(Part 2 of a 2-Part Article)
By Stephen Cochell, Esq.
In Part I, we discussed basic principles of justice and some of the facts that appear to be known. This section will put more “meat” on the subject for readers who want the gory legal details!
- Section 1236.22of the 2009 National Archives and Records Administration (NARA) requires that employees of agencies who send or receive federal records must be preserved in the agency’s record keeping system.
- Executive Order 13526, Classified National Security Information dated December 29, 2015 sets out the classification system for classifying documents based on their security levels.
- 18 U.S.C. Sec. 1519, Tampering with Evidence, provides:
Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.
While formally called Tampering with Evidence, many refer to Section 1519 as “Obstruction of Justice.”
- 18 U.S.C Sec. 793(f), Espionage Act, Gathering, Transmitting or Losing Defense Information provides:
(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, …plan, note or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—
Shall be fined under this title or imprisoned not more than ten years, or both.
Tampering with Evidence/Obstruction of Justice
You don’t have to be a lawyer to understand that this law is extremely broad. You can be charged with a felony carrying punishment of up to twenty years imprisonment if you destroyed, concealed or tried to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States… or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.
A defendant can be convicted of this felony if she knowingly directed the obstructive act to affect an issue or matter within the jurisdiction of any U.S. department or agency or that the defendant acted “in contemplation of the proper administration” of any matter within the jurisdiction of the agency. Importantly, the Government does not have to prove a “pending proceeding” or “matter” that was the subject of the obstruction. This simplifies the burden of proof for prosecutors and makes this crime relatively easy to prosecute because an individual can commit a crime by impeding ongoing or to impede future investigations or by destroying or concealing evidence before the proceeding, matter has been raised by federal authorities or a matter “within the jurisdiction of any department or agency of the United States. FOIA requests are administered by the State Department and within the administration of the Agency and overseen by Hilary by the Secretary of State.
Based on news reports and public statements, there are hotly disputed issues as to whether Hilary decided to conduct most, if not all business as Secretary of State through her private email server with the intent of circumventing and frustrating any attempts by the public to use FOIA to obtain information about the Benghazi or other scandals. Why would any Secretary of State avoid use of an official government server and email system? Hilary’s first defense is that she wanted a private server as a matter of “convenience.” Simply stated, there is no convenience exception to the regulations classifying national security information. Information being sent or received constitute classified information if they fall within the regulation even if the Secretary receives or re-sends the information without proper marking. If the United States cannot rely on the Secretary of State to understand that if there is any question whatsoever as to the sensitivity of information, the Secretary herself should mark the information as secret” before she sends and then admonish or discipline anyone who fails to comply with the law.
In other words, if Hilary failed to mark classified information as classified”, then she is guilty of mishandling classified information. Destroying evidence that Hilary knew or should have known was likely going to be the subject of a subpoena by the House Select Committee, that would be destruction of evidence, because it deprived the House and now the FBI of confirming any statements by Ms. Clinton that she produced all documents to the State Department. If a jury concluded that she used a personal server to avoid FOIA and to be able to control information about national security or other matters, she would likely be convicted of obstructing justice and tampering with evidence under the statute.
Can Hilary Clinton, as the Secretary of State, justify use of the private server when she knows, or should know that the use of private emails and servers was not authorized by any statute, rule or regulation. Even assuming that other Agency heads used private emails, did they regularly use them, and did they contain classified information? Hilary claims that Colin Powell used private emails, but the media reports that his use of private emails was the exception and not the rule. It does not appear that he sent or received classified information on his private emails, but further investigation may show otherwise.
The Espionage Act and Mishandling Classified Information
No one, at least at this point, is suggesting that Hilary intentionally set out to compromise national security similar to the kind of charges facing spies for a foreign government. However, it is not unknown in the annals of federal prosecution for a prosecutor to make the charge and then accept a plea to Mishandling Classified Information under Section 879(f) of the Espionage Act. The evidence and arguments overlap with a charge of tampering with evidence.
Did Hilary Clinton know that she sent or received classified information? As set out above, this defense appears to have emerged over time with Hilary first telling reporters that nothing that she sent or received was classified. When classified information was discovered on some of the documents released by the State Department, the defense was refined to: “I did not send or receive emails that were marked as classified.” This is not a complete defense but it supports Hilary’s defense that she intentionally sent or received classified information, which is undermined by the changing nature of her explanations for using a private server. A jury may conclude that her explanations are false and not worthy of belief.
The prosecutors would likely argue that, as Secretary of State, Hilary knew or should have known that information that related to the handling of the Benghazi affair and negotiations with foreign states regarding trade, security or immigration were, at the very least, sensitive and should have been treated as classified. When the agency head generates a document, or if someone sending the document fails to mark the document as classified and take steps to protect the document if unmarked, they are likely guilty of mishandling classified materials.
Other Similar “Mishandling” Cases Have Been Brought by the Obama Administration.
Hilary supporters argue that she is being singled out for criticism because she is a candidate for the Presidency, and that she has not adopted any practices that other agency heads followed have not followed. There is a defense called “selective prosecution” that is periodically raised when an individual is allegedly “singled out” for prosecution and courts scrutinize the evidence to assure that prosecutors uniformly enforce laws. When the defense raises this defense, the Government trots out other similar cases to show that the statute in question has been enforced in the past under the same or similar circumstances. However, comparisons to other cases are often flawed because the interests and the magnitude of the conduct in other cases are like “comparing horse shoes to hand grenades.” As to Hilary, the Government will likely point to some of the other recent “mishandling” cases during the Obama Administration as well as Secretary Clinton’s support for prosecution of individuals accused of mishandling classified information.
In May, 2015, David Petraeus, former Commanding General of Central Command (Iraq and Afghanistan) and former head of the Central Intelligence Agency (“CIA”), pled guilty to mishandling classified information based when he sent is set of personal “black books” containing classified materials to his autobiographer and lover. He pled guilty admitting that the materials were classified. Petraeus received two years probation in exchange for his guilty plea.
In 2014, the Government prosecuted an Arabic translator, James Hitselberger, who was fired and criminally charged for printing two classified documents and attempting to leave a Bahrain naval base. He pleaded guilty to mishandling documents. Hitselberger denied intentional misconduct but entered a guilty plea to unauthorized removal and retention of classified information. Hitselberger claimed that he was taking the documents home to read them because it was “convenient.”
In December 2011, Bradley (now Chelsea) Manning’s court-martial was set to begin. Unlike the documents found on Hillary Clinton’s server, none of the documents at issue in that prosecution were “top secret.” Nonetheless, then-Secretary Clinton convened a press conference to denounce Manning and defend the prosecution. Secretary Clinton reportedly said stated that if his case goes to trial and he is convicted, Manning could face life in prison. The government has said it would not seek the death penalty. Secretary of State Hillary Rodham Clinton called Manning’s alleged actions damaging and unfortunate in remarks to reporters at the State Department on Thursday.
“I think that in an age where so much information is flying through cyberspace, we all have to be aware of the fact that some information which is sensitive, which does affect the security of individuals and relationships, deserves to be protected and we will continue to take necessary steps to do so,….” 
Manning was convicted and sentenced to 35 years in prison. If you’re Hilary Clinton, you need to think about the Manning case.
In 2010, Former NSA executive Thomas A. Drake, a whistleblower, was charged with unlawfully retaining classified information at a time when he was in touch with a Baltimore Sun reporter who later chronicled mismanagement at the agency. The Justice Department dropped the most serious charges after determining that they could not release some of the highly classified documents necessary to successfully prosecute the case. Drake pleaded guilty to a single misdemeanor for “exceeding authorized use of a government computer.”
How Do Federal Prosecutors Investigate Crimes?
“Good work takes time.” That is certainly the case in public corruption and national security cases. Although the initial referral from the Inspectors General could have been referred to the National Security Division of Justice, that does not preclude the Division from initiating its own investigation through the FBI. Justice may await further information from the House Select Committee or independently conduct its own investigation and obtain testimony and records from the Committee to provide investigative leads. Neither Justice nor the FBI do things quickly, as illustrated by the “mishandling” case described above. In a case of this magnitude, Justice will not ask a grand jury for an indictment unless they believe they can convict beyond a reasonable doubt.
However, all matters falling under National Security are automatically within the responsibility of the Assistant Director (“AAG”) of the National Security Division. Prosecution of a case affecting, involving, or relating to the national security shall not be instituted without the express authorization of the National Security Division or higher authority. The National Security Division shall be consulted before an arrest is made, a search warrant is obtained, a grand jury investigation commenced, immunity is offered, indictment presented, criminal information filed, a civil injunctive action filed, a prosecution declined, a count dismissed, a sentencing commitment or other disposition made, or when an adverse ruling or decision is appealed in cases affecting, involving, or related to the national security as defined in this section.
The broad authority granted to the National Security Division is designed to assure that when national security issues arise during a criminal prosecution, they must be resolved through careful coordination by the Department of Justice (Department) with high level officials from the intelligence, military and foreign affairs communities. Justice will coordinate with the Select Committee. Prosecution of a national security case requires strict adherence to protecting classified information under the Classified Information Procedures Act (CIPA), Title 18, United States Code, App. III. In addition, classified information cannot be presented to the Grand Jury unless there is prior approval by the CIA or other intelligence agency providing the information. Presentation of evidence at trial to a jury necessarily requires careful consideration of information that can or cannot be disclosed to the public to avoid compromising national security. This is a central part of the Justice Department’s determination of whether a case “goes grand jury” or to trial in a national security case.
In any event, a criminal case against Hilary appears to be gathering steam as facts emerge that contradict Hilary’s explanations and as she seems to be splitting legal hairs in stating that the emails were not marked classified when received. Before a case can be referred to a grand jury, the FBI must complete an investigation and prepare a report through various levels of the FBI. Frequently, Justice gets involved at the beginning of the investigation to assure that the investigation is focused and conducted with an understanding that the investigation will likely be scrutinized and become a public document.
Justice Department lawyers identify the “target” of their investigation and then formulate a strategy with the FBI on how to gather evidence to support or to refute the charges. Other “subjects” of investigation may also become identified as potential targets whose culpability may be considered less significant and will be interviewed by the FBI. So…people like the State Department’s Technical Specialist likely knows facts that are potentially incrimination to Hilary. Like all citizens, he has the right to invoke the Fifth Amendment and refuse to talk to House or federal agents because his testimony may be incriminating against him. Under these circumstances, the House, the Justice Department or both can provide testimonial immunity against these individuals. Immunity for Hilary’s IT specialist, Bryan Pagliano, is likely a subject actively being discussed by the House Select Committee with Justice, or it should be because a misstep by the House can make successful prosecution more difficult than it has to be. However, most defense lawyers representing the staffers know that the first person in “to cut a deal with the feds” gets the best deal, including immunity and an agreement not to prosecute the cooperating witness.
Hilary has to consider that a lot of her staffers, who knew or should have known that she was mishandling classified information, may not want to become the subject of a federal criminal investigation for failing to report Ms. Clinton’s mishandling of information. A twenty or thirty something staffer may decide to “flip” and give information incriminating Ms. Clinton.
The Prosecutorial Decision
It is one thing to investigate someone, another to indict them, and quite another to get a conviction. At this point, pronouncing the existence of probable cause for a grand jury to indict may be premature. While this article sets out the positions based on current facts, we are merely scratching the surface of facts within Ms. Clinton’s knowledge or facts to be discovered by the FBI and Justice Department. Based on regulations and the U.S. Attorneys’ Manual, the decision is made by the Assistant Director for National Security or “higher authority.” This is where the skeptics doubt that the decision will be made by the Assistant Director for National Security, or the Attorney General. Clearly, the Attorney General will brief the President and will likely “consult” with him about the decision to indict. Whether the Attorney General would disobey the President is up to Attorney General. However, there is precedent for at least one Attorney General of the United States to resign rather than compromise their public duty as Attorney General.  The “Monday Morning Massacre” simply fueled the public outcry for Nixon’s impeachment.
Did any of the classified documents purportedly leaked pose any danger to national security? Was the computer actually hacked by a foreign government? What was Hilary’s true purpose in using her private server?
Looking at these facts as a former federal prosecutor, it looks, feels and smells bad. Ms. Clinton has not helped herself by her “Snapchat” statements and the multiple, ever-changing explanations and defenses offered by Ms. Clinton, which merely offend and probably galvanize FBI agents and federal prosecutors to “charge” ahead see what they can find against Ms. Clinton.
While Ms. Clinton probably did not intend to cause harm to the United States, what on earth was she thinking about when she set up the computer?
- Why would the Secretary of State avoid using the State Department’s secure email system and server?
- Was Hilary grossly negligent in setting up the server when she knew or should have known that many, if not the majority of her emails would include classified information that was subject to, and were supposed to be controlled by the Classified Regulations?
- Did Hilary set up the private server to evade prying eyes (e.g. FOIA requests) by the Media or private watchdog agencies by Judicial Watch and to impede any investigation by Congress on issues that she knew would arise while she was Secretary of State?
- Did Hilary talk to a State Department lawyer who understood and worked with classified information?
At this point, the facts appear to support a full investigation by the FBI. Based on a partial knowledge of public facts, unless new facts or stronger defenses are raised by Ms. Clinton, Hilary will likely be referred to Justice and prosecuted for tampering with evidence and mishandling classified information.
This leaves the final question: Will Loretta Lynch, the Attorney General of the United States, apply the laws of the United States and present this matter to a federal grand jury and prosecute the matter zealously and without regard to the high office previously held by Hilary Clinton or whether she may become the next President of the United States?
What do you think?
 The author is a civil litigator and white-collar criminal defense lawyer who is known for his defense of a SEC defendant in a civil case accused of defrauding investors of six billion dollars. Cochell served as an United States Attorney in Detroit on the Narcotics Task Force and was known for successfully prosecuting major drug trafficking and drug forfeiture cases that went to trial. Cochell has also represented companies, such as FedEx Corporation in a $750 million theft-of-trade secret case against a company being acquired by United Parcel Service. Steve Cochell currently practices law in Houston Texas. He can be contacted at cochelllawfirm.com
 Reported by Glenn Greenwald, August 12, 2015, “Hillary Clinton on the Sanctity of Protecting Classified Information.
 United States Attorney’s Manual, Section 9-90.020 – National Security Matters—Prior Approval, Consultation, and Notification Requirements, including 18 U.S.C. § 791, et. seq.
 United States Attorneys Manual, Section 9-90.230 – Disclosure Of Classified Information to the Grand Jury
 On October 20, 1973, President Nixon ordered Eliot Richardson, then-Attorney General of the United States to fire Archibald Cox, the Special Watergate Prosecutor. Richardson resigned rather than compromise his responsibility to the public.