WASHINGTON — News that Hillary Clinton’s home email server contained top-secret messages brings renewed attention to the security of her mail system and to the laws and regulations that control classified information.
The new disclosure, and the question of whether it exposes her to more serious legal problems, was certain to escalate political heat on the Democratic presidential candidate ahead of Monday’s Iowa caucuses, the first contest on the 2016 nominating calendar.
FBI Director James Comey, whose agency is looking into the setup of the server, has said only that the investigation is being conducted without regard for politics. Officials have given no public hint as to when or how the probe will be finished.
Stephen Vladeck, an American University law professor and national security law expert, said it 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.
It’s not uncommon for workers with access to classified material to mishandle it, and by far the bulk of those cases don’t attract the attention of federal prosecutors.
But when the Justice Department does pursue a case, it often relies on a statute that bars the unlawful removal and retention of classified documents. That low-level charge, meant for cases in which defendants improperly hold onto information that they know to be classified, carries a fine and maximum yearlong prison sentence and is reserved for people who have “really, really screwed up,” Vladeck said.
Other, more serious laws make it a crime to knowingly disclose classified information to someone not authorized to receive it, and threaten punishment for anyone who through “gross negligence” allows national defense information to be removed from its proper place of custody.
Each case that’s resulted in prosecution has unique facts, making comparisons difficult, but investigators invariably take into account questions of knowledge, potential damage to national security, who sent, received or stored the information, and whether the material was classified at the time of transmission.
Some examples of past cases concerning classified information:
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.
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.”
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.
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 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 was pardoned by President Bill Clinton before the Justice Department could file a misdemeanor plea deal for mishandling government secrets.
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