Repeating what he had said in a statement on Tuesday, FBI Director James Comey told the House Oversight and Government Reform Committee today he would not recommend prosecuting Hillary Clinton for mishandling classified information because she had no criminal intent.
Comey admitted to the committee that any “reasonable person” would have known that putting classified documents on a private server was a security risk, but Clinton seemed to lack the “sophistication” to realize this basic fact.
While others, such as Andrew McCarthy at National Review, have made the case that “lack of intent to harm our country is irrelevant” because “[p]eople never intend the bad things that happen due to gross negligence,” Comey stuck to his assertion that intent matters. The FBI director said there was no evidence that Clinton intended to violate any laws, and he refused to bring criminal charges against someone who didn’t intend to commit a crime.
One serious problem with this conclusion is that it assumes Clinton was somehow ignorant of the proper handling of classified documents, or if she wasn’t ignorant, then she thought she was complying with the law. The fact is she did know how to properly identify and handle classified information because she had been informed of the law and trained in proper procedures. Given the detail of knowledge and the training involved, there is no reasonable way she could have been unaware of the criminality of her own actions.
Hillary Clinton Was Trained in Classified Information
As secretary of State, Clinton had been trained by the Bureau of Diplomatic Security in the “Safe Handling of Information.” In addition, she was fully aware of President Obama’s 2010 executive order on “Classified National Security Information” that requires heads of departments to be informed of the requirements regarding classified information.
As reported by Kristinn Taylor of Gateway Pundit in 2015, Clinton received training in handling classified information as stated in the “Diplomatic Security 2009 Year in Review” booklet. Under the heading “Safe Handling of Information” on page 21, the bureau boasted of its efforts to quickly bring new Obama administration appointees up to speed on security issues.
DS also provides new Department of State employees with training in the proper handling of sensitive and classified information.
DS contributed to the smooth transition of U.S. government officials by providing more than 180 members of the new Obama administration–ranging from Secretary Clinton to various ambassadors and other presidential appointees–with security training, and immediate access to highly classified systems and other information products critical to their new roles.
In 2009, DS delivered information security educational briefings to nearly 6,000 State Department employees, contractors and personnel from other government agencies.
Clinton was also given the authority “to personally classify as ‘Top Secret’ government intelligence such as the emails containing reportedly unlabeled highly classified information she received on the private home-brew server Clinton used throughout her four-year tenure as secretary.”
In addition to her Diplomatic Security training, Clinton, as secretary of State, was bound by President Obama’s 2010 executive order on classified information. That order “prescribes a uniform system for classifying, safeguarding, and declassifying national security information, including information relating to defense against transnational terrorism.”
As a “classification authority” and an agency head, Clinton was required to have the necessary training regarding the identification and handling of the materials Comey says she carelessly mishandled.
Get Trained Or Lose Your Clearance and Face Prosecution
According to the president’s order, “Every person who has met the standards for access to classified information in paragraph (a) of this section shall receive contemporaneous training on the proper safeguarding of classified information and on the criminal, civil, and administrative sanctions that may be imposed on an individual who fails to protect classified information from unauthorized disclosure.”
All original classification authorities must receive training in proper classification (including the avoidance of over-classification) and declassification as provided in this order and its implementing directives at least once a calendar year. Such training must include instruction on the proper safeguarding of classified information and on the sanctions in section 5.5 of this order that may be brought against an individual who fails to classify information properly or protect classified information from unauthorized disclosure. Original classification authorities who do not receive such mandatory training at least once within a calendar year shall have their classification authority suspended by the agency head or the senior agency official designated under section 5.4(d) of this order until such training has taken place. A waiver may be granted by the agency head, the deputy agency head, or the senior agency official if an individual is unable to receive such training due to unavoidable circumstances. Whenever a waiver is granted, the individual shall receive such training as soon as practicable.
As someone who was fully aware of the president’s order, Clinton knew how to properly identify classified materials and how to handle them. Clinton claims she did not transmit any classified information to her private server, but Comey countered this claim, saying the documents were clearly marked as classified. Clinton, who was given classification authority, would have been able to identify these documents.
Not only that, the order by the president clearly prohibits removing classified information from “official premises without proper authorization.”
(f) Consistent with law, executive orders, directives, and regulations, an agency head or senior agency official or, with respect to the Intelligence Community, the Director of National Intelligence, shall establish uniform procedures to ensure that automated information systems, including networks and telecommunications systems, that collect, create, communicate, compute, disseminate, process, or store classified information:
(1) prevent access by unauthorized persons; (2) ensure the integrity of the information; and (3) to the maximum extent practicable, use:
(g) Consistent with law, executive orders, directives, and regulations, each agency head or senior agency official, or with respect to the Intelligence Community, the Director of National Intelligence, shall establish controls to ensure that classified information is used, processed, stored, reproduced, transmitted, and destroyed under conditions that provide adequate protection and prevent access by unauthorized persons.
(h) Consistent with directives issued pursuant to this order, an agency shall safeguard foreign government information under standards that provide a degree of protection at least equivalent to that required by the government or international organization of governments that furnished the information.
As the FBI director stated, it is a “felony to mishandle classified information either intentionally or in a grossly negligent way, or a second statute making it a misdemeanor to knowingly remove classified information from appropriate systems or storage facilities.” According to the investigation, Clinton stored classified information on several private servers, and as a result, she and her colleagues at the State Department “were extremely careless in their handling of very sensitive, highly classified information.”
Only Negligence Is Required, Not Intent
“None of these e-mails should have been on any kind of unclassified system,” Comey said. In addition, the FBI found that “with respect to use of unclassified e-mail systems,” the State Department “was generally lacking in the kind of care for classified information found elsewhere in the government.”
This is in direct conflict with federal law on the management of classified information by agency heads. But, as Comey has repeatedly said, no criminal charges can be filed because he thinks Clinton did not intentionally mishandle classified information.
But how can an individual endowed with classification authority and trained in handling classified information repeatedly and consistently violate that training? The president’s order clearly says that anyone who “fails to classify information properly or protect classified information from unauthorized disclosure” will face sanctions. All that is required for a person to be subject to sanctions is to “knowingly, willfully, or negligently” violate the law.
All it takes is negligence, but even in the case of intentionality, can a department head who has been trained as an authority on classified material unintentionally violate laws for handling classified material? She wasn’t ignorant of the rules regarding classified material, yet she still took classified material and put it on her private servers.
Her actions—given her training—can only be seen as intentional. Did she intend to harm America? Comey insists she didn’t, and if she were ignorant of the rules governing the handling of classified material, one could agree with that conclusion. But since she knew mishandling classified material would be a national security risk and she chose to do it anyway, she intentionally put America at risk because her personal reasons for using a private server were more important than the safety and welfare of the American people.