April 1, 2005: Sandy Berger pleads guilty to the unlawful removal and retention of national security information.

National Security Advisor Sandy Berger (Credit: Washington Life Magazine)

National Security Advisor Sandy Berger (Credit: Washington Life Magazine)

Former National Security Advisor Berger was caught trying to smuggle classified documents out of the National Archives and Records Administration (NARA). (The Los Angeles Times, 3/27/2016Berger took five copies of a memorandum called the “Millennium Alert After Action Report” and later destroyed three of them. (Real Clear Politics, 1/15/2007(The Washington Post, 4/1/2005)

June 6, 2013: Chinese government hacker attacks on US government targets have steadily increased since 2008.

Shawn Henry (Credit: public domain)

Shawn Henry (Credit: public domain)

In the summer of 2008, the presidential campaigns of Barack Obama and John McCain had their computers successfully breached by hackers apparently working for the Chinese government. According to NBC News, “US officials say that Chinese intrusions have escalated in the years since, involving repeated attacks on US government agencies, political campaigns, corporations, law firms, and defense contractors—including the theft of national security secrets and hundreds of billions of dollars in intellectual property.”

Shawn Henry headed up the FBI’s investigation of the 2008 attacks and now is president of the computer security company CrowdStrike. He says there’s “little doubt” the Chinese government has an aggressive electronic espionage program targeting the US government and the commercial sector. “There’s been successful exfiltration of data from government agencies (by the Chinese) up and down Pennsylvania Avenue.” (NBC News, 6/6/2013)

April 2, 2014: Former State Department arms expert Stephen Jin-Woo Kim is sentenced to 13 months in prison after sharing classified information with a reporter.

Stephen Jin-Woo Kim (Credit: Stephen Kim Legal Defense Trust)

Stephen Jin-Woo Kim (Credit: Stephen Kim Legal Defense Trust)

Kim pleads guilty to orally describing classified information from an intelligence report on North Korea’s nuclear program with Fox News reporter James Rosen. Prosecutors say Kim hurt US national security by indirectly alerting North Korea to what the US knew about that country’s capabilities. Kim says he wanted to bring more public attention to the threat posed by North Korea’s nuclear program. Kim also has pointed out that officials frequently leak classified information to reporters, but prosecutors say that the fact that other people do it doesn’t make it any less of a crime. (The Washington Post, 4/2/2014)

October 8, 2015: President Obama calls Clinton’s use of a private email server a “mistake,” but also says, “I don’t think it posed a national security problem.”

President Obama in a 60 Minutes interview that aired October 11, 2015. (Credit: CBS News)

President Obama in a 60 Minutes interview that aired October 11, 2015. (Credit: CBS News)

In a 60 Minutes interview, he goes on to say, “This is not a situation in which America’s national security was endangered.” He adds that, “We don’t get an impression that there was purposely efforts […] to hide something or to squirrel away information,”

However, several days later a White House spokesperson says Obama will wait for the Justice Department investigation’s determination about that. Politico will later comment, “Agents and retired FBI personnel told journalists the comments were inappropriate given the fact that the FBI inquiry was ongoing.” (The Associated Press, 10/13/2015(CNN, 10/13/2015) (Politico, 3/9/2016)

October 16, 2015: FBI agents are upset at President Obama’s comment that he thinks Clinton made a mistake but didn’t endanger national security

The J. Edgar Hoover Building, headquarters of the FBI in Washington, DC. (Credit: Aude / Wikimedia Commons)

The J. Edgar Hoover Building, headquarters of the FBI in Washington, DC. (Credit: Aude / Wikimedia Commons)

The New York Times reports that although the White House backtracked later, “Those statements angered FBI agents who have been working for months to determine whether Mrs. Clinton’s email setup did in fact put any of the nation’s secrets at risk, according to current and former law enforcement officials. Investigators have not reached any conclusions about whether the information on the server was compromised or whether to recommend charges, according to the law enforcement officials. But to investigators, it sounded as if Mr. Obama had already decided the answers to their questions and cleared anyone involved of wrongdoing.”

Ron Hosko, who was a senior FBI official until he retired in 2014, says, “Injecting politics into what is supposed to be a fact-finding inquiry leaves a foul taste in the FBI’s mouth and makes them fear that no matter what they find, the Justice Department will take the president’s signal and not bring a case.” (The New York Times, 10/16/2015

An unnamed upset FBI agent at the Washington Field Office, where the investigation is based, says, “We got the message. […] Obama’s not subtle sometimes.” (The New York Observer, 10/19/2015)

May 2, 2016: The State Department changes its policy on when foreign intelligence should be considered classified.

State Department legislative liaison Julia Frifield sends a letter to the Senate indicating an apparent change in what information the State Department considers properly classified. The vast majority of redactions in Clinton’s emails are for foreign government information, to which Frifield refers as “FGI.”

Frifield writes, “Although the unauthorized release of FGI is presumed to cause harm to the national security—thereby qualifying as Confidential [level] classified information, department officials of necessity routinely receive such information through unclassified channels. For example, diplomats engage in meetings with counterparts in open settings, have phone calls with foreign contacts over unsecure lines, and email with and about foreign counterparts via unclassified systems. Diplomats could not conduct diplomacy if doing so violated the law.” As a result, not all such information should automatically be considered classified.

However, regulations in effect when Clinton was secretary of state called for FGI to be marked “confidential” unless it was designated “C/MOD” (for “confidential/modified handling”). But none of Clinton’s emails appear to have been given that designation. (Politico, 5/12/2016)

May 5, 2016: “Rocket docket” prosecutors are working with the FBI on the Clinton investigation.

Federal Prosecutor Dana Boente (Credit: public domain

Federal Prosecutor Dana Boente (Credit: public domain

It is reported that FBI investigators looking into Clinton’s email scandal have been joined by prosecutors from the US Attorney’s Office in the Eastern District of Virginia. The district is commonly nicknamed the “rocket docket” for the speed with which cases move through it. It is home to the CIA and the Pentagon, so it often deals with national security and terrorism cases. The office is led by veteran federal prosecutor Dana Boente. Prosecutors from the office have been working with the FBI to interview Clinton’s top aides. (The Washington Post, 5/5/2016)

May 27, 2016: US Naval Machinist Kristian Saucier pleads guilty for taking photos inside the attack submarine he had been working on.

Kristian Saucier (Credit: public domain)

Kristian Saucier (Credit: public domain)

He was arrested in May 2015 on charges that he took some pictures that included classified engineering spaces in the backgrounds. It does not appear he attempted to share the photos with anyone, but he threw a cell phone into a dumpster that contained the phone, and someone else found it and reported it. He pled guilty to one felony count of unlawful retention of national defense information. This is part of the Espionage Act, even though he has never been accused of espionage. Sentencing guidelines suggest he could get five to six years in prison.

Politico reports that some are comparing Saucier’s case to Clinton’s email scandal, and suggesting that the less powerful like Saucier face stiffer punishments. The photos he took have been deemed “confidential,” the lowest classification ranking, while Clinton had some emails on her unapproved private server at the higher rankings of “secret” and “top secret.” Edward MacMahon, a Virginia defense attorney not involved in the Saucier case, says: “Felony charges appear to be reserved for people of the lowest ranks. Everyone else who does it either doesn’t get charged or gets charged with a misdemeanor.” (The Navy Times, 8/1/2015) (Politico, 5/27/2016)

July 7, 2016: The non-prosecution of Clinton could make it more difficult to get convictions in other cases.

160707GregoryGreinerpublicdomain

Gregory Greiner (Credit: public domain)

In the wake of FBI Director James Comey’s decision not to recommend Clinton’s indictment, the Washington Post reports, “The extraordinary case of Hillary Clinton and her emails raises intriguing questions for federal employees facing charges related to classified materials. … Because she has escaped prosecution, will others, too?”

Mark Zaid, a lawyer who specializes in national security employment cases, says that after former CIA Director David Petraeus got what was seen as a very generous plea deal, resulting in no prison time despite pleading guilty to mishandling classified material, he used that case to push for leniency for one of his clients “right away. I mean, literally, the ink was not dry.” Zaid’s client also was charged with mishandling classified information, but “We talked to the prosecutors and said, ‘We want the Petraeus deal.’ We got it.” Zaid plans to use Clinton’s case to push for leniency in future cases.

National security lawyer Gregory Greiner similarly argues that after Clinton’s non-prosecution, defense lawyers will try to raise the bar for prosecutors. He says that it only takes one person on a jury to argue that “this guy didn’t do anything different than what Hillary Clinton did.” (The Washington Post, 7/7/2016)