State Department preferential treatment of David Kendall, Hillary Clinton’s lawyer, “just smacks of favoritism and elitism,” according to Mark Zaid, one of the nation’s most experienced national security attorneys.
Kendall was permitted to keep in his office unsecured classified material of the former secretary of state’s 55,000 pages of emails maintained on a private email account and server throughout her tenure as the nation’s chief diplomat. He kept the emails in his Washington, D.C. office for seven months.
“I’ve had security clearances at the highest levels, and I have never been permitted to store classified information at my office or any other location,” attorney Zaid told The Daily Caller News Foundation. He has represented dozens of CIA covert operatives and intelligence officials during a career spanning 20 years of work in national security litigation.
“I’ve asked for safes. I have asked for secure telephone lines. The agencies who [intelligence officials] work for won’t provide us with safes or secure phone lines. This just smacks of favoritism and elitism,” he said.
Zaid’s frustration was echoed by other attorneys working in national security cases.
Ed MacMahon has represented both CIA officials and al-Qaida detainees at Guantanamo Bay. He said Clinton’s use of a private server for emails concerning official business of the U.S. government is “unprecedented.”
Asked if he could keep classified documents in his office, MacMahon replied, “Absolutely not. No one with a brain would even think of doing that.”
MacMahon said he has handled multiple cases in which “people have been investigated and prosecuted for returning classified information that appeared less substantial and less sensitive than I’ve read in the paper. And almost all of them were prosecuted.”
Similarly, Victoria Toensing, a veteran respected national security litigator and former deputy attorney general, said the State Department’s action “is a double standard. I’ve never been given that treatment.”
Toensing, who during the Reagan administration established the Justice Department’s first anti-terrorism unit, pointed to the government’s requirement that classified materials be held in a Sensitive Compartmented Information Facility.
“You have to trot yourself out to a government agency that holds classified material and enter a SCIF. You’re like in a prison cell,” she said.
Clinton gave Kendall three thumb drives containing the estimated 30,000 emails last December after the State Department first requested them. Clinton left the department in February 2013.
The thumb drives were not secured in a safe or in a SCIF. On May 22, the department told Kendall classified information was on the drives.
Even so, the thumb drives reportedly remained unsecured in Kendall’s office at the Williams and Connolly law firm until July 8 when department officials insisted Kendall store the devices in a special safe they provided.
Kendall also apparently ignored a May 22 State Department directive that he destroy all emails in his possession. On June 15, he replied that it would not be “prudent” to destroy all of the emails as there were pending congressional inquiries and a State Department Inspector General investigation.
The disclosure was made yesterday by the watchdog group Judicial Watch in correspondence from Under Secretary of State for Management Patrick F. Kennedy to Kendall as part of an ongoing Freedom of Information Act lawsuit against the State Department.
A national security lawyer now in private practice said giving Kendall the safe was insufficient to assure the security of the classified information contained on the thumb drives.
“For the Top Secret/Sensitive Compartmented Information in Hillary’s emails, a stand-alone safe is not sufficient. By regulation, you need a 24-hour alarmed, vaulted SCIF,” said the attorney, who requested anonymity.
The lawyer said Kendall may have violated two federal statutes when he kept the material in his office and not in a government-secured facility.
The two statutes concern the gathering, transmitting or losing of defense information, and the unauthorized removal and retention of classified documents. Kendall may also have breached Executive Order 13526, which President Barack Obama signed in 2009.
The executive order addresses classified national security information and mandates that “an official or employee leaving agency service may not remove classified information from the agency’s control.”
Zaid said federal officials can treat lawyers roughly even when they have top security clearances, as Kendall had.
He recalled when a federal judge sent him the official court decision for his CIA client who had given leaked information to New York Times reporter James Risen. The judge faxed his 15-page decision to Zaid.
The CIA told Zaid he could not retain the judge’s decision about his client’s case and had to “immediately” shred it.
“Ultimately it took them eight months to give me a redacted copy of the decision,” he said. And I was never permitted to ever review the un-redacted copy of that decision, even though I had it in my possession and I was cleared on the case.”
MacMahon said the government’s handling of the Clinton email scandal seems to include a double standard that “bothers me to me as a defense lawyer. It appears that different rules are being applied in this case than applied in the past.”
“I don’t want to be discourteous, but I have no comment,” Kendall told TheDCNF when he was asked for comment.
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