Hillary Clinton — Charges May Yet Come Her Way
Brendan Bordelon’s report on Hillary Clinton’s potential criminal exposure relies on some legal analysis that is, at the very least, incomplete.
The report leaps from a false premise I have been warning against – and that Mrs. Clinton has been trying to sell – since the scandal broke in March. Brendan writes: “National-security lawyers say the decision to charge Clinton would depend largely on whether the offending documents were actually marked ‘classified.’” The case, however, is not about classified documents; it is about classified information. I explained the distinction a few months back:
Mrs. Clinton stressed [at her March press conference] that she never stored classified documents on her private e-mail system. To the uninitiated, this sounded like the strongest point in her defense. Mostly, however, it is a red herring, exploiting the public’s unfamiliarity with how classified information works — and fueling no small amount of irresponsible speculation over the last few days about how the nature of her responsibilities meant classified material must have been stored on her private system.
In the government, classified documents are maintained on separate, super-highly secured systems. Yes, if security gets lax or you have a determined Ed Snowden type with sufficient expertise, the protections can be defeated. But in general, Mrs. Clinton would not have been able to access classified documents even from a “.gov” account, much less from her private account — she’d need to use the classified system. In fact, many government officials with security clearances read “hard copies” of classified documents in facilities designed for that purpose rather than accessing them on computers. [Such a facility is often called a “SCIF” — sensitive compartmentalized information facility.] That said, there are two pertinent caveats. First, since we’re dealing with Clintonian parsing here, we must consider the distinction between classified documents and classified information — the latter being what is laid out in the former. It is not enough for a government official with a top-secret clearance to refrain from storing classified documents on private e-mail; the official is also forbidden to discuss the information contained in those documents.
