Hillary Clinton's Felony. The federal laws violated by the private server

[Martha Stewart Went To Jail For Much Less]

Hillary Rodham Clinton has committed a felony. That is apparent
from the facts and in the plain-language of the federal statute
that prohibits "Gathering, transmitting or losing defense
information", 18 U.S. Code § 793(e) and (f). This offense
carries a potential penalty of ten years imprisonment.

It's called a prima facie case: clear on the basis of known
facts.

It's up to prosecutorial discretion by the US Attorney as to
what charges may be filed and when. Nonetheless, Mrs. Clinton is
clearly chargeable for violation of federal law. As of right
now, the matter is under FBI investigation. This isn't just
about violation of Departmental policy.

The facts:

NYT: F.B.I. Tracking Path of Classified Email From State Dept.
to Hillary Clinton
http://www.nytimes.com/2015/08/15/us/fbi-tracking-path-of-email-
to-hillary-clinton-at-state-department.html?_r=0

WASHINGTON — F.B.I. agents investigating Hillary Rodham
Clinton’s private email server are seeking to determine who at
the State Department passed highly classified information from
secure networks to Mrs. Clinton’s personal account, according to
law enforcement and diplomatic officials and others briefed on
the investigation.

To track how the information flowed, agents will try to gain
access to the email accounts of many State Department officials
who worked there while Mrs. Clinton was secretary of state, the
officials said. State Department employees apparently circulated
the emails on unclassified systems in 2009 and 2011, and some
were ultimately forwarded to Mrs. Clinton.

They were not marked as classified, the State Department has
said, and it is unclear whether its employees knew the origin of
the information.

F.B.I. is also trying to determine whether foreign powers,
especially China or Russia, gained access to Mrs. Clinton’s
private server, although at this point, any security breaches
are speculation.
Four para limit stops here. But, I will in all fairness
stipulate that this article goes on to say that HRC is not at
this point the target of the investigation. However, Reuters has
since reported that her unsecured private server email system
contained "presumed classified" materials. Hillary personally
exchanged such presumed classified information with Sidney
Blumenthal, and those communications were intercepted and
publicly released by a Romanian hacker.

http://www.aol.com/article/2015/08/21/exclusive-dozens-of-
clinton-emails-were-classified-from-the-sta/21225607/

The fact that the email was not marked classified at the time
does not excuse Mrs. Clinton. This is because information
gathered from foreign government sources, a great deal of her
email was so sourced, is presumed classified. Mrs Clinton
received Departmental training on recognizing and handling
classified materials. Presumed classified information is defined
by Executive Order as "The unauthorized disclosure of foreign
government information is presumed to cause damage to the
national security." (see full text of that section of Executive
Order 13526- Classified National Security Information, Sec.
1.1(4)(d), below)

Secretary Clinton was trained in handling of classified
materials, and acknowledges that she understood them. By
transmitting and receiving email correspondence that contained
information gleaned from foreign government sources on an
unauthorized, insecure system, she violated the law. This was
not something she did unwittingly, and that the foreign
government sourced material was not stamped classified is
irrelevant.

On his last day in office, President Bill Clinton pardoned
former CIA Director John Deutch who had committed similar
violations. Deutch left the CIA on December 15, 1996 and soon
after it was revealed that several of his laptop computers
contained classified materials. In January 1997, the CIA began a
formal security investigation of the matter. Senior management
at CIA declined to fully pursue the security breach. Over two
years after his departure, the matter was referred to the
Department of Justice, where Attorney General Janet Reno
declined prosecution. She did, however, recommend an
investigation to determine whether Deutch should retain his
security clearance.

All Deutch did was to take some classified material home with
him to work on his unsecured personal laptops that were
connected to his home commercial internet. In other words,
pretty much what Hillary did on a much larger scale.

Other, lesser, federal officials have been recently prosecuted
for downloading classified materials onto private servers or
media and taking them home, and they were charged even though
the materials was never publicly released and they had no
intention to do so or to harm the United States. Links in
thread: http://www.democraticunderground.com/10141184063

Applicable statutes and Executive Order:

1) 18 U.S. Code § 793 - Gathering, transmitting or losing
defense information

Full copy of this Section of the 1917 Espionage Act is below. It
has been claimed that Hillary did not violate the law because
she didn't intend to injure the U.S. or aid a foreign power.
However, that purpose is not required to convict under this
Subsections (e) and (f) of this statute.

Subsections (a)-(d) and (g)(conspiracy) reference and require
intent to injure the United States. The plain-language of
Subsection (e) and particularly (f) are different:

The difference is this phrase that references purpose in the
first three subsections; "with intent or reason to believe that
the information is to be used to the injury of the United
States, or to the advantage of any foreign nation, Note: "is to
be used"

The language in (e) is close but omits reference to purpose to
injure: "he possessor has reason to believe could be used to the
injury of the United States or to the advantage of any foreign
nation". The word intent is not there. Note: "could be used"

Finally, the offense specified at (f) requires not willful
action, simply a negligent action:

(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—

The differences between Sections (e) and (f) and the various
other offenses covered in Section 793 comes down to the element
of intent to injure the US or act to the advantage of a foreign
power. These are not requisite elements of the offenses covered
under these sections of the Espionage Act.
2) 1950 Federal Records Act

44 U.S. Code § 3106 - Unlawful removal, destruction of records
https://www.law.cornell.edu/uscode/text/44/3106

Current through Pub. L. 114-38. (See Public Laws for the current
Congress.)
The head of each Federal agency shall notify the Archivist of
any actual, impending, or threatened unlawful removal, defacing,
alteration, or destruction of records in the custody of the
agency of which he is the head that shall come to his attention,
and with the assistance of the Archivist shall initiate action
through the Attorney General for the recovery of records he
knows or has reason to believe have been unlawfully removed from
his agency, or from another Federal agency whose records have
been transferred to his legal custody. In any case in which the
head of the agency does not initiate an action for such recovery
or other redress within a reasonable period of time after being
notified of any such unlawful action, the Archivist shall
request the Attorney General to initiate such an action, and
shall notify the Congress when such a request has been made.

That law requires heads of agencies -- no exception for DOS --
to preserve and turn over all official correspondence and
records to the National Archives. She didn't do that until
confronted after a Romanian hacker leaked Hillary's email
correspondence with Blumenthal. Those emails were clearly
official not private. HRC admits to destroying at least 30,000
emails she deemed private and turned over approximately 30,000
her lawyers found to be public documents. However, a number of
other emails have subsequently been turned over and analysed by
news agencies. Reuters reported that a number of them to contain
presumed classified information.

Hillary had also failed to provide these records to meet a FOIA
request and Congressional Committee subpoena, which violates
other federal laws.

Those emails and many like them were most recently found to
contain "presumed classified" materials about US communications
with foreign governments. That was a violation of Executive
Orders, and possibly the 1917 Espionage Act that criminalizes
private retention or mishandling of classified materials.

Intent to injure the U.S. or aid a foreign power is not required
under Sec 793 (e) and (f). The mere fact of unauthorized removal
or destruction of materials the official should have known were
classified are all that is required for conviction under these
parts of the Espionage Act. Hillary should have known.

Removal is obvious from the fact that she ran her private server
out of her own house. There have been several recent convictions
under these provisions of lower-ranking officials, as well as
the forced retirement and referral to the Justice Department of
CIA Director John Deutch for taking home classified materials on
his personal laptop and connecting to the internet.

We know that she sent and exchanged presumed classified
materials with Syd Blumenthal. Read the Reuter article linked.
Bluementhal's email with Hillary on her server was intercepted
and published by a Romanian hacker. That's how this whole thing
came to light.

Sorry, she's done herself in, and has no one else to blame
except some overzealous aides and risk-seeking lawyers.

Potential Prosecution:

At this point, the FBI is investigating the server and network
history before a decision is made whether to proceed with
prosecution and what charges to seek from a federal Grand Jury.

The facts are clear that she was operating her own private
server and that "presumed" classified materials were shared on
that unsecured device. The FBI won't come out and say she's the
target until a series of decisions have been made. That Biden is
signalling he's readying his candidacy tells me that probable
cause exists and the system has already been found to have been
breached. In fact, we know that a Romanian hacker obtained email
containing presumed classified information between Blumenthal
and Hillary, and that she responded to him. We also know that
she was trained not to do anything like this, she acknowledges
that, but she went ahead and continued to did it anyway.

This is serious, not a pseudo-scandal.

_______________
Complete copy of relevant sections of law and Executive Order

18 U.S. Code § 793 - Gathering, transmitting or losing defense
information

Current through Pub. L. 114-38. (See Public Laws for the current
Congress.)
https://www.law.cornell.edu/uscode/text/18/793

(a) Whoever, for the purpose of obtaining information respecting
the national defense with intent or reason to believe that the
information is to be used to the injury of the United States, or
to the advantage of any foreign nation, goes upon, enters, flies
over, or otherwise obtains information concerning any vessel,
aircraft, work of defense, navy yard, naval station, submarine
base, fueling station, fort, battery, torpedo station, dockyard,
canal, railroad, arsenal, camp, factory, mine, telegraph,
telephone, wireless, or signal station, building, office,
research laboratory or station or other place connected with the
national defense owned or constructed, or in progress of
construction by the United States or under the control of the
United States, or of any of its officers, departments, or
agencies, or within the exclusive jurisdiction of the United
States, or any place in which any vessel, aircraft, arms,
munitions, or other materials or instruments for use in time of
war are being made, prepared, repaired, stored, or are the
subject of research or development, under any contract or
agreement with the United States, or any department or agency
thereof, or with any person on behalf of the United States, or
otherwise on behalf of the United States, or any prohibited
place so designated by the President by proclamation in time of
war or in case of national emergency in which anything for the
use of the Army, Navy, or Air Force is being prepared or
constructed or stored, information as to which prohibited place
the President has determined would be prejudicial to the
national defense; or

(b) Whoever, for the purpose aforesaid, and with like intent or
reason to believe, copies, takes, makes, or obtains, or attempts
to copy, take, make, or obtain, any sketch, photograph,
photographic negative, blueprint, plan, map, model, instrument,
appliance, document, writing, or note of anything connected with
the national defense; or

(c) Whoever, for the purpose aforesaid, receives or obtains or
agrees or attempts to receive or obtain from any person, or from
any source whatever, any document, writing, code book, signal
book, sketch, photograph, photographic negative, blueprint,
plan, map, model, instrument, appliance, or note, of anything
connected with the national defense, knowing or having reason to
believe, at the time he receives or obtains, or agrees or
attempts to receive or obtain it, that it has been or will be
obtained, taken, made, or disposed of by any person contrary to
the provisions of this chapter; or

(d) Whoever, lawfully having possession of, access to, control
over, or being entrusted with any document, writing, code book,
signal book, sketch, photograph, photographic negative,
blueprint, plan, map, model, instrument, appliance, or note
relating to the national defense, or information relating to the
national defense which information the possessor has reason to
believe could be used to the injury of the United States or to
the advantage of any foreign nation, willfully communicates,
delivers, transmits or causes to be communicated, delivered, or
transmitted or attempts to communicate, deliver, transmit or
cause to be communicated, delivered or transmitted the same to
any person not entitled to receive it, or willfully retains the
same and fails to deliver it on demand to the officer or
employee of the United States entitled to receive it; or

(e) Whoever having unauthorized possession of, access to, or
control over any document, writing, code book, signal book,
sketch, photograph, photographic negative, blueprint, plan, map,
model, instrument, appliance, or note relating to the national
defense, or information relating to the national defense which
information the possessor has reason to believe could be used to
the injury of the United States or to the advantage of any
foreign nation, willfully communicates, delivers, transmits or
causes to be communicated, delivered, or transmitted, or
attempts to communicate, deliver, transmit or cause to be
communicated, delivered, or transmitted the same to any person
not entitled to receive it, or willfully retains the same and
fails to deliver it to the officer or employee of the United
States entitled to receive it; or

(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.

(g) If two or more persons conspire to violate any of the
foregoing provisions of this section, and one or more of such
persons do any act to effect the object of the conspiracy, each
of the parties to such conspiracy shall be subject to the
punishment provided for the offense which is the object of such
conspiracy.

2) Executive Order 13526 - Classified National Security
Information

https://www.whitehouse.gov/the-press-office/executive-order-
classified-national-security-information

The White House
Office of the Press Secretary
For Immediate Release
December 29, 2009
Executive Order 13526- Classified National Security Information

This order prescribes a uniform system for classifying,
safeguarding, and declassifying national security information,
including information relating to defense against transnational
terrorism.

. . .

(4) the original classification authority determines that the
unauthorized disclosure of the information reasonably could be
expected to result in damage to the national security, which
includes defense against transnational terrorism, and the
original classification authority is able to identify or
describe the damage.

(b) If there is significant doubt about the need to classify
information, it shall not be classified. This provision does not:

(1) amplify or modify the substantive criteria or procedures for
classification; or

(2) create any substantive or procedural rights subject to
judicial review.

(c) Classified information shall not be declassified
automatically as a result of any unauthorized disclosure of
identical or similar information.

(d) The unauthorized disclosure of foreign government
information is presumed to cause damage to the national security.

C) 1950 Federal Records Act

44 U.S. Code § 3106 - Unlawful removal, destruction of records
https://www.law.cornell.edu/uscode/text/44/3106

Current through Pub. L. 114-38. (See Public Laws for the current
Congress.)

US Code
Notes
Authorities (CFR)

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The head of each Federal agency shall notify the Archivist of
any actual, impending, or threatened unlawful removal, defacing,
alteration, or destruction of records in the custody of the
agency of which he is the head that shall come to his attention,
and with the assistance of the Archivist shall initiate action
through the Attorney General for the recovery of records he
knows or has reason to believe have been unlawfully removed from
his agency, or from another Federal agency whose records have
been transferred to his legal custody. In any case in which the
head of the agency does not initiate an action for such recovery
or other redress within a reasonable period of time after being
notified of any such unlawful action, the Archivist shall
request the Attorney General to initiate such an action, and
shall notify the Congress when such a request has been made.

http://www.dailykos.com/story/2015/8/28/1416309/-Hillary-Clinton-
s-Felony-The-federal-laws-violated-by-the-private-server