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Hillary Clinton could still face charges, experts say

by Steven Nelson, June 14, 2018

Hillary Clinton's handling of classified information is getting another look with the release Thursday of a Justice Department inspector general report scrutinizing the FBI's investigation into whether she committed crimes using a private email server as secretary of state. Although it would be controversial, the Justice Department is able to reopen the Clinton email case, and experts say President Trump's 2016 adversary arguably could be charged until March 2025 -- after Trump would leave office even if he wins a second term. Sloppy workers, leakers, whistleblowers, and spies face a variety of criminal charges for mishandling classified records. But there are leading options available to prosecutors, with varying statutes of limitations. One law, 18 U.S. Code § 1924, forbids "unauthorized removal and retention of classified documents or material." It carries up to five years in prison, with a five-year statute of limitations. Former CIA contractor Reynaldo Regis pleaded guilty in May to violating the law by taking home about 60 notebooks with classified information. There's no allegation he shared them.

Former CIA Director David Petraeus also pleaded guilty under this law in 2015 after sharing highly classified information with his mistress and biographer. But prosecutors favor the more severe 18 U.S. Code § 793, which is part of the notoriously tough Espionage Act. The law restricts possession or retention of information "relating to the national defense" and carries a possible 10 years in prison, with a 10-year statute of limitations. The tougher law is sometimes used even if there's no allegation information was deliberately shared. For example, former Navy sailor Kristian Saucier was indicted and pleaded guilty in 2016 under the law for taking six cellphone photos inside a nuclear submarine in 2009. The phone was discovered at a Connecticut dump in 2012.

The information in Saucier's photos was deemed confidential, the lowest level of classification. Although some photos depicted the sub's nuclear reactor, he argued they were innocent keepsakes to remember his employment. By contrast, at the time the FBI closed its investigation, it found 110 emails in 52 email chains on Clinton's server containing classified information. Eight emails chains contained top secret information, and 36 others had secret information. Non-leak cases charged under the tougher law include Harold Martin III, the Maryland NSA contractor who agreed to plead guilty in January after improperly storing massive amounts of classified information at his home.

Because of the passage of time, it's possible Clinton cannot be charged under the gentler statute. She left office in February 2013, and the law's specific wording covers when someone "knowingly removes such documents or materials without authority and with the intent to retain" them -- written in such a way that the clock may begin when removal happens.

"I think that under this statute, the proscription is on the removal and it would run from removal," prominent defense attorney Barry Pollack told the Washington Examiner. But under the harsher law, the 10-year countdown arguably started in late March 2015, when tech aide Paul Combetta had what he told the FBI was an "oh ***** moment and deleted stored emails using the software BleachBit, after forgetting to do so months earlier. Under the tougher law, "I would think its statute [of limitations] would not start to run as long as the person has the documents," Pollack said. "It has a ten-year limitations period, not five." Pollack, who represents WikiLeaks editor Julian Assange and defended jailed journalistic source Jeffrey Sterling, said he believes that "it would be a stretch to claim that any of Hillary's emails contained national defense information, but that term has been interpreted broadly." Under a broad reading of the law, Clinton can face prosecution until 2025, he said.

Jesselyn Radack, a prominent whistleblower defense attorney, agreed with Pollack's reading of the laws. "The Espionage Act's statute of limitations should shortened, especially because it's a strict liability law that does not consider the intent of the person charged," said Radack, who has represented former NSA contractor Edward Snowden, former NSA senior executive Thomas Drake, and former CIA operative John Kiriakou.

In 2016, FBI Director James Comey closed the bureau's investigation of Clinton's email server by concluding she was "extremely careless" in handling classified information, but that no prosecutor would charge her because they could not prove criminal intent. Comey's decision to usurp traditional Justice Department processes to announce he would not seek charges is a likely subject of the new inspector general report. A memo written last year by Deputy Attorney General Rod Rosenstein blasted Comey's decision, and was cited by Trump in firing Comey.

People recently charged under the tough 18 U.S. Code § 793 include alleged journalistic sources Reality Winner, a former NSA contractor, and former FBI agent Terry Albury. Winner, arrested in June 2017, is jailed without bail pending trial for allegedly mailing The Intercept a document describing unsuccessful Russian attempts to hack election systems. Albury pleaded guilty in April and is believed to have sent The Intercept an FBI guide to informant recruitment and rules for seizing records from journalists.

Although he told Clinton during a 2016 debate that she would be in jail if he were elected president, Trump's Justice Department does not appear to have taken action against her, frustrating Trump, who routinely mentions her case on Twitter. "People like Hillary Clinton and General David Petraeus rarely get treated harshly, while low-level whistleblowers are prosecuted for espionage," Radack said, arguing that the Espionage Act ultimately should be repealed. "Obama started the trend but Trump has worsened it by putting alleged whistleblowers in jail."

David Kendall, an attorney for Clinton who represented her during the email probe, declined to comment. It's unclear who will suffer most from any fallout caused by the inspector general report. It's possible former investigators, led by Comey and his then-deputy Andrew McCabe, will suffer the worst backlash, rather than Clinton. Comey's personal handling of classified information, in memos he wrote after talks with President Trump and shared with a friend to be leaked, has received significant political attention recently. McCabe's alleged lies to FBI agents and Comey about his decision to authorize a leak was skewered in a separate Justice Department inspector general report this year, resulting in his firing.