Distinguishing military prosecutions for “grossly negligent” mishandling, the prosecutors also noted that there was no evidence that classified emails were provided to or discovered by people who were unauthorized to receive them. The prosecutors stated, “[A]ll of the emails containing information subsequently determined to be classified were sent for work purposes and were delivered to State Department or other U.S. government officials.”
Regarding Section 1924, the prosecutors stated that the statute requires proof that an individual knew of the removal of classified information and intended to retain that information in an unauthorized location, and that such proof was lacking. The prosecutors cited the absence of classification markings on the emails sent by the senders, with the exception of the three emails forwarded to Clinton containing paragraph markings denoting Confidential information, as well as the lack of evidence that the senders knowingly took classified information and sent it in unmarked emails over unclassified systems. The prosecutors similarly concluded that former Secretary Clinton did not recognize or have reason to believe that the information sent to her contained classified information. Prosecutors cited Clinton’s reliance on the judgment of senior aides and other State Department staff, their attempts to talk around sensitive information in unclassified emails, and her testimony that she did not have reason to question their use of unclassified systems to send that information. The prosecutors concluded that the evidence was insufficient to charge former Secretary Clinton under Section 1924.
The prosecutors also concluded that there was insufficient evidence to support prosecution under 18 U.S.C. § 2071, which prohibits the willful concealment, removal, or destruction of federal records. They concluded that there was insufficient evidence to establish beyond a reasonable doubt that former Secretary Clinton or her senior aides intended to conceal records, citing testimony that these witnesses expected that any emails sent to a state.gov address would be preserved. The prosecutors acknowledged that this testimony was undercut by former Secretary Clinton’s admission that she sometimes communicated with her senior aides using their personal email accounts, as well as an email she received from former Secretary of State Colin Powell at the beginning of her tenure outlining his use of personal email. However, the prosecutors noted that Section 2071 had “never been used to prosecute individuals for attempting to avoid Federal Records Act requirements by failing to ensure that government records are filed appropriately.”
Finally, the prosecutors evaluated whether Mills and Samuelson intentionally deleted emails during the culling process used to separate former Secretary Clinton’s “personal” and “work-related” emails for production to the State Department. They concluded that there was no evidence that emails intentionally were deleted by former Secretary Clinton’s lawyers to conceal the presence of classified information on former Secretary Clinton’s server, particularly because some of the emails produced as “work-related” later were determined to contain highly classified, compartmented information.
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