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US Gov't Confirms Clinton Emails Contained Top-Secret Information (thenextweb.com)
An anonymous reader writes: Just days before candidates begin primary season with caucuses in Iowa and New Hampshire, the Obama administration confirmed for the first time that Hillary Clinton's emails did contain sensitive information. The Associated Press reports that seven of these email chains, are being withheld from the press because they contain information deemed to be "top secret" and that 37 pages included messages described by intelligence officials as "special access programs" — meaning, highly restricted and closely guarded government secrets.
I don't think he's being an apologist. He's saying that we need more details to discover who was colluding in the scheme. He's also saying that it's not the private server that was the problem, but that fact that e-mails themselves were likely systematically being treated in an insecure manner (probably by many people).
soylentnews.org
If shes indicted expect Elizabeth Warren to jump into the race and then bernies campaign dies a quick death.
Sorry Ken. IAAL, I've had to deal with classified information and with unclassified information that may possibly deserve classification. Reading the statutes (mainly 18 USC 793 et seq.) concerning crimes on handling classified information, merely handing a flash drive containing emails to a lawyer does not constitute a crime.
Let's break the first half of 18 U.S.C. 793(d) down into the elements a prosecutor would need to prove:
1. That a person having lawful possession, access, control over, or being entrusted with
2. Any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense
3. 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
4. Willfully
5. communicates, delivers, transmits, or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted
6. to any person not entitled to receive it.
For the sake of argument, let's assume that Secretary Clinton had lawful possession and the necessary clearances for whatever information was determined to be classified, and that it qualifies as a writing so satisfied the second element. Let us also assume that Secretary Clinton's lawyer does not have a security clearance (because that is an assumption, as we don't know what clearances her lawyer holds), so that the sixth element is satisfied. Let's also leave out my arguments against whether handing a flash drive to your lawyer constitutes delivery, transmission, or communication under the statute.
A prosecutor would have to prove, beyond a reasonable doubt, that Secretary Clinton knew, or had reason to know that the information in those emails was classified or should have been classified. That's a lot harder when the material is not already marked. But even then, we do not know why the information in the emails was classified, or if Secretary Clinton has reason to believe that the information would not be harmful to the US or helpful to a foreign nation, which is the actual requirement in the statute.
Additionally, there's a mens rea requirement of willfulness in the statute, meaning that Secretary Clinton would need to act "intentionally and purposely and with the intent to do something the law forbids" (see Bryan v. US, 524 U.S. 184 (1998)). To prove that, a prosecutor would need to prove that by handing unclassified material (with possibly classified information) to her attorney that she intended to break the law, and not because she wanted her attorney to give her advice, deliver the information to the proper officials, etc.
Let's contrast this with General Patraeus. He knowingly and willfully violated the law when he showed classified information to his mistress. He knew he wasn't supposed to do it. He did it anyway. He meets all the requirements of the statute. He had access to classified information, he had the material, he knew it could be harmful, he knew that his mistress was not entitled to the information, he showed it to her, and he knew that doing so was against the law and did it anyway.
I hope this shows why merely handing a flash drive containing information (that may be classified) to your lawyer does not constitute a crime under the applicable statute, and why when Secretary Clinton handed the flash drive to her lawyer, it wasn't a crime.