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Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsI am so mad at Terry McAuliffe right now I could spit
Last edited Mon May 23, 2016, 10:21 PM - Edit history (1)
He carpet bagged his way into Virginia. Virginia has a long line of great Democratic governors. We also had the high road on corruption after the McDonald scandal.
Mark Warner and Tim Kaine did a hell of a job making Virginia open to democrats and turning the state blue, and now Terry just throws it all away.
I'm fucking livid right now.
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SickOfTheOnePct
(7,290 posts)to see if anything actually comes from the investigation?
Skinner
(63,645 posts)Joe the Revelator
(14,915 posts)We have worked VERY hard in VA to fix the party here. Terry wasn't here when we were doing that, and now he potenially threw is all away.
GDP can talk about the Clinton connections, and I thought that GD could talk about the ramifications for the Virginia party.Which is why I took out all mentions of Clinton in this post.
Schtick aside, this REALLY matters to me, and is going to matter to a bunch of Virginia Democrats on a local level. It's shitty.
cali
(114,904 posts)https://www.washingtonpost.com/politics/company-with-ties-to-terry-mcauliffe-is-under-sec-investigation/2013/08/02/da483b36-f956-11e2-b018-5b8251f0c56e_story.html
http://www.salon.com/2014/10/03/terry_mcauliffe_is_still_terrible_hes_not_even_good_at_being_corrupt/
Joe the Revelator
(14,915 posts)have used one of your 'normal people' accounts. That was weak sauce.
joshcryer
(62,276 posts)
leveymg
(36,418 posts)If the FBI was investigating you or me we would both be fired and held in a cell while the charges are processed. Time the well connected play and pay by the same rules.
joshcryer
(62,276 posts)What's corrupt is that for some reason these leaks about investigations are going out. The FBI shouldn't even be talking about cases they're working on.
leveymg
(36,418 posts)Or years earlier, and would serving the next 35 years in federal prison by now. She's getting rather special treatment, don't you think?
joshcryer
(62,276 posts)This was a classic failure of the federal records acts which penalties are losing ones job. She quit before she got caught, but she didn't do anything jail worthy.
We still have trial by jury.
leveymg
(36,418 posts)joshcryer
(62,276 posts)...it is a total joke to think Clinton will get hit.
She violated the federal records act, it's incompetence, but not a felony.
leveymg
(36,418 posts)It's in his charging document. Look it up. Please do some research before you try to weigh in on this.
Rex
(65,616 posts)who could have been working for the KGB (we don't know since she was never vetted) and what did he get? A judicial slap on the wrist.
However become a whistleblower, get 30 years to life.
This country is so pathetic at times.
leveymg
(36,418 posts)He was convicted of retaining classified records and sharing them with someone who had no legitimate "need to know" after he was forced out at CIA. What Hillary did, sharing classified materials over an unsecure system with a circle of others, some of whom weren't cleared, and inducing Blumenthal to "keep 'em coming" (after he told her the materials were classified) is far worse.
Baitball Blogger
(46,736 posts)Maybe in the eighties and nineties?
MADem
(135,425 posts)yet "other" people -- who have the very same issues, and maybe worse -- get a pass!
But of course, partisanship has NOTHING to do with any of that!
And CARPETBAGGING? Really? Carpetbagging is now a crime?
Good grief, the only one in the POTUS race who hasn't moved is frickin' TRUMP! If "carpetbagging" were a bar to public office, we wouldn't have seen a Senator Robert Kennedy or a host of other public servants!
pnwmom
(108,980 posts)about him having moved up there from Brooklyn.
Or maybe it's different when you carry your stuff in a backpack?
Some of our best lawmakers have been carpetbaggers!
OBAMA was a carpetbagger, after all--he wasn't born in Chicago but he went to the WH as the Senator from IL (hell, Trump has him born in Kenya)!
leveymg
(36,418 posts)Hillary most certainly has. Seems Terry may have but on a vastly smaller scale.
pnwmom
(108,980 posts)leveymg
(36,418 posts)So, what's the point of going through all the trouble of rounding up a Grand Jury?
pnwmom
(108,980 posts)leveymg
(36,418 posts)I didn't commit the acts, she did. I've just been paying attention to the news and know how to find and interpreted the relevant statutes. Any educated person should be able to do the same and draw their own conclusions in this case. Same with you. But argue from the facts and the law, not what someone told you to think.
pnwmom
(108,980 posts)staffer of the Department of Homeland Security, have demonstrated that she broke no criminal laws.
You think a DUers timeline has proven your case against her. It hasn't.
leveymg
(36,418 posts)Show me one, and I'll tell you what I think.
pnwmom
(108,980 posts)prosecution under that section.
If you argue that there has been a comparable prosecution, then cite it.
Also, if they did choose to prosecute her, they'd have to prosecute dozens of other current and former staffers who have sent Defense-related but non-classified emails over non-classified servers that were no more secure than her system was.
http://www.nytimes.com/2016/05/11/us/clinton-emails-routine-practice.html
leveymg
(36,418 posts)Last edited Tue May 24, 2016, 09:18 AM - Edit history (1)
In the Deutch case, which is the most comparable, the AG ran out the clock without convening an indictment and Bill Clinton pardoned him on the last day of his term. This is precisely what I think will be the outcome with Hillary.
In the Petraeus prosecution, Sec 793 was part of the charging document, but he pled down to 1942, a related misdemeanor. That is how most of these cases are handled but she likely won't cop that plea because she knows she'll be pardoned if she agrees to a settlement that involves her agreeing to give up her delegates and never seeking elected office again in lieu of prosecution for violation of her Classified Information Nondisclosure Agreement.
As for the others, Sec 793 is intended to be applied to those who have security clearances but mishandled classified materials or failed to report others who they knew were mishandling classified materials.
P.S. - Here, I did your homework for you:
Petraeus, see, p. 2,6,7 https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/03/petraeus-factual-basis.pdf.
Deutch, see, p. 41, 56, 57, 60, 64, https://www.cia.gov/library/reports/general-reports-1/deutch.pdf.
pnwmom
(108,980 posts)Without having permission to do so, Petraeus kept in his Arlington, Va. home eight “black books” containing highly classified “Top Secret/Codeword” information from his tenure as the coalition commander in Afghanistan and knowingly shared those books with his biographer, Paula Broadwell. In an interview with FBI agents, he acknowledged having an affair with Broadwell, but falsely stated that he’d never shared classified information with her.
SNIP
“The law treats the intentional disclosure of one piece of classified information to someone not entitled to receive it far more seriously than the accidental communication of dozens of pieces of classified information to people who were not supposed to get it,” American University law professor Stephen Vladeck said, citing explicit and implicit requirements that a person charged with violating the laws relating to classified information know that the information they mishandled was classified.
SNIP
Deutch was found to have had more than 70 classified documents or fragments thereof on unclassified digital media cards and computers used at his homes in Maryland and Massachusetts. Fourteen had classification markings. At least seven of Deutch’s memos to President Bill Clinton were found, some containing “Top Secret/Codeword” classified information.
Deutch agreed to plead guilty to a single misdemeanor count of mishandling classified information, but on President Bill Clinton’s last day in office in 2001 he pardoned Deutch before the legal papers offering the plea were filed with the court.
“The Deutch case was quite a bit more egregious in terms of, by day, he would approve covert ops and this and that and at night go home and write a diary, a detailed recitation of his day, to include covert programs and the identity of covert operatives,” said Bill Leonard, former director of the federal Information Security and Oversight Office, a clearinghouse for classification standards and disputes in the U.S. Government. “He was actually creating these documents.”
_____________________________________
Media Matters provides more information on why the cases aren't comparable -- no matter what you are reading in hate sites and right-wing sources.
http://mediamatters.org/research/2015/09/02/media-debunk-false-comparison-of-hillary-clinto/205321
Associated Press: Unlike Deutch, There Is No Evidence That Clinton Improperly Stored Indisputably Classified Emails. The Associated Press' Ken Dilanian wrote on August 31 that contrary to Deutch's improper handling of highly classified material, "there is no evidence of emails stored in Hillary Clinton's private server bearing classified markings" or being self-evidently classified "whether marked or not":
But in both of those cases, no one disputed that the information was highly classified and in many cases top secret. Petraeus pleaded guilty to a misdemeanor; Deutch was pardoned by President Bill Clinton.
SNIP
leveymg
(36,418 posts)the history of classified information-related prosecutions. The second article you cite seems to restrict itself to a three year period (2006-2009). Here's a far more objective, comprehensive, and wider ranging review of the subject of prosecutions of unauthorized disclosure under the Espionage Act (Sec. 793) and related statutes.
As the latter part of this CRS analysis makes clear, the basis on which the government decides to prosecute is not determined by the actual damage done or degree of intent, or the frequency of prosecution under the Espionage Act -- various parts of that statute impose differing degrees of intentionality -- instead, as the Congressional Research Service report extracted below observes, it is the degree to which the classified information that is mishandled may potentially cause damage to the national security. All classified information is potentially damaging. Mishandling of Top Secret information, such as that contained in 22 Clinton server emails, by its very nature is held to likely cause extremely grave damage to the national defense: (p. 23)
The Congressional Research Service
"Criminal Prohibitions on the Publication of Classified Defense Information"
Jennifer K. Elsea
Legislative Attorney
September 9, 2013
https://www.fas.org/sgp/crs/secrecy/R41404.pdf (pdf)
pp. 6 - 10
The Obama Administration is taking a relatively hardline stance with respect to those suspected
of leaking classified information to the press, with seven prosecutions currently under way or
completed (including Bradley Manning).39 A former National Security Agency (NSA) official,
Thomas A. Drake, recently agreed to plead guilty to exceeding authorized use of a government
computer in violation of 18 U.S.C. Section 1030(a)(2)(B) (a misdemeanor), after the government
dropped more serious charges under the Espionage Act, among other offenses.40 Mr. Drake was
initially investigated beginning in 2007 in connection with the New York Times’ revelations
regarding the Bush Administration’s warrantless surveillance program, but was eventually
charged in connection with providing classified information that revealed alleged NSA
mismanagement to the Baltimore Sun.41 The prosecution eventually dropped these charges after
the judge ruled that the government’s proposed substitutions for documentary evidence it sought
to introduce would not provide an adequate opportunity for the defendant to present his case.42
After calling the government’s treatment of the defendant in the case “unconscionable” and
declining to impose a fine, the court sentenced Mr. Drake to one year probation and 240 hours of
community service.43
A guilty plea was also secured in a case against an FBI contract linguist accused of providing
secret documents to a blogger.44 The defendant, Shamai Kedem Leibowitz, was sentenced to 20
months in prison for violation of 18 U.S.C. Section 798 by passing five documents classified at
the “secret” level in relation to communications intelligence.45
The Obama Administration is seeking to compel New York Times reporter James Risen to testify
at the trial of former CIA officer Jeffrey Sterling, who is accused of providing classified
information to Mr. Risen that formed the basis of part of a book.46 The judge ruled, however, that
Mr. Risen need only testify about certain non-privileged information and need not identify the
source of the material in question.47 The government asked the court to reconsider the ruling,
arguing that the reporter’s testimony is “qualitatively different” from the circumstantial evidence
the judge thought would suffice to establish the same facts,48 but the court declined to reconsider.
The Court of Appeals for the Fourth Circuit reversed the ruling on appeal,49 holding there is
neither a First Amendment privilege nor a federal common-law privilege protecting journalists
from being compelled to testify.50 The government also prevailed in its appeal of an order striking
two of its primary witnesses for failure to produce information about them to the defense in a
timely manner.51
Another ongoing prosecution involved a former State Department contractor who was indicted in
2010 for disclosing national defense information to Fox News reporter James Rosen, related to
intelligence regarding North Korea’s nuclear weapons program.52 Mr. Rosen was apparently also
investigated and named as a co-conspirator in the indictment, but was not himself indicted for his
role.53 The contractor, Stephen Kim, was at the time of the disclosure a senior adviser for
intelligence detailed to the State Department’s arms control compliance bureau.54 The court
denied the defendant’s motions to dismiss the espionage charges based on the Constitution’s
Treason Clause as well as the First and Fifth Amendments.55
A former CIA officer, John Kiriakou, was charged for the unauthorized disclosure of classified
information to a journalist. Because the disclosures were alleged to have included the identities of
covert CIA employees, he was also charged under the rarely used Intelligence Identities
Protection Act.56 After the judge rejected his Espionage Act defense based on the lack of intent to
harm the United States or give advantage to a foreign nation,57 Mr. Kiriakou pleaded guilty to
violating the Intelligence Identities Protection Act.58
Most recently, Edward Snowden, a former contractor employee working as a computer system
administrator at an NSA facility in Hawaii, was charged in connection with leaking top secret
documents related to certain NSA programs to the Guardian (UK) and the Washington Post.59 He
permitted the newspapers to publish his name, but fled to Hong Kong before he could be taken
into custody. He is reportedly seeking asylum in Ecuador.60 The criminal complaint against him
charges two violations of the Espionage Act and theft of government property.61
The publication of the leaked documents by WikiLeaks and the subsequent reporting of
information contained therein, as well as other publications of “leaked” classified information,
raise questions with respect to the possibility of bringing criminal charges for the dissemination
of materials by media organizations following an unauthorized disclosure, in particular when
done by non-U.S. nationals overseas. This report discusses the statutory prohibitions that may be
implicated; the extraterritorial application of such statutes; and the First Amendment implications
related to such prosecutions against domestic or foreign media organizations and associated
individuals.
Statutory Protection of Classified Information
While there is no one statute that criminalizes the unauthorized disclosure of any classified
information, a patchwork of statutes exists to protect information depending upon its nature, the
identity of the discloser and of those to whom it was disclosed, and the means by which it was
obtained. It seems likely that most of the information disclosed by WikiLeaks that was obtained
from Department of Defense databases falls under the general rubric of information related to the
national defense. The diplomatic cables obtained from State Department channels may also
contain information relating to the national defense and thus be covered under the Espionage Act,
but otherwise their disclosure by persons who are not government employees does not appear to
be directly proscribed.62 It is possible that some of the government information disclosed in any
of the releases does not fall under the express protection of any statute, despite its classified
status.
The Espionage Act
National defense information in general is protected by the Espionage Act,63 18 U.S.C. Sections
793–798, while other types of relevant information are covered elsewhere. Some provisions apply
only to government employees or others who have authorized access to sensitive government
information,64 but many apply to all persons. 18 U.S.C. Section 793 prohibits the gathering,
transmitting, or receipt of defense information with the intent or reason to believe the information
will be used against the United States or to the benefit of a foreign nation. Violators are subject to
a fine or up to 10 years’ imprisonment, or both,65 as are those who conspire to violate the statute.66
Persons who possess defense information that they have reason to know could be used to harm
the national security, whether the access is authorized or unauthorized, and who disclose that
information to any person not entitled to receive it, or who fail to surrender the information to an
officer of the United States, are subject to the same penalty.67 Although it is not necessary that the
information be classified by a government agency, the courts seem to give deference to the
executive determination of what constitutes “defense information.”68 Information that is made
available by the government to the public is not covered under the prohibition, however, because
public availability of such information negates the bad-faith intent requirement.69 On the other
hand, classified documents remain within the ambit of the statute even if information contained
therein is made public by an unauthorized leak.70
( . . .)
pp. 23-25
Where First Amendment rights are implicated, it is the government’s burden to show that its
interest is sufficiently compelling to justify enforcement. Whether the government has a
compelling need to punish disclosures of classified information turns on whether the disclosure
has the potential of causing damage to the national defense or foreign relations of the United
States.143 Actual damage need not be proved, but potential damage must be more than merely
speculative and incidental.144 On the other hand, the Court has stated that “state action to punish
the publication of truthful information seldom can satisfy constitutional standards.”145 And it has
described the constitutional purpose behind the guarantee of press freedom as the protection of
“the free discussion of governmental affairs.”146
Although information properly classified in accordance with statute or executive order carries by
definition, if disclosed to a person not authorized to receive it, the potential of causing at least
identifiable harm to the national security of the United States,147 it does not necessarily follow
that government classification by itself will be dispositive of the issue in the context of a criminal
information was “related to the national defense” was a question for the jury to decide,156 based
on its determination that the information “may relate or pertain to the usefulness, efficiency or
availability of any of the above places, instrumentalities or things for the defense of the United
States of America. The connection must not be a strained one nor an arbitrary one. The
relationship must be reasonable and direct.”157 As long as the jury was properly instructed that
only information likely to cause damage meets the definition of information “related to the
national defense” for the purpose of the statute, the term was not unconstitutionally vague.
United States v. Morison158 is significant in that it represents the first case in which a person was
convicted for selling classified documents to the media.159 Samuel Loring Morison, charged with
providing classified satellite photographs to the British defense periodical Jane’s Defence Weekly,
argued that the espionage statutes did not apply to his conduct because he could not have had the
requisite intent to commit espionage. The U.S. Court of Appeals for the Fourth Circuit rejected
his appeal, finding the intent to sell photographs that he clearly knew to be classified sufficient to
satisfy the scienter requirement under 18 U.S.C. Section 793(d) (disclosure by lawful possessor of
defense information to one not entitled to receive it). The definition of “relating to the national
defense” was held not to be overbroad because the jury had been instructed that the government
had the burden of showing that the information was so related.160 His assertedly laudable motive
in permitting publication of the photographs was not found to negate the element of intent.161
The fact that the Morison prosecution involved a leak to the media with no obvious intent to
transmit sensitive information to hostile intelligence services did not persuade the jury or the
judges involved that he lacked culpability. The Justice Department did, however, come under
some criticism on the basis that such prosecutions are so rare as to amount to a selective
prosecution in his case, and that it raised concerns about the chilling effect such prosecutions
could have on would-be whistle-blowers who could provide information embarrassing to the
government but vital to public discourse.162 On leaving office, President Clinton pardoned
Morison.163
______________________________________
39 See Scott Shane, Ex-N.S.A. Official Takes Plea Deal, NY TIMES, June 10, 2011, at A1, available at
http://www.nytimes.com/2011/06/10/us/10leak.html?_r=1.
40 See Ellen Nakashima, Ex-NSA official Thomas Drake to plead guilty to misdemeanor, WASH. POST, June 9, 2011, at
http://www.washingtonpost.com/national/national-security/ex-nsa-manager-has-reportedly-twice-rejected-pleabargains-
in-espionage-act-case/2011/06/09/AG89ZHNH_story.html.
41 See Jane Mayer, The Secret Sharer, New Yorker, May 23, 2011, http://www.newyorker.com/reporting/2011/05/23/
110523fa_fact_mayer.
42 United States v. Drake, Crim. No. 10 CR 00181 RDB (N.D. Md.) (Government Motion to Dismiss the Indictment at
the Time of Sentencing) (filed June 10, 2011), available at http://www.fas.org/sgp/jud/drake/061011-dismiss.pdf.
43 See Steven Aftergood, Handling of Drake Leak Case was “Unconscionable,” Court Said, SECRECY NEWS (July 29,
2011), http://www.fas.org/blog/secrecy/2011/07/drake_transcript.html.
44 See Press Release, Department of Justice, Former FBI Contract Linguist Pleads Guilty to Leaking Classified
Information to Blogger (December 17, 2009), available at http://www.justice.gov/opa/pr/2009/December/09-nsd-
1361.html.
45 Id.
46 Jeffrey Sterling was indicted for several counts of violating the Espionage Act (disclosure and retention of national
defense information) as well as mail fraud, conversion of government property, and obstruction of justice. The
indictment is available at http://www.fas.org/sgp/jud/sterling/indict.pdf.
47 Steven Aftergood, Reporter Risen Will Not Have to Identify Source in Leak Trial, SECRECY NEWS (August 1, 2011),
http://www.fas.org/blog/secrecy/2011/08/risen_off_hook.html. For an overview of the law regarding the reporter’s
privilege, see CRS Report RL34193, Journalists’ Privilege: Overview of the Law and Legislation in the 113th
Congress, by Kathleen Ann Ruane.
48 See Government’s Motion for Clarification and Reconsideration, United States v. Sterling, No. 1:10cr485 (E.D. Va.
August 24, 2011), available at http://www.fas.org/sgp/jud/sterling/082411-recon.pdf.
49 United States v. Sterling, __ F.3d __, 2013 WL 3770692 (4th Cir. July 19, 2013).
50 See CRS Report WSLG630, Confusing Branzburg: Is There a Journalists’ Privilege Under the First Amendment?,
by Kathleen Ann Ruane.
51 Sterling at *22-*25.
52 See Spencer S. Hsu, State Dept. contractor charged in leak to news organization, WASH. POST, August 28, 2010.
53 Ann E. Marimow, A rare peek into a Justice Department leak probe, WASH. POST, May 19. 2013.
54 See Hsu, supra, footnote 52.
55 United States v. Kim, 808 F. Supp. 2d 44 (D.D.C. 2011).
56 50 U.S.C. §§421-426. For more information about this statute, see CRS Report RS21636, Intelligence Identities
Protection Act, by Jennifer K. Elsea.
57 United States v. Kiriakou, 2012 WL 4903319 (E.D. Va. October 16, 2012) (holding that the scienter requirement for
violating the Espionage Act by disclosing intangible information requires the government to establish only that the
possessor of the information had reason to believe that the information could be used to the injury of the United States
or the advantage of any foreign nation).
58 Press Release, U.S. Attorney for the Eastern District of Virginia, “Former CIA Officer John Kirakou Pleads Guilty to
Disclosing Classified Information About CIA Officer,” October 23, 2012, available at http://www.fbi.gov/
washingtondc/press-releases/2012/former-cia-officer-john-kirakou-pleads-guilty-to-disclosing-classified-informationabout-
cia-officer.
59 Mark Mazzetti and Michael S. Schmidt, Ex-Worker at C.I.A. Says He disclosed U.S. Surveillance, NY TIMES, June
10, 2013, at A1.
60 Ellen Barry and Peter Baker, Snowden, in Russia, Seeks Asylum in Ecuador, NY TIMES, June 23, 2013, at A1.
61 Peter Finn and Sari Horwitz, U.S. files charges against Snowden, WASH. POST, June 22, 2013, at A1 (reporting that
DOJ officials have filed a criminal complaint).
62 See 18 U.S.C. §952 (prohibiting the disclosure or publication of certain diplomatic material obtained “by virtue of …
employment by the United States”).
63 Act of October 6, 1917, ch. 106, §10(i), 40 Stat. 422.
64 E.g., 18 U.S.C. §§952 (prohibiting disclosure of diplomatic codes and correspondence), 1924 (unauthorized removal
and retention of classified documents or material); 50 U.S.C. §783 (unauthorized disclosure of classified information to
an agent of a foreign government, unauthorized receipt by foreign government official).
65 18 U.S.C. §793(a)-(c) provides:
(a) Whoever, for the purpose of obtaining information respecting the national defense with intent or
reason to believe that the information is to be used to the injury of the United States, or to the
advantage of any foreign nation, goes upon, enters, flies over, or otherwise obtains information
concerning any vessel, aircraft, work of defense, [etc.], or any prohibited place so designated by the
President by proclamation in time of war or in case of national emergency in which anything for
the use of the Army, Navy, or Air Force is being prepared or constructed or stored, information as
to which prohibited place the President has determined would be prejudicial to the national defense;
or
(b) Whoever, for the purpose aforesaid, and with like intent or reason to believe, copies, takes,
makes, or obtains, or attempts to copy, take, make, or obtain any sketch, photograph, photographic
negative, blueprint, plan, map, model, instrument, appliance, document, writing, or note of
anything connected with the national defense; or
(c) Whoever, for the purpose aforesaid, receives or obtains or agrees or attempts to receive or
obtain from any person, or from any source whatever, any [protected thing] connected with the
national defense, knowing or having reason to believe ... that it has been or will be obtained, taken,
made, or disposed of by any person contrary to the provisions of this chapter [18 U.S.C. §§792 et
seq.]....
66 18 U.S.C. §793(g) provides:
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.
67 18 U.S.C. §793(e) provides:
Whoever having unauthorized possession of, access to, or control over any document [or other
protected thing related to the national defense], or 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, willfully communicates, delivers, transmits ... to
any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer
or employee of the United States entitled to receive it; … Shall be fined under this title or
imprisoned not more than ten years, or both.
Section 793(d) is identical to §794(e), except that it applies to persons with authorized access to the
information at issue, in which case the failure to deliver offense applies to failure to turn the information over
to a government official only if there was a demand for its return.
Section 793(f) likewise applies only to those with authorized access to the covered materials, punishing those
who
(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.
68 The government must demonstrate that disclosure of a document is at least “potentially damaging” to the United
States or advantageous to a foreign government. See United States v. Morison, 844 F.2d 1057, 1072 (4th Cir.), cert.
denied, 488 U.S. (1988)(upholding conviction under 18 U.S.C. §793 for delivery of classified photographs to
publisher). Whether the information is “related to the national defense” under this meaning is a question of fact for the
jury to decide. Id. at 1073.At least one judge has held that in the case of a disclosure of intangible information, the
government needs to prove only that the defendant has reason to believe that such information is potentially damaging,
which, in the case of a person with access to classified information, can largely be inferred from the fact that
information is classified. See United States v. Kiriakou, 2012 WL 4903319 at *1 (E.D. Va. October 16, 2012) (scienter
requirement heightened in the case of disclosure of intangible national defense information); id. at *3 (noting that
defendant was a “government employee trained in the classification system who could appreciate the significance of
the information he allegedly disclosed”).
69 See Gorin v. United States, 312, U.S. 9, 27-28 (1941) (“Where there is no occasion for secrecy, as with reports
relating to national defense, published by authority of Congress or the military departments, there can, of course, in all
likelihood be no reasonable intent to give an advantage to a foreign government.”). While Gorin dealt with a violation
that required reason to believe materials obtained or transmitted were to be used to harm the United States or benefit a
foreign nation, it seems likely that the public nature of information would also negate a reason to believe that its
disclosure could harm U.S. national security for the purposes of 18 U.S.C. §793(d-e).
70 United States v. Squillacote, 221 F.3d 542, 578 (4th Cir. 2000).
71 Morison, 844 F.2d at 1064-65 (explaining that critical element distinguishing §794 from §793 is the requirement that
disclosure be made to an agent of a foreign government rather than anyone not entitled to receive it).
( . . .)
143 “National Security” is defined as national defense and foreign relations. See Exec. Order No. 13526, 75 Fed. Reg.
707 §6.1(cc) (January 5, 2010).
144 See, e.g., New York Times Co. v. United States, 403 U.S. 713, 725 (1971) (Brennan, J., concurring) (rejecting as
insufficient government’s assertions that publication of Pentagon Papers “could,” “might,” or “may” prejudice the
national interest); Elrod v. Burns, 427 U.S. 347, 362 (1976) (“The interest advanced must be paramount, one of vital
importance, and the burden is on the government to show the existence of such an interest.”) (citing Buckley v. Valeo,
424 U.S. 1, 94(1976); Williams v. Rhodes, 393 U.S. 23, 31-33(1968); NAACP v. Button, 371 U.S. 38, 45 (1963); Bates
v. Little Rock, 361 U.S. 516, 524 (1960); NAACP v. Alabama, 357 U.S. 449, 464-466 (1958); Thomas v. Collins, 323
U.S. 516, 530 (1945)).
145 Bartnicki v. Vopper, 532 U.S. 514, 527 (2001) (citing Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979)).
146 Mills v. Alabama, 384 U.S. 214, 218 (1966). Because of the First Amendment purpose to protect the public’s ability
to discuss governmental affairs along with court decisions denying that it provides any special rights to journalists, e.g.,
Branzburg v. Hayes, 408 U.S. 665 (1972), it is not likely a plausible argument to posit that it does not apply to the
foreign press. See United States v. 18 Packages of Magazines 238 F. Supp. 846, 847-848 (D.C. Cal. 1964) (“Even if it
be conceded, arguendo, that the ‘foreign press’ is not a direct beneficiary of the Amendment, the concession gains
nought for the Government in this case. The First Amendment does protect the public of this country. … The First
Amendment surely was designed to protect the rights of readers and distributors of publications no less than those of
writers or printers. Indeed, the essence of the First Amendment right to freedom of the press is not so much the right to
print as it is the right to read. The rights of readers are not to be curtailed because of the geographical origin of printed
materials.”). The Supreme Court invalidated, on First Amendment grounds, a statute that required postal authorities to
detain unsealed mail from abroad deemed to contain “communist political propaganda” unless the recipient affirms a
desire to receive it. Lamont v. Postmaster General, 381 U.S. 301 (1965).
Likewise, the fact that WikiLeaks is not a typical newsgathering and publishing organization would likely make little
difference under First Amendment analysis. The Supreme Court has not established clear boundaries between the
protection of speech and that of the press, nor has it sought to develop criteria for identifying what constitutes “the
press” that might qualify its members for privileges not available to anyone else. See generally CONGRESSIONAL
RESEARCH SERVICE, THE CONSTITUTION OF THE UNITED STATES: ANALYSIS AND INTERPRETATION, SEN. DOC. NO. 108-
17, at 1083-86 (2002), available at http://crs.gov/conan/default.aspx?mode=topic&doc=Amendment01.xml&t=2|3.
147 Exec. Order No. 13526, 75 Fed. Reg. 707 §1.2 (January 5, 2010) (“Classified National Security Information”).
Section 1.3 defines three levels of classification:
(1) “Top Secret” shall be applied to information, the unauthorized disclosure of which reasonably
could be expected to cause exceptionally grave damage to the national security that the original
classification authority is able to identify or describe.
(2) “Secret” shall be applied to information, the unauthorized disclosure of which reasonably could
be expected to cause serious damage to the national security that the original classification
authority is able to identify or describe.
(3) “Confidential” shall be applied to information, the unauthorized disclosure of which reasonably
could be expected to cause damage to the national security that the original classification authority
is able to identify or describe.
148 United States v. Heine, 151 F.2d 813 (2d Cir.1945) (information must be “closely held” to be considered “related to
the national defense” within the meaning of the espionage statutes).
149 See, e.g., United States v. Abu-Jihaad 600 F.Supp.2d 362, 385-86 (D. Conn. 2009) (although completely inaccurate
information might not be covered, information related to the scheduled movements of naval vessels was sufficient to
bring materials within the ambit of national defense information).
150 See, e.g., Haig v. Agee, 453 U.S. 280, 291 (1981) (“Matters intimately related to foreign policy and national security
are rarely proper subjects for judicial intervention.”).
151 See, e.g., United States v. Morison, 844 F.2d 1057, 1086 (4th Cir. 1988) (Phillips, J., concurring) (“… I assume we
reaffirm today, that notwithstanding information may have been classified, the government must still be required to
prove that it was in fact ‘potentially damaging ... or useful,’ i.e., that the fact of classification is merely probative, not
conclusive, on that issue, though it must be conclusive on the question of authority to possess or receive the
information. This must be so to avoid converting the Espionage Act into the simple Government Secrets Act which
Congress has refused to enact.”) (emphasis in original).
152 See, e.g., Scarbeck v. United States, 317 F.2d 546 (D.C. Cir. 1962) (holding government did not have to show
documents were properly classified “as affecting the national defense” to convict employee under 50 U.S.C. §783,
which prohibits government employees from transmitting classified documents to foreign agents or entities).
153 See United States v. Dedeyan, 594 F.2d 36, 39 (4th Cir. 1978).
154 312 U.S. 19 (1941).
155 Id. at 28.
156 Id. at 32. The information defendant was charged with passing to the Soviet government had to do with U.S.
intelligence on the activities of Japanese citizens in the United States.
157 Id. at 31.
158 844 F.2d 1057 (4th Cir.), cert. denied, 488 U.S. 908 (1988).
159 Efforts to prosecute Daniel Ellsberg and Anthony Russo in connection with the disclosure of the Pentagon Papers
were unsuccessful after the judge dismissed them for prosecutorial misconduct. More recently, a Defense Department
employee pleaded guilty to charges under the Espionage Act for disclosing classified material to lobbyists and to
journalists. United States v. Franklin, Cr. No. 05-225 (E.D. Va., 2005). For a description of these and other relevant
cases, see Lee, supra footnote 110.
160 But see Scarbeck v. United States, 317 F.2d 546 (D.C. Cir. 1962) (holding that government did not need to prove
proper classification of documents to prove a violation).
161 844 F.2d at 1073-74. Morison had stated that he sought the publication of the photos because they would
demonstrate to the public the gravity of the threat posed by the Soviet Union, which he hoped would result in an
increased defense budget. See P. Weiss, The Quiet Coup: U.S. v. Morison - A Victory for Secret Government,
HARPER’S, September 1989.
162 See Jack Nelson, U.S. Government Secrecy and the Current Crackdown on Leaks 8, The Joan Shorenstein Center on
the Press, Politics and Public Policy, Working Paper Series 2003-1 (2002), available at http://www.hks.harvard.edu/
presspol/publications/papers/working_papers/2003_01_nelson.pdf.
163 Valerie Strauss, Navy Analyst Morison Receives a Pardon, WASH. POST, January 21, 2001, at A17. Senator Daniel
Patrick Moynihan wrote a letter in support of Morison’s pardon and explaining his view that “An evenhanded
prosecution of leakers could imperil an entire administration,” and that “f ever there were to be widespread action
taken, it would significantly hamper the ability of the press to function.” Letter, Sen. Daniel Patrick Moynihan to
(continued...)
pnwmom
(108,980 posts)leveymg
(36,418 posts)By digging out the campaign's rather flimsy materials on the subject, you've succeeded only in making a convincing demonstration that HRC's defense is practically without any legal basis. Thank you, this has been very helpful.
pnwmom
(108,980 posts)leveymg
(36,418 posts)You're the one who posted a link to an article that makes that claim. Care to explain why Sec. 793 (e) and (f) don't fit the widely-accepted facts in Hillary's case:
* she set up an uncertified private server and hooked it up to her Blackberry in spite of warnings given by the NSA that the device was unsecure, showing she had an awareness that the system she operated was insecure and might compromise classified materials (satisfying mens rea, or "guilty knowledge requirement of the law under 793(e) and (f));
* wrote 104 emails containing classified information herself (a felony violation of Sec 793(e));
* encouraged others to keep sending classified materials to her ("keep 'em coming) after learning that they contained classified information (Blumenthal told her so on numerous occasions), (inducement to others to violate the law is a separate felony under Sec 793(g);
*her failure to report these apparent security violations to State Dept, NSA or CIA was a violation of 793(f)(2);
* and, her failure to turn over these classified materials at the end of her term in office, and decision to destroy approximately 30,000 emails that had been transmited over the same server. (another 793(e) violation).
I agree, hers is an extraordinary case, both in terms of the number of classified documents - about 2200 total, 104 sent by her, and 22 found to be Top Secret, that we know of -- as well as the high degree of potential exposure through her continued operation of the private server, despite warnings received. If she were anyone else, she'd have been indicted and convicted a long time ago, and would be serving 35 years now.
pengu
(462 posts)These are the causes they feel to compelled to stand up for.
elleng
(130,974 posts)didn't expect him to do as much progressively as he has, and not surprised about clinton-connections; been there for a long time.
underpants
(182,830 posts)They help a convention to avoid a primary. Bill Bolling would have won easily.
He's doing a really good job in my opinion.
Joe the Revelator
(14,915 posts)and possibly puts into office. We made them out to be corrupt whack jobs, then we prove ourselves to be just as corrupt. The VAGOP is DYING to get Cuccinelli in office.
underpants
(182,830 posts)It was mostly a showy end run but they do love him so.
Raine1967
(11,589 posts)I am not happy about this swarm.
He's doing a great job.
madinmaryland
(64,933 posts)
Joe the Revelator
(14,915 posts)
radical noodle
(8,003 posts)who actually has a green card and can legally give money. Let's not jump to conclusions. McAuliffe has been pretty progressive as governor. I always suspect a GOP hit job first. I hope I'm not wrong.
Rex
(65,616 posts)or more to the point - the workers that lost their pensions while the CEOs made out like bandits. The telecom I was working for went out of business around the same time and had to restructure.
brooklynite
(94,599 posts)"McAuliffe wasn't notified by investigators that he is a target of the probe, according to the officials."
Joe the Revelator
(14,915 posts)McAuliffe is the second consecutive Virginia governor to be investigated by Justice Department and the FBI. In 2014, Bob McDonnell was convicted of corruption charges related to $175,000 in loans and gifts he received from a donor and friend. The Supreme Court is weighing an appeal of the conviction.
It couldn't be learned what else the FBI and Justice Department are investigating as part of the probe in McAuliffe.
The officials say the investigation remains active and ongoing.
MADem
(135,425 posts)southern down home Fitzmas~!!!
Also, the Chinese gent with the money had a green card, as a US resident, he's in the clear ... so it's "Darn the bad luck" for those who wanted to see him frog marched!
Raine1967
(11,589 posts)I voted for him, -- he has exceeded BY FAR my expectations.
I am not liking what I am seeing here on DU.
LiberalArkie
(15,719 posts)
ileus
(15,396 posts)We've got enough votes to where we'll never lose another Senator, Governor, or Presidential race in Virginia again.
If we stay dedicated to the party and shrug off anything like this we shall always overcome. The Red parts of Virginia can stuff it for all we care.
Joe the Revelator
(14,915 posts)If it hadn't been for McDonald's corruption we may have had a Gov. Cuccinelli.....which is beyond thought. Now Johnny Voter is going to be able to say 'well both parties are corrupt'. Its a shit show.
ileus
(15,396 posts)We'll be able to run an axe murderer and win, Virginians aren't stoopid, we know to overlook character flaws and do the right thing.
We can separate the candidate from the party, and vote party.
SickOfTheOnePct
(7,290 posts)
Odin2005
(53,521 posts)AtomicKitten
(46,585 posts)anigbrowl
(13,889 posts)We get it, you're fucking livid already.
Joe the Revelator
(14,915 posts)
metroins
(2,550 posts)Permanent resident gives money to campaign.
I don't see any stealing, bribing, sexual or hurtful activities, so I don't care about this right now.
He's a ok in my book.
Tal Vez
(660 posts)BTW, I love your screen name.
"Who's that writin''"
Joe the Revelator
(14,915 posts)
Xyzse
(8,217 posts)Anything that can derail that can easily send things backwards unfortunately.
I mean, look at Maryland, I am still heartbroken having a Republican governor.
Makes me want to kick myself.
Raine1967
(11,589 posts)I have been quite pleased with him as governor.
I am willing to let this play out before we hang him out to dry.
BESIDES, he's not running for office again!
leveymg
(36,418 posts)Raine1967
(11,589 posts)he can't run.
He may run four years after his term is over, but even that remains to be seen.
leveymg
(36,418 posts)Or, do you know otherwise?
Raine1967
(11,589 posts)This entire story from CNN just smells of terrible reporting.
http://crooksandliars.com/2016/05/va-governor-mcauliffe-reportedly-under-fbi
then ther is this from Charlie pierce, who is not exactly a fan of McAullife:
http://www.esquire.com/news-politics/politics/news/a45178/terry-mcauliffe-scandal-clintons/
It's bullshit reporting from CNN to stir shit up. People are eating it up like candy.
It smells like complete GOP operatives. The op is taking CNN at its very badly reported word.
lagomorph777
(30,613 posts)But I will wait for more facts to emerge. Maybe our RW legislature has cooked up some bullshit.