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Mike Pence: “If your son or my son handled classified information the way Hillary Clinton did … they’d be court-martialed.”
Tim Kaine: “That is absolutely false and you know that.”
Pence: “Absolutely true.”
— exchange during vice presidential debate, Oct. 4, 2016

Readers asked us to referee this exchange, which called for a deeper dive separate from our debate roundup. Pence and Kaine have a son each in the Marines. Pence said their sons would be court-martialed if they “handled classified information the way Hillary Clinton did.” Kaine argued that that was “absolutely false,” and Pence argued that it was “absolutely true.”

To an extent, this is an apples-to-oranges comparison, because Clinton was a Cabinet-level secretary who had classification authority through an executive order. This is not comparable to a rank-and-file service member in the military. But for the purpose of this fact-check, we wanted to know who was “absolutely” correct. We consulted about a dozen retired military lawyers, and here’s what we found.

The Facts

Clinton case

FBI Director James B. Comey decided not to recommend criminal charges against Clinton after the agency’s investigation of her use of a private email server when she was secretary of state. But Comey said Clinton was “extremely careless” in her handling of classified material and that “any reasonable person” in her position should have known better.

Comey said that in 110 emails, there was information that was sensitive enough to be classified at the time the messages were sent or received. Clinton has said it was a mistake to use a private server, and she now says she believed none of the emails were classified because the documents didn’t have classified header markings. (For more details on the Clinton email controversy and classified information in her emails, see our roundup of 14 fact-checks: wapo.st/ClintonEmailFacts)

“Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case,” Comey said.

Prosecutors weigh a variety of factors before bringing charges, especially whether there is evidence regarding intent. Other cases involving mishandling or removing classified information that were prosecuted involved some combination of “clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here,” Comey said, adding that investigators “cannot find a case that would support bringing criminal charges” against Clinton.

Court-martial?

Court-martial describes the military’s version of a civilian criminal trial, for someone charged with violations of the Uniform Code of Military Justice. The punishment ranges from confinement to a reduction in rank and pay.

Could a service member be court-martialed for handling classified information in the way Clinton did? Yes and no.

Commanders are the convening authority to send cases to court-martial. But commanders also are guided by the military principle to “resolve problems and seek answers at the lowest possible level.” That means commanders may decide to pursue administrative remedies rather than taking the matter to a full trial. The administrative action would depend on each service member’s disciplinary history, the evidence available and prosecutorial discretion.

A prosecutor probably would use the “dereliction of duty” charge under military law, if the matter involves willful or negligent handling of classified information. But the experts we spoke with were split on whether Clinton’s case would qualify as a “dereliction of duty” charge against a service member.

“Would a service member be at risk of being court-martialed for a similar conduct? Yes. Do I think it would happen? No,” said Geoffrey Corn, a Houston College of Law professor and retired Army lieutenant colonel who served as a military lawyer in the Judge Advocate General Corps (JAG). “If the service member were convicted by a court-martial, do I think court-martial would sentence a service member to a significant period of confinement? No.”

A service member might be court-martialed if the circumstances were sufficiently egregious. But cases in which someone is found to be careless — like Clinton — usually end up in an administrative remedy, such as a letter of reprimand, said Dru Brenner-Beck, president of the National Institute of Military Justice and a retired Army JAG officer. Administrative actions, such as losing a rank, being forced out of the service or being issued a letter of reprimand, can be career-ending.

Comey said “no reasonable prosecutor” would take Clinton’s case to court. If a military lawyer came to the same conclusion, the lawyer would advise the commander to drop the court-martial or take an administrative route, said Eugene Fidell, a military-justice expert at Yale Law School and author of “Military Justice: A Very Short Introduction.”

“I can’t think of a case where conduct comparable to what Secretary Clinton is said to have done has wound up in a court-martial,” Fidell said, adding that Kaine was correct.

Others said being “extremely careless” with classified information could certainly end up in courts-martial and that Pence was correct. Experts who agreed with Pence said there are strict military regulations for the handling of classified materials, and the standard would be higher for someone who should have “known better,” as Comey said about Clinton. But even those who agreed with Pence could not recall a specific court-martial case that was directly comparable to Clinton’s.

Eric Montalvo, a founding partner of Federal Practice Group and a retired Marine Corps JAG officer, pointed to a case of an Army specialist whom he represented. The specialist had faced an array of charges at court-martial, including one that related to her alleged failure to follow orders about sending classified information. The specialist lacked sufficient training to access or use the classified network, he said. He said the case illustrates how a low-level soldier could be held responsible in ways that do not apply to a Cabinet-level secretary.

Other cases

Some readers pointed us to two cases to compare to Clinton’s situation: those of Kristian Saucier and Jason Brezler. But they are not exactly comparable, either.

Saucier is a Navy sailor who was sentenced to prison after taking photos in classified areas of a nuclear submarine. He then destroyed the evidence after learning that he was under investigation. Saucier’s lawyers compared Saucier’s case to Clinton’s emails to say he “possessed six (6) photographs classified as ‘confidential/restricted,’ far less than Clinton’s 110 emails,” but the judge was unconvinced by this argument. Saucier’s lawyers also acknowledged that the two cases were different: Saucier admitted knowing that what he was doing was illegal, unlike Clinton, CNN reported.

Brezler is a Marine Corps officer who self-reported he improperly disseminated classified information, and against whom the board of inquiry recommended removal from the service. His attorney plans to use the Clinton email case, and the case is in court.

The Pinocchio Test

Pence said it was “absolutely true” that a service member who handled classified information the way Clinton did would be court-martialed. Kaine said it was “absolutely false.” What we found was that it’s absolutely unclear, and is subject to prosecutorial discretion and the circumstances of each case.

The facts tip in Kaine’s favor. Even the experts who agreed with Pence could not recall a specific court-martial case that was directly comparable to Clinton’s. Technically, yes, a service member can be court-martialed for behavior like Clinton’s, but it’s more likely the person would face administrative action. And the administrative action would depend on each service member’s disciplinary history, the evidence available and prosecutorial discretion. While readers pointed out the Saucier and Brezler cases, Saucier’s own lawyers acknowledged that his case was not like Clinton’s, and Brezler’s case is still in court.

Pence and Kaine spoke in absolute terms during the debate, but the reality is much less absolute. Kaine would have been on more solid ground if he had simply responded “that’s a ridiculous comparison” or if he had challenged Pence to point to a specific case. Instead, he flat-out denied it was possible. We award both Pence and Kaine Two Pinocchios.

Two Pinocchios

 


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