Experts see no criminal trouble for Clinton so far
WASHINGTON — Experts in government secrecy law see little possibility of criminal action against Hillary Clinton or her top aides in connection with now-classified information sent over unsecure email while she was secretary of state, based on the public evidence thus far.
Some Republicans, including GOP presidential candidate Donald Trump, have called Clinton’s actions criminal and compared her situation to that of David Petraeus, the former CIA director who was prosecuted for giving top-secret information to his paramour. Others have cited the case of another past CIA chief, John Deutch, who took highly classified material home.
But in both of those cases, no one disputed that the information was highly classified and in many cases top secret. Petraeus pleaded guilty to a misdemeanor; Deutch was pardoned by President Bill Clinton.
By contrast, there is no evidence of emails stored in Hillary Clinton’s private server bearing classified markings. State Department officials say they don’t believe that emails she sent or received included material classified at the time. And even if other government officials dispute that assertion, it is extremely difficult to prove anyone knowingly mishandled secrets.
“How can you be on notice if there are no markings?” said Leslie McAdoo, a lawyer who frequently handles security-clearance cases.
Monday night, the State Department released roughly 7,000 pages of Clinton’s emails, including about 150 emails that have been censored because they contain information that is now deemed classified.
Department officials said the redacted information was classified in preparation for the public release of the emails and not identified as classified at the time Clinton sent or received the messages. All of the censored material in the latest group of emails is classified at the “confidential” level, not at higher “top secret” or compartmentalized levels, they said.
“It’s somewhere around 150 that have been subsequently upgraded” in classification, State Department spokesman Mark Toner told reporters.
Still, the increasing amounts of blacked-out information from Clinton’s email history as secretary of state surely will prompt additional questions about her handling of government secrets while in office. The Democratic presidential candidate now says her use of a home email server for government business was a mistake, and government inspectors have pointed to exchanges that never should have been sent via unsecured channels.
Toner insisted that nothing encountered in the agency’s review of Clinton’s documents “was marked classified.”
Government employees are instructed not to paraphrase or repeat in any form classified material in unsecured email.
Monday evening’s release amounts to more pages of email than disclosed in the previous three months combined. Once public, it will mean roughly a quarter of all of the correspondence Clinton qualified as “work emails” has been published.
Clinton’s critics have focused on the private email server Clinton used while in office and suggested that she should have known that secrets were improperly coursing through an unsecure system, leaving them vulnerable to foreign intelligence agencies. But to prove a crime, the government would have to demonstrate that Clinton or aides knew they were mishandling the information — not that she should have known.
A case would be possible if material emerges that is so sensitive Clinton must have known it was highly classified, whether marked or not, McAdoo said. But no such email has surfaced.