Here is the legal background on the much discussed Sec. 793, 18 U.S. Code, entitled: CRIMES AND CRIMINAL PROCEDURE, PART I – CRIMES, CHAPTER 37 – ESPIONAGE AND CENSORSHIP, Sec. 793 on “Gathering, transmitting or losing defense information.”
Sec. (a) defines the subject matter in terms of “intent or reason to believe.” Indeed, as Dir. Comey stated, the Intent from Sub.(a) is followed through (d), where it is restated as (whoever) “willfully communicates.” For sections (a) through (d), one must indeed intend to communicate classified information along non-classified channels, in order to be held liable.
Legally, however, intent has both an objective interpretation and a subjective one. “Intent or reason to believe” in Sub.(a) means objective intent and reason to believe (such as when such information is communicated along the secure channels within the Department of State and what the level of security is: we speak of documents “being born classified” – classified into a particular “secure class/channel”). The “or” in the clause above is used conjunctively, not disjunctively, i.e. both “intent and reason…” not one to the exclusion of the other.
Sec. (b) refers to “copying” (i.e. resending/forwarding) “anything connected with the national defense.” Sec. (c) speaks of “obtaining from any source…” Sec. (d) concerns “delivery and transmission of classified material to unauthorized personnel.” As Representative Chaffetz poignantly emphasized, Sec. Clinton breached this Section on numerous occasions.
Arguably, however, all of the above would be “difficult to prosecute”(in Dir. Comey’s words), because the prosecution would have to prove intent beyond a reasonable doubt. Legal argument notwithstanding, Sec. (d) refers to any information “relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation. Surely, the Secretary of State should have a “reason to believe…” when receiving and sending information intended for her eyes only? What is more, does “willful communication” or “transmission” mean more than pressing the “send” button on the phone?
More importantly, Section (f) poses a different standard: “Whoever, being entrusted with or having lawful possession or control of any document…relating to the national defense, (1) through gross negligence [i.e. REPEATED ACTS OF NEGLIGENCE, RECKLESS DISREGARD, EXTREME CARELESSNESS] 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.” (straight brackets mine)
What we call MENS REA or STATE OF MIND requisite for the act is equivalent to doing the act “knowingly” where one “should have known” better. Sec.(f) “Gross negligence” = repeated acts of negligence and gross disregard for the law is tantamount to objective INTENT, meaning: “a reasonable Secretary of State in the same position would have known or should have known…”
What is CRIMINAL NEGLIGENCE? First, one should be aware of substantial and unjustifiable risk that a material element exists or will result (material element = removal from its proper place of custody or transmission of classified documents to persons without clearance or “stripping” classification – making the document a “non-paper”). Second, the risk must be of such nature and degree that failure to perceive it means a gross deviation from reasonable person’s standard of care (here: a reasonable Secretary of State).
RECKLESSNESS is a higher standard, applicable in 793 (a) through (e) but not (f). Recklessness is defined as “conscious disregard” of substantial and unjustifiable risk. Dir. Comey gave us sufficient indication that recklessness was present here by stating that Sec. Clinton behaved with “extreme carelessness,” which means “extreme negligence,” which means “gross negligence.” One might argue that recklessness means “willful disregard” (of a substantial and unjustifiable risk) while “extreme carelessness” means “knowing disregard” thereof; but such arguments should be made in court, by attorneys, not by investigators presenting facts and evidence.
Finally, what does “knowingly” mean? Knowledge, in legalese, means conscious awareness of the consequences, for example when one is taking away server from a secure location, exposing it to risk, removing email, uploading, corresponding from an unauthorized location etc.
Last but not least, if Sec. Clinton is to be held liable, so must be (under Sec.(g) of 18 U.S.C. 793), her staff: “If two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.”
For the purposes of this section, CONSPIRACY does not mean an express agreement. A tacit agreement, as witnessed by the co-conspirators parallel complementary actions, is sufficient, i.e. the co-conspirators (members of the staff) are doing the same with principal’s tacit knowing consent (referred to in legalese as an “interstate” or “spider web” conspiracy). Intent to agree means the intent to further illegal activity (e.g. forwarding classified e-mails to non-cleared recipients etc.).
When such a conspiracy has no legitimate purpose or interest, it becomes an “aggravating factor” (e.g. cover-up of Podesta’s participation in Sberbank’s lobbying in Washington, for which Clinton’s foundation received Panama funds, see my previous article on Panama Papers).
There are several other sections of 18 U.S.C., which apply here, such as: Title 18 -CHAPTER 93 – PUBLIC OFFICERS AND EMPLOYEES, Sec. 1924 on Unauthorized removal and retention of classified documents or material” or Sec. 952 on “Diplomatic codes and correspondence.” Suffice it to say that a person who defaults in the requirements of any of these laws must be stripped of clearance and MAY NOT ASSUME ANY PUBLIC OFFICE.
Consider the following Sec. 2071 on “Concealment, removal or mutilation generally” Sub. (b): “Whoever, having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States.
In the Congressional Hearing, Representative Chaffitz referred to a “sophisticated” and “permanent” wiping off of 30,000 e-mails from the server (breach of Sec. 2071), which should have been located on the Department of State’s premises and belonged to the Department of State by virtue of containing classified documents (breach of Sec. 1924).