I watched last night’s debate with great interest. I thought both Sanders and Clinton had some very strong moments. However, I tend to watch these debates for the legal issues and I was most struck by former Secretary of State Hillary Clinton’s discussion of the email scandal. First, she declared that she will never be indicted — a statement that may irritate federal investigations looking into possible crimes. She certainly has defenses and the odds may indeed favor her. However, defense attorneys usually discourage such statements from potential targets which can enrage prosecutors as presumptuous or suggesting some level of immunity. Second, she insisted that her “predecessors did the same thing” that she did on emails — a statement that is demonstrably untrue but again was left unchallenged by the journalists.

THE INDICTMENT QUESTION
We previously discussed the controversy of the White House stating that the investigation was not moving toward any criminal charges — a statement would indicate either a sweeping assumption or an improper degree of consultation between the White House and the Justice Department on an ongoing investigation. As discussed below, having a personal server is not a crime. Mishandling classified material (or related classification violations) or evading federal laws can be. It would be premature to dismiss or predict an indictment. While the odds may be in her favor, it would be obviously absurd to say that no indictment is possible. It depends on the evidence, which remains largely unknown.

There is of course no way for Clinton to know about what will happen with the indictment. Given that she is running on the theme of “no one to big to jail,” the dismissing of the notion of an indictment is a tab in congruous. She certainly has support for saying that recent cases have resulted in relatively light punishment.

As I have previously noted, the best case for Clinton is the conviction of retired four-star general and CIA director David H. Petraeus for mishandling classified information. The deal given to Petraeus by the Justice Department was absurd and rightfully led to objections that powerful figures like Petraeus and Clinton are treated differently from average people. Nevertheless, the Clintons can claim that Petraeus was far more egregious in his lying to investigators and knowing disclosure of top secret code words, identities of covert officers, war strategy and intelligence capabilities to his lover and biographer.

Then there was the late Samuel “Sandy” Berger, a former White House national security adviser to Bill Clinton, who faced that same charge after he intentionally removed and destroyed copies of a classified document (putting some material in his socks to sneak them out).  Berger was trying to protect Clinton in the reviewing of potentially negative classified information. Not only that but Berger then lied to investigators — a separate crime regularly prosecuted by the Justice Department. Yet, no one called for his long incarceration. Instead, he was allowed to plead guilty to a single misdemeanor with no jail time.

Petraeus was fined $100,000 and sentenced to two years of probation.  In combination with Petraeus and Berger, a decision not to charge Clinton or her aides in mishandling classified information would raise serious questions for the Justice Department in later seeking indictments for others.  In fairness to Clinton, there remains the question of intent and whether she knew or should have known of any violations.

In terms of legal strategy, Clinton’s comments would make most criminal defense attorneys wince. There is clearly a huge investigation at the FBI, including the recent granting of immunity to a prior aide of Clinton. To dismiss any notion that those investigators or prosecutors could indict her, Clinton risks fueling any internal debates over political pressures on the investigation or the need to show that no one is above the law. It can be taken as taunting or, even worse, threatening that no one would dare bring such a charge. In fairness to Clinton, I do not believe that is how she meant it. I think she was making a legal point that there are no grounds for an indictment but there is a reason why attorneys prevent clients from making such dismissive statements.

PREDECESSOR COMMENT
The statement about her predecessors and that fact that no information was marked classified reveal the ongoing problem of media either being uninformed of classification law or unwilling to follow up on questions. At the March 9th debate, Clinton said “It wasn’t the best choice. I made a mistake. It was not prohibited. It was not in any way disallowed, and as I’ve said and now has come out, my predecessors did the same thing, and many other people in the government.”

That is clearly not true. Only a few of Clinton’s predecessors even had email. Of those four secretaries, none had a private server in their home. What Clinton did was incredibly reckless in the use of a private server that was more vulnerable to foreign interception. Moreover, of those four secretaries, none used email as their exclusive system.

If Clinton means that a couple of predecessors sent personal emails, that is clearly true but that is obviously not at issue.  If Clinton used the State Department system and just sent a few personal emails, this would not be an issue or the basis for such a massive investigation.  Clinton used her own server in her own home in what is widely viewed as an effort to control her own communications.

Moreover the repeated reference to former secretary Colin Powell is obviously misleading. Powell was found to have sent a few emails now deemed classified. Clinton sent over 100.  It is true that Powell said that the classification made no sense and that the emails were “minor.”  That certainly supports the objection to retroactive classification but that is were the analogy ends.  Moreover, there is certainly, as Clinton has argued, good-faith objections to over-classification by agencies.  However, one of the most serious allegations in the email scandal is that some of the Clinton emails involved information that the agencies claim were “born classified.”  Indeed, there are allegations that classified information “jumped the gap” from classified systems to the private email system.  Moreover, the investigators have reportedly concluded that a good number of these classified emails were clearly classified at the time that they were sent.

The biggest problem however remains the failure of media to challenge the Clinton statement that she did nothing wrong if the information was not marked classified. That is clearly wrong and does not reflect the legal standard. It would be absurd to suggest that officials are only subject to these laws for marked documents. Clinton has insisted that “I never sent classified material on my email, and I never received any that was marked classified.” The key of this spin is again the word “marked.” I have previously discussed why that explanation is less than compelling, particularly for anyone who has handled sensitive or classified material. As I discussed earlier, virtually anything coming out of the office of the Secretary of State would be considered classified as a matter of course. I have had a TS/SCI clearance since Reagan due to my national security work and have lived under the restrictions imposed on email and other systems. The defense is that this material was not technically classified at the time that it was sent. Thus it was not “classified” information. The problem is that it was not reviewed and classified because it was kept out of the State Department system. Moreover, most high-level communications are treated as classified and only individually marked as classified when there is a request for disclosure. You do not generate material as the Secretary of State and assume that it is unclassified. You are supposed to assume and treat it as presumptively classified.

Indeed that understanding was formally agreed to by Clinton when she signed the “Classified Information Nondisclosure Agreement,” or SF-312, which states that “classified information is marked or unmarked classified information, including oral communications.” Otherwise, there would be massive exposure of classified material and willful blindness as to the implications of the actions of persons disregarding precautions. For example, there is not a person standing next to the President with a classification stamp in the Oval Office. However, those communications are deemed as presumptively classified and are not disclosed absent review. Under the same logic, the President could use a personal email system because his text messages by definition are not marked as classified. Classified oral communications are not “marked” nor would classified information removed from secure systems and sent via a personal server. Likewise, classified oral communications that are followed up with emails would not be “marked.” This is the whole reason that Clinton and others were told to use the protected email system run by the State Department. We have spent hundreds of millions of dollars to secure such systems.

If that was not enough, one has to consider that the Secretary of State has original classification authority because she generates classified communications and material.

It is bizarre that the media does not address the glaring disconnect between what Clinton is saying and what the law actually demands. SF-312 reflects the obvious standard that classified information does not have to be marked. More importantly, as President, Clinton could never allow subordinates to operate under such a ridiculous construction of the rule. It would mean that classified statements that she makes in a SCIF or in the oval office would be free to be released or discussed in unsecure forums because no one stamped her oral statements classified as they were uttered. Yet she has been asked this question dozens of times and has given the same answer with virtually no reporter raising the actual language of the federal law or the practical implications of what she is suggesting about the scope of classification laws.

I have rarely seen a major legal issue in a presidential campaign that is being discussed with so little connection to the actual laws or legal standards. I understand that politics can be a fluid and rather superficial field. However, law is based on actual statutes and standards. The disconnection between the actual law and these questions is disconcerting.