The FBI recommendation not to prosecute Hillary Clinton and her staff on charges of mishandling classified information will give those accused of flouting national security rules a new line of defense even as it highlights a dual standard in how senior government officials are treated, several experts said Wednesday.
FBI Director James Comey recommended Tuesday that no charges be filed against Clinton or her team for their handling of classified information while she was secretary of state, even though she was “extremely careless” in using a private email address and servers. Attorney General Loretta Lynch announced Wednesday that she agreed with Comey’s assessment.
Lawyers who specialize in representing government and military officials who’ve had security clearances revoked said Comey’s recommendation offered them a new tactic in seeking to rehabilitate their clients, especially if Clinton is elected president in November.
“I intend to use the Hillary defense,” said Sean M. Bigley, a lawyer whose firm handles dozens of cases a year involving national security clearances. “I really question how any agency can say someone is a security risk if the president of the United States did something similar.”
He added, “We’ve had people lose 20-year careers for doing less than what she did.”
Mark F. Riley, a former military intelligence officer who became a lawyer defending those accused of national security violations, said he, too, would invoke the Clinton recommendation.
We have the Petraeus ceiling and the Clinton floor. We have a new standard as to what comprises intent with respect to criminal cases.
lawyer Mark Zaid
“I’m going to use it every chance I get, particularly in oral arguments. I’m going to bring it up over and over and over,” Riley said, adding that he thinks Clinton and her team engaged in “an egregious, egregious security violation.”
“Any other person would have had their security clearance revoked,” he said.
Comey will testify Thursday on Capitol Hill about the FBI’s investigation into Clinton’s email usage in the latest indication that Republicans will attempt to keep the controversy alive through November’s election.
National security lawyers, however, said the recommendation on Clinton’s email use was likely to affect far more than the election, including possibly the behavior of those with security clearances.
“A lot of people will think, ‘She’s getting away with it. I’ll chance it,’ ” Riley said. “We’re going to have more problems.”
Leslie McAdoo Gordon, Riley’s colleague in the Security Clearance Lawyers Association, a legal group in the Washington area, was more skeptical: “People know if they decide to be a little slipshod that they’ll lose their job and their career.”
Republicans, too, pointed out what they said were disparities in the treatment Clinton received and that of others accused of national security crimes.
Rep. Darrell Issa, the California Republican who is the former chairman of the House Oversight Committee, cited the case of Navy Petty Officer 1st Class Kristian Saucier, who pleaded guilty last week to possession and retention of national security information for taking cellphone photos inside the classified engine room of a nuclear submarine where he worked as a mechanic.
“That person’s been prosecuted and he will get five or six years and a dishonorable discharge,” Issa told CNN. “There is a double standard.”
Mark Zaid, a longtime national security lawyer in Washington, said the FBI recommendation on Clinton was one of two precedents the Obama administration had set in dealing with high-profile government figures accused of national security violations. The first case occurred last year, when former CIA Director David Petraeus, a retired four-star general, was allowed to plead guilty to a misdemeanor charge stemming from his handing over eight notebooks containing classified information to his lover and biographer.
I intend to use the Hillary defense. . . . We’ve had people lose 20-year careers for doing less than what she did.
lawyer Sean M. Bigley
“Petraeus acknowledged he intentionally disclosed classified information and lied to the FBI,” Zaid said of the decision to allow the general to plead guilty to a misdemeanor. “This case (involving Clinton) is more about carelessness.”
“We have the Petraeus ceiling and the Clinton floor. We have a new standard as to what comprises intent with respect to criminal cases.”
White House Press Secretary Josh Earnest sidestepped questions about the discrepancy in the handling of security cases. He said the administration still expected government officials to follow the rules.
“We’ve made clear what the policy is as it relates to the use of government email, and our expectation is that individuals who serve in the administration are using their government email for official purposes,” Earnest said.
But the impact is likely to be far greater than the public might realize, since many national security violation cases don’t come to public light.
“This happens a lot without anyone even knowing about it except the agencies and people involved,” said McAdoo Gordon, whose Washington firm specializes in security cases. “I’ve had dozens of these cases over the last 10 years, and that’s just the tip of the iceberg.”
Kel McClanahan, another national security lawyer, said the FBI had not pursued an important line of inquiry: whether Clinton violated the law merely by setting up private servers and diverting government records. Someone who “conceals, removes, mutilates, obliterates or destroys” government records can face a fine and up to three years in prison. The Justice Department has sent defendants to prison for such a crime, McClanahan said.
“The thrust of this law is to prevent people from depriving the government of the use it gets from public records, and that is exactly what happened here,” McClanahan said.
The costs inflicted on those ensnared in national security probes can be devastating.
Thomas Drake, a former official at the National Security Agency, a U.S. spy agency that collects and monitors information and data, was criminally prosecuted in 2010 under the Espionage Act. His alleged crime: disclosing to a journalist, Congress and a government watchdog millions of dollars in waste and other problems with the surveillance program and response to the Sept. 11, 2001, attacks.
The Obama administration prosecuted him, asserting that he had revealed classified information. The case eventually fell apart, but the Justice Department agreed to settle the matter only if Drake entered a guilty plea to a misdemeanor charge of exceeding authorized use of a government computer.
Drake said he was startled by the similarities between the allegations that were not proved in his case and what Comey said the FBI had confirmed about Clinton’s behavior. Both involved deleting emails, but in Drake’s case the FBI argued he’d obstructed justice for having done so. The NSA suspended his security clearance, which he said left him unemployable by the federal government. He now works in an Apple store in Maryland.
“It’s a clear double standard,” Drake said. “If you’re high enough up, you’re the presumptive presidential nominee for the Democratic Party, then you get a huge pass. The hypocrisy is overwhelming. My life was shattered. She gets a pass to compete to be president of the United States.”
Lesley Clark contributed to this report.