More on Hillary Clinton's felonies. She held guilty knowledge to sustain 18 USC Sec. 793(e) charges

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Many people have asked, what crimes exactly would the FBI find the former Secretary of State violated? This and previous posts linked below provide a detailed picture of Hillary Clinton's violations of her signed Classified Information Nondisclosure Agreement, and the primary federal statute referenced within it, specifically, the three felony crimes specified at subsections (e), (f) and (g) of 18 U.S. Code § 793 - Gathering, transmitting or losing defense information. https://www.law.cornell.edu/uscode/text/18/793

While Hillary Clinton has characterized it as a "mistake", the evidence shows she set up and operated her email server as an end-run around information security requirements. She signed her security oath on January 22, 2009 and in the the following days received explicit warnings from NSA about the vulnerability to hacking of her hand held device. See, http://www.cbsnews.com/news/emails-show-nsa-rejected-hillary-clinton-request-for-secure-smartphone/

Not only did she continue to use the Blackberry in spite of this warning, she operated it for official Department messaging connected to an uncertified server, which made her communications even more vulnerable to interception. She operated this unauthorized system for the rest of her term in office knowing that she was defying NSA. That provides the element of guilty knowledge, or mens rea, that some courts have held is a requirement to conviction under Sec. 793(e) for unauthorized transmission or retention of classified information.

Subsection (e) makes the following acts a felony. Note that the courts have held there are two types of classified materials referenced, tangible documents and intangible information. The distinction is important, as will be explained below:

(e) Whoever having unauthorized possession of, access to, or control over 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 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 or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same 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;

Her actions show general mens rea, or guilty knowledge, that what she was doing could "be used to the injury of the United States." Note that is different from a more specific intent to injure the United States, which is not a requirement under this subsection. Nonetheless, mens rea is a requirement under one line of legal interpretation for conviction for sharing intangible (unstamped) classified information under 793(e). The same line of interpretation distinguishes marked documents from unmarked (intangible) information in the following fashion, according to a government Motion filed in a recent Sec. 793 case: US v Hitzelberger, Case 1:12-cr-00231-RC Document 51 Filed 04/05/13, .pdf

Section 793(e) differentiates between “tangible” information, i.e., the laundry list of items in the statute and “intangible” information, i.e., knowledge. For intangible information, the government must also prove mens rea: that “the possessor has reason to believe (the intangible information) could be used to the injury of the United States or to the advantage of any foreign power. 18 U.S.C. § 793(e). The House Committee, in its report on § 793(e) in connection with the 1950 revision of the Espionage Act, explained that this qualifying language addressed concerns that the category of illegally communicated intangible information was potentially overbroad. H.R.Rep. No. 647, 81st Cong., 1st Sess. (1949), at 4. The Committee left it to the courts to define this limiting phrase on a case-by-case basis, but stressed that the “qualification [was] not intended to qualify the other items enumerated in the subsections.” Id. (emphasis added). Accordingly, the government must address the limiting phrase only where the information at issue is intangible.

Meanwhile, this same reasoning is reflected in a filing in the Manning case. A Government brief observed on the topic of what it takes the phrase "reason to believe" to mean, as used in Sec. 793(e): http://s3.documentcloud.org/documents/715582/ae-509-government-targeted-brief-reason-to.txt.

under 18 U.S.C. § 793(e), the Government is not
required to prove that the accused had reason to believe the
information "could be used to the injury of the United States"
when the accused had unauthorized possession of any "document,
writing, code book, signal book, sketch, photograph, photographic
negative, blueprint, plan, map, model, instrument, appliance, or
note relating to the national defense." See 18 U.S.C. § 793(e). In
other words, the "reason to believe" scienter requirement only
applies to intangible information relating to the national defense,
not the tangible items listed above. See United States v. Kiriakou,
2012 WL 4903319, at *1 (E.D. Va. Oct. 1 6, 2012) ("Importantly, §
793 [e] differentiates between 'tangible' NDI, described in the
'documents' clause ( 'any document, ... or note relating to the
national defense'), and 'intangible' ND I, described in the
'information' clause ('information relating to the national
defense').&quot ; United States v. Rosen, 445 F. Supp. 2d 602, 612
( E.D. Va. 2006) ("Second, Congress expanded the category of
what could not be communicated pursuant to § § 793(d) and (e) to
include 'information relating to the national defense,' but modified
this additional item by adding a scienter requirement....&quot .

However, the courts have differed on the strict scienter requirement for a 793(e) conviction as found in the 2006 Rosen decision. According to the Congressional Research Service: Criminal Prohibitions on the Publication of Classified Defense Information, Jennifer K. Elsea, Legislative Attorney (September 9, 2013):

ftn. 115 - See United States v. Drake, 818 F. Supp. 2d 909, 916 (D. Md. 2011) (distinguishing intent requirements between disclosures involving tangible documents and those involving intangible information); United States v. Kiriakou, 2012 WL 4903319 at *3-5 (E.D. Va. October 16, 2012) (surveying case law and noting that 4th Cir. interlocutory appeal in
the Rosen case cast doubt on the district judge’s interpretation).

Furthermore, HRC should have reasonably known that she was violating Sec 793(e) by willfully allowing her email system to be a conduit for the swapping and storage of classified materials in violation of the terms of her Classified Information Nondisclose Agreement signed by her on January 22, 2009, which states at Paragraph 1:

"For the purposes of this Agreement, classified information is marked and unmarked information."

Given the sheer volume of classified materials found on her uncertified server, more than 2000 with 104 originating with her, and that 22 were classified Top Secret, she meets the standards for prosecution under USDOJ and JAG guidelines.

In addition, this pattern of willful evasion of the law in concert with others establishes scienter, or willful intent, for an additional conspiracy charge under 793(g), the next relevant subsection of 793:

(g) 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.

Please see previous installments in this series: (Clinton's violation of her signed Security Oath and her Sec. 793(f)(2) violation, failure to report classified information violations of others, (May 2, 2016) http://www.democraticunderground.com/?com=view_post&forum=1251&pid=1883154); and, the original Sec. 793 analysis, "Hillary Clinton's Felony. The federal laws violated by the private server", (August 28, 2015), http://www.democraticunderground.com/1251552653