David-Kendall

Hillary Clinton, by virtue of some deus ex machina, might skate on charges that she mishandled classified information. It is becoming increasingly clear, however, that her inner circle — primarily but not exclusively Huma Abedin Wiener, Cheryl Mills, Philippe Reines, and Jake Sullivan — are in grave legal jeopardy. While Clinton can claim with some plausibility that she didn’t send or receive classified information (because her aides had stripped security classification from the material thereby giving her this out) her aides cannot make such a claim.

The latest person to enter the bulls-eye of the FBI investigation is long time Clinton attorney and consigliere, the Tom Hagen of the Clinton Crime Family, David Kendall.

Hillary Clinton’s personal attorney David Kendall says he had a “top secret” security clearance granted by the State Department in order to review information related to the House Benghazi investigation, but a senior Republican senator insists that clearance didn’t give the lawyer authority to hold Clinton’s most sensitive emails.

For weeks, Republican lawmakers such as Senate Judiciary Committee Chuck Grassley have raised questions and demanded information about Kendall’s authority to access portions of Hillary Clinton’s emails that the State Department has determined are classified. State officials previously confirmed that Clinton’s attorneys had a clearance but did not name the lawyers.

In a new letter to Grassley, Kendall says he got a Top Secret/Sensitive Compartmented Information clearance from the Justice Department in November 2013 and a Top Secret clearance from the State Department about a year later. Kendall says his Williams & Connolly law partner, Katherine Turner, also got a Top Secret clearance from State in December 2014.

“These State Department security clearances remain active. We obtained them in order to be able to review documents at the Department of State, to assist former Secretary Clinton in preparing to testify before the House Select Committee on Benghazi,” Kendall wrote on Monday.

The article goes on to give Kendalls’ defense for having held onto a trove of classified information for going on three years:

Responding to a query from Grassley earlier this month, Kendall said his law firm “followed the guidance provided by the Department of State” about how to handle a thumb drive containing backup copies of Clinton’s messages. Kendall said in a letter to [mc_name name=’Sen. Ron Johnson (R-WI)’ chamber=’senate’ mcid=’J000293′ ] (R-Wis.) earlier this month that he received a safe from the State Department on July 8 to secure the thumb drive.

Before we go any further, let’s revisit the bidding.

clinton ig snip

This is the letter from the Intelligence Community IG. This says that there was material found on Clinton’s “thumb drive” that had one of the highest security classifications in the United States.

The TK identifies that the material originated with a Keyhole-series reconnaissance satellite. The Keyhole satellite produces imagery. Period. It doesn’t produce voice or data intercepts. You can’t “quote” or “paraphrase” Keyhole product in an email. Someone in Clinton’s inner circle is going to have to explain how this information migrated from a Secure Compartmented Information Facility (SCIF) to an unsecured email transmission and found a home on Clinton’s private server stuffed in the unsecured bathroom of a politically connected ISP in Colorado.

Why does this put Kendall in jeopardy. First and foremost a Top Secret clearance doesn’t give you access to Top Secret information. Along with clearance comes need to know. That involves a process of being “read into” a SCI program, like TK. If you have a TS clearance and are SCI-eligible (note that Kendall claimd that his TS clearance from Department of Justice was SCI-eligible but not that he was read into any SCI program) you only have access because your job requires it. There is no circumstance under which a non-federal attorney for a private citizen would hold a TS//SI type clearance.

In its most basic version, David Kendall has had in his possession for three years a lot of classified information that he is not authorized to see. Via John Schindler of 20 Committee:

The devil lurks in the lawyerly details here, so allow me to unpack the argument. We can infer from Kendall’s statement that his TS/SCI clearances received from DoJ do not remain active, and that’s critically important here, since the Intelligence Community’s Inspector General has determined that, from only the forty (of some 30,000) of Hillary’s emails they investigated, two actually had TS/SCI information in them (specifically also TALENT KEYHOLE and NOFORN, making it even worse to have put this on an unclassified and unencrypted server). If Kendall’s SCI was not active when he received and held Hillary’s emails classified at that level, he too was in violation of Federal law.

Even assuming, arguendo, that Kendall had a valid clearance. there becomes the question of storage. From at least January 2013 until July 2015, this secret material was stored either on Hillary’s server, in a building with no alarm system. In July, State delivered a safe to Kendall. Back to John Schindler:

Additionally, per Federal law, TS/SCI information must always be placed in a Secure Compartmented Information Facility, a special, purpose-built room designed to protect against physical and electronic intrusion. A full-blown SCIF surely Kendall did not possess. It has been reported that the State Departmentbelatedly supplied Kendall with a safe to store his client’s thumb-drives and emails, which was nowhere near adequate to protect TS/SCI information. Not to mention that he apparently kept Hillary’s materials unsecured for months before he received the DoS safe in July. While a hardened safe in an unclassified office can store classified information up to the Secret level, TS/SCI requires a complete SCIF. Anything less is a clear violation of Federal law. Hillary has placed herself and her attorney in a precarious position here.

Hillary’s laissez faire attitude towards classified information has not only put national security in jeopardy by exposing very sensitive documents to civilian hackers and foreign intelligence services, she has made everyone around her complicit in her mishandling of information. Unlike Hillary, though, they are not high profile and they are not running for president. The FBI has a criminal investigation underway. It is possible that political pressure will keep the FBI from taking the investigation as far as Hillary but the FBI is highly unlikely to walk away from this with no indictment and with the knowledge that there is a good chance of a Congressional investigation and of a Republican president and attorney general. It is difficult to see how Kendall evades culpability.