. Eugene Scott, “Hillary Clinton on Emails: ‘The Facts Are Pretty Clear,’ ” CNN, July 28, 2015.
22. Statement by FBI director James B. Comey on the Investigation of Secretary Hillary Clinton’s Use of a Personal E-Mail System, FBI National Press Office, July 5, 2016.
23. Josh Feldman, “Hillary: Use of Personal Email ‘Clearly Wasn’t the Best Choice,’ ” Mediaite, August 26, 2015; Glenn Kessler, “Clinton’s Claims About Receiving or Sending ‘Classified Material’ on Her Private Email System,” Washington Post, August 27, 2015.
24. Glenn Kessler, “Clinton’s Claims.”
25. Testimony of James B. Comey, FBI Director, House Committee on Oversight and Government Reform, July 7, 2016.
26. Harper Neidig, “Clinton to FBI: Didn’t Know Parenthetical ‘C’ Stood for Confidential,” The Hill, September 2, 2016.
27. Interview with Bill Gavin, former assistant director of the FBI, February 18, 2018.
28. Interview with Oliver “Buck” Revell, former FBI assistant deputy director, March 19, 2018.
29. Hillary Clinton interview with CNN, July 7, 2015, available at http://cnnpressroom.blogs.cnn.com/2015/07/07/cnn-exclusive-hillary-clintons-first-national-interview-of-2016-race/.
30. Glenn Kessler, “Hillary Clinton’s Claim That ‘Everything I Did on Emails Was Permitted,’ ” Washington Post, July 9, 2015.
31. Report by Office of Inspector General, Department of State, “Office of the Secretary: Evaluation of Email Records Management and Cybersecurity Requirements,” May 25, 2016, available at https://oig.state.gov/system/files/esp-16-03.pdf; Ken Dilanian, “Clinton Broke Federal Rules with Email Server, Audit Finds,” NBC News, May 25, 2016.
32. Ibid. Report by Federal Bureau of Investigation, “Clinton Email Investigation,” September 2, 2016; Rosalind S. Helderman and Tom Hamburger, “State Department Inspector General Report Sharply Criticizes Clinton’s Email Practices,” Washington Post, May 25, 2016.
33. Report by Office of Inspector General, Department of State, “Office of the Secretary: Evaluation of Email Records Management and Cybersecurity Requirements,” May 25, 2016, available at https://oig.state.gov/system/files/esp-16-03.pdf.
34. Michael S. Schmidt and Matt Apuzzo, “Hillary Clinton Emails Said to Contain Classified Data,” New York Times, July 24, 2015.
35. Jason Donner, “Judge Orders State Department to Work on Recovering Emails, Suggests Clinton Violated Policy,” Fox News, August 20, 2015; Josh Gerstein, “Judge Says Hillary Clinton’s Private Emails Violated Policy,” Politico, August 20, 2015; Michael S. Schmidt, “Judge Says Hillary Clinton Didn’t Follow Government Email Policies,” New York Times, August 20, 2015.
36. Pamela K. Browne and Catherine Herridge, “Hillary Clinton Signed Non-Disclosure Agreement to Protect Classified Information While Secretary of State,” Fox News, November 7, 2015; Brendan Bordelon, “Clinton Acknowledged Penalties for ‘Negligent Handling’ of Classified Information in State Department Contract,” National Review, November 6, 2015.
37. Chuck Ross, “Document Completely Undermines Hillary’s Classified Email Defense,” Daily Caller, November 6, 2015; Jeryl Bier, “Hillary Signed She Received Briefing on Classified Information, but Told FBI She Hadn’t,” Weekly Standard, September 2, 2016.
38. http://www.foxnews.com/politics/interactive/2015/03/05/state-department-cable-june-28-2011.html.
39. Report by Federal Bureau of Investigation, “Clinton Email Investigation,” p. 18, September 2, 2016; Byron York, “From FBI Fragments, A Question: Did Team Clinton Destroy Evidence Under Subpoena,” Washington Examiner, September 3, 2016; DeTroy Murdock, “Obstruction of Justice Haunts Hillary’s Future,” National Review, September 8, 2016.
40. Report by Federal Bureau of Investigation, “Clinton Email Investigation,” p. 19, September 2, 2016.
41. Cause of Action, “Legal Analysis of Former Secretary of State Hillary Clinton’s Use of a Private Server to Store Email Records,” August 24, 2015, available at http://causeofaction.org/wp-content/uploads/2015/08/Hillary-Clinton-Email-Memo-8.24.15.pdf.
42. Interview with Steve Pomerantz, former assistant director of the FBI, March 14, 2018.
43. Interview with Joseph diGenova, former U.S. attorney for the District o
f Columbia and former independent counsel, January 26, 2018.
44. United States Code, 44 U.S.C. 3101 et al., “Records Management by Agency Heads, General Duties”; Foreign Affairs Manual, 5 F.A.M. 441(h)(2), et al.
45. United States Code, 18 U.S.C. 641, “Public Money, Property or Records.”
46. United States Code, 18 U.S.C. 2071(b), “Concealment, Removal or Mutilation Generally.”
47. Memorandum of Patrick F. Kennedy, Under Secretary of State for Management, “Senior Officials’ Records Management Responsibilities,” August 28, 2014 (Kennedy: “All records generated by Senior Officials belong to the Department of State”), available at http://goo.g1/bT6qLz; U.S. Department of State, Department Notice, Message from Under Secretary for Management Patrick F. Kennedy Regarding State Department Records Responsibilities and Policy, October 17, 2014, available at http://goo.g1/sDixrN.
48. United States v. Rosen, 352 Fed. Su—915 (1972).
49. David E. Kendall, letter to Trey Gowdy, chairman of the House Select Committee on Benghazi, March 27, 2015, available at http://goo.g1/jXpS5x; Lauren French, “Gowdy: Clinton Wiped Her Server Clean,” Politico, March 27, 2015.
50. United States Code, 18 U.S.C. 1001, “Statements or Entries Generally.”
51. United States Code, 18 U.S.C. 1505, “Obstruction of Justice Proceedings Before Departments, Agencies and Committees”; United States Code, 18 U.S.C. 1515(b), “Definitions for Certain Provisions, General Provision.”
52. Statement by FBI Director James B. Comey on the Investigation of Secretary Hillary Clinton’s Use of a Personal E-Mail System, FBI National Press Office, p. 3, July 5, 2016.
53. United States Code, 18 U.S.C. 793(f), “Gathering, Transmitting or Losing Defense Information.”
54. Ibid., Sections (d) and (e).
55. United States Code, 18 U.S.C. 1924(a), “Unauthorized Retention of Removal of Classified Documents or Material.”
56. United States Code, 18 U.S.C. 371, “Conspiracy to Commit Offense or to Defraud United States”; United States Code, 18 U.S.C. 286, “Conspiracy to Defraud the Government with Respect to Claims.”
57. Zeke J. Miller, “Transcript: Everything Hillary Clinton Said on the Email Controversy,” Time, March 10, 2015; Alexandra Jaffe and Dan Mercer, “Hillary Clinton: I Used One Email ‘For Convenience,’ ” CNN, March 11, 2015; Amy Chozick and Michael S. Schmidt, “Hillary Clinton Tries to Quell Controversy Over Private Email,” New York Times, March 10, 2015.
58. Ibid.
59. United States Code, 44 U.S. C. 3101, “Records Management by Agency Heads, General Duties”; Code of Federal Regulations, 36, CFR 1236.22; Department of State, Foreign Affairs Manual, 5 FAM 443.1.
60. United States Code, 18 U.S.C. 2071, “Concealment, Removal, or Mutilation Generally.”
61. United States Code, 18 U.S.C. 1924, “Unauthorized Removal and Retention of Classified Documents or Material”; United States Code, 18 U.S.C. 798, “Disclosure of Classified Information”; United States Code, 18 U.S.C. 793(f), “Gathering, Transmitting or Losing Defense information.”
62. Byron Tau and Peter Nicholas, “State Department Lacked Top Watchdog During Hillary Clinton Tenure,” Wall Street Journal, March 24, 2015.
63. Interview with Joseph diGenova, former U.S. attorney for the District of Columbia and former independent counsel, January 26, 2018.
64. Interview with Doug Burns, former assistant U.S. attorney for the Eastern District of New York, March 23, 2018.
Chapter 2: Comey Contorts the Law to Clear Clinton
1. Statement by FBI Director James B. Comey on the Investigation of Secretary Hillary Clinton’s Use of a Personal Email System, FBI National Press Office, July 5, 2016.
2. Ibid.
3. Ibid.
4. Interview with Danny Coulson, former deputy assistant director of the FBI, February 12, 2018.
5. Interview with Steve Pomerantz, former assistant director of the FBI, March 14, 2018.
6. Carrie Johnson, “Officials Scrutinized Over Classified Information, but Rarely Found Criminal,” National Public Radio, April 7, 2016.
7. Ibid.
8. Ibid.
9. Associated Press, “Navy Engineer Sentenced for Mishandling Classified Material,” Navy Times, July 29, 2015.
10. Jennifer Rizzo, “Feds Torpedo Navy Sailor’s ‘Clinton Defense,’ ” CNN, August 17, 2016.
11. Kristina Wong, “Troops Using ‘Clinton Defense’ in Classified Information Cases,” The Hill, August 20, 2016.
12. John Bowden, “Trump Pardons Navy Sailor Who Used ‘Clinton Defense,’ ” The Hill, March 9, 2018.
13. Kelley Beaucar Vlahos, “Ex-Officials Prosecuted for Mishandling Government Information See ‘Double Standard’ in Clinton Case,” Fox News, August 17, 2015.
14. Statement by FBI Director James B. Comey on the Investigation of Secretary Hillary Clinton’s Use of a Personal Email System, FBI National Press Office, July 5, 2016.
15. Ann E. Maimow, “Ex-NSA Contractor Pleads Not Guilty to Spying Charges in Federal Court,” Washington Post, February 14, 2017.
16. Statement by FBI Director James B. Comey on the Investigation of Secretary Hillary Clinton’s Use of a Personal Email System, FBI National Press Office, July 5, 2016.
17. Interview with Danny Coulson, former deputy assistant director of the FBI, February 12, 2018.
18. Ibid.
19. United States Code, 18 U.S.C. 793(f), “Gathering, Transmitting or Losing Defense Information.”
20. Some lawyers and legal commentators have argued that prosecutors must still prove “intent” under the “gross negligence” provision of the above statute. Think about that for just a moment. How exactly does a person intend to do something in a grossly negligent manner? People either intend to commit an act or they perform an act in a grossly negligent manner. Can both really be accomplished contemporaneously? They cannot. The former reflects a specific state of mind, while the latter tends to reflect the absence of it.
Those who conflate “intent” with “gross negligence” have relied mistakenly on a 1941 Supreme Court case called Gorin v. United States. In Gorin, the high court was interpreting the explicit language of the original Espionage Act of 1917 when it held that “intent” must be proven. However, seven years after the Gorin decision, the Act was amended and supplanted by several sections of 18 U.S.C. 793, including the “gross negligence” provision. Thus, Gorin has no application or relevance to section (f) because that section of the law did not exist at the time the court rendered its ruling.
In the decades since the Gorin case, courts have explained that “intent” is required for other sections of the statute, but not section (f), which established a lower threshold of “gross negligence.” For example, in United States v. McGuiness, the court stated that “it is clear that Congress intended to create a hierarchy of offenses against national security, ranging from ‘classic spying’ to mere losing classified materials through gross negligence.”
In the famous “Pentagon Papers” case, Justice Byron White wrote that the district court erred in relying on Gorin when it determined that the government needed to prove “only willful and knowing conduct.” White noted that Gorin “arose under other parts of the predecessor (law) . . . parts that imposed different intent standards not repeated in” the successor statute.
Sources: Dan Abrams, “Trump Is Wrong, Hillary Clinton Shouldn’t Be Charged Based On What We Know Now,” Lawandcrime.com, March 2, 2016 (originally published on LawNewz.com, January 29, 2016); Rachel Stockman, “Despite ‘Bombshell’ New Emails, Hillary Clinton Probably Still Didn’t Commit a Crime,” Lawandcrime.com, October 29, 2016. United States v. McGuinness, 35 M.J. 149, 153 (CMA 1992). New York Times Co. v. United States, 403 U.S. 713 (1971).
21. United States Code, 18 U.S. C. 793(d) and (e), “Gathering, Transmitting or Losing Defense Information.”
22. United States Code, 18 U.S. C. 793, sections (a) through (d).
23. Stephen L. Vladeck, “Prosecuting Lea
ks Under U.S. Law,” Justsecurity.org, November 2015.
24. Statement by FBI Director James B. Comey on the Investigation of Secretary Hillary Clinton’s Use of a Personal Email System, FBI National Press Office, July 5, 2016.
25. Testimony of James B. Comey, Director of the FBI, before the House Oversight Committee, July 7, 2016, available at https://www.youtube.com/watch?v=xQ6hJb9SNlw.
26. Ibid.
27. United States Code, 18 U.S.C. 1924(a), “Unauthorized Removal and Retention of Classified Documents or Material.”
28. Zeke J. Miller, “Transcript: Everything Hillary Clinton Said on The Email Controversy,” Time, March 10, 2015.
29. Report by Federal Bureau of Investigation, “Clinton Email Investigation,” September 2, 2016; Report by Office of Inspector General, Department of State, “Office of the Secretary: Evaluation of Email Records Management and Cybersecurity Requirements,” May 25, 2016.
30. Pamela K. Brown and Catherine Herridge, “Hillary Clinton Signed Non-Disclosure Agreement to Protect Classified Information While Secretary of State,” Fox News, November 7, 2015; Brendan Bordelon, “Clinton Acknowledges Penalties for ‘Negligent Handling’ of Classified Information in State Department Contract,” National Review, November 6, 2015.
31. Andrew McCarthy, “Restoring the Rule of Law to the Protection of Classified Information,” National Review, January 6, 2018.
32. Sonam Sheth, “The FBI Agent Mueller Ousted Was Behind 2 Critical Turning Points in the Clinton and Trump-Russia Investigations,” Business Insider, December 4, 2017.
33. John Solomon, “Early Comey Draft Accused Clinton of Gross Negligence on Emails,” The Hill, November 6, 2017.
34. Jake Gibson and Justin Berger, “Comey Edits Revealed: Remarks on Clinton Probe Were Watered Down, Documents Show,” Fox News, December 14, 2017; Max Kutner, “Comey’s FBI Initially Believed Clinton Was ‘Grossly Negligent’ in Handling Classified Emails,” Newsweek, November 7, 2017.
35. Interview with Doug Burns, former assistant United States attorney for the Eastern District of New York, March 23, 2018.
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