I don’t want this to get political, but the question obviously stems from a current political situation and it’s silly to pretend it isn’t.
Let’s say, purely hypothetically and only for the sake of this thread that it turns out that Hillary did have a bunch of top-secret documents on her server and that those documents were classified Top Secret before she put them on there. Again, just suppose, only for the sake of the thread.
Just as this hypothetical news is breaking, she goes to her lawyer, one Atticus Finch and says (hypothetically) “Mr Finch, I’ve intentionally stored Top Secret documents on my private server. What do I do now?”
Can Atticus look at the documents to see what she’s got and how much trouble she’d be in, in this scenario? Or would he be violating the law by looking at Top Secret stuff (Atticus, being a simple country lawyer, has no security clearance)?
Let’s say (and now we’re going far afield of any real situation) that he looks and there’s some really dangerous stuff there-troop movements, locations of nuclear subs, -proof that the moon landing was faked to cover up Elvis’s meeting with the Grey Aliens, Miss Lillians’s secret recipe for spice cookies, etc.) This is possible world-disaster stuff if it got out. Does Atticus have a duty to report this for the good of the country or does Atticus’s responsiblity to his client take precedence?
That’s an interesting question, and one obvious concern is how Atticus would be able to verify that his client was correct in concluding that the documents were, in fact, Top Secret. Perhaps his client made a mistake and misinterpreted “TS” stamps on USDA harvest reports, thinking that TS meant “Top Secret” when in fact it referred to “Texas Seed” data (in contrast to the related Ohio Seed (OS) data). Perhaps the documents were Top Secret when they were placed there, but those documents were later declassified (or at least downgraded) and are no longer Top Secret.
Anyone accessing classified information is legally required to be cleared. There are plenty of lawyers with TS clearances for her to choose from (ummm… and she’s a lawyer, too, although I’m not sure what her current status is with the various legal bars).
Just because lawyers are sworn to maintain confidentiality doesn’t mean that they are all eligible to have access to National Security Information. Heck, there are plenty of lawyers out there who would be ineligible for a clearance.
Disclosure to the lawyer arguably would itself constitute a separate offense by the client. As for the lawyer’s liability, there is some limited precedent for prosecuting people for knowingly receiving classified information, but it’s complicated. The government went after a couple of AIPAC lobbyists on that basis, but the court ruled that the prosecution essentially had to prove that the material was received for the purpose of harming national security. The case did not go forward after that, but I don’t know if there was a plea or if the charges were dropped.
It’s a conundrum, but personally, I would refuse to view or receive the documents, out of concern that I would be advising the client to break the law if I permitted her to show them to me. If the client was looking to work out a plea agreement with the government, the government would likely be obliged to make a secure facility available where the documents could be reviewed, and potentially carry out some sort of expedited clearance review for her counsel (although it might be easier for her to retain counsel who has obtained top secret clearance in the past).
If she was not looking for a plea, I’m not sure that I could advise her anything other than to maintain the server securely (I would not advise her to destroy evidence) and not show it to anyone.
Question 2 of course would not arise if I did not see the material. If I did see it, supposing she handed me a sheaf of documents without telling me about their classification, then I think it gets really complicated. As i see it, I’m now an interested party, and I’m not sure I can continue to represent her. I might have to direct her elsewhere, and potentially retain counsel myself. In this scenario, however, I did not receive the classified information knowingly, so I am probably in the clear.
I am not aware of any precedent for national security concerns overriding attorney-client privilege. There is an exception to the privilege if the client is seeking legal advice to further an ongoing or intended crime, so if it were apparent that she had come to me to somehow provide cover for an upcoming sale of the material to a foreign power, that could provide a basis for disclosing her to law enforcement.
Why would a competent attorney be tampering with subpoenaed evidence?
When an IT asset is required as evidence, any interaction with it may cause destruction of evidence. Certainly, it presents the opportunity for an accusation of tampering.
Absent some concern about classified information, I’m exceedingly unlikely to turn material over sight unseen in response to a civil subpoena. There may be privileged documents in there. (A criminal search warrant is a different matter, of course). It might make sense to ghost the server and do the review from the copy, however.
Why are you posing this? The lawyer has specific evidence from his own client that she has top secret information. IMO (IANAL) he could be in some pretty deep legal shit if he arbitrarily decides to look through it all.
My question is whether the prosecution has evidence of which specific documents she has. If they don’t, perhaps a subpoena could be knocked down as being too vague (ie, a fishing expedition). If they do, he might be able to argue before a judge to be given access to those specific documents in order to prepare a defense. If she hands him the stuff and he reads it, it seems likely that she would face even more criminal charges, not only possessing top secret stuff, but disseminating to to unauthourized parties as well.
One other thing … its nt clear that holding these documents is in and of itself a crime. For instance, it may be there a specific tectnical requirements about the measures to take in order to keep the information secure, rather than something like, “It must not leave the building.”
My state agency has a whole lot of confidential information (though not military secrets), and we have plicies obout how it is to be safely transmitted or transported – stuff like encrypted flash drives, etc. And if she and her computers followed the security protocol, then perhaps the location of the files isn’t even relevant.
Fenris posed a follow-up changing the hypothetical, asking what happens if the client simply drops the server on the lawyer’s desk, and the lawyer only finds the classified information when he reviews the drive. gnoitall then asked why the lawyer would review the materials at all, and that’s what I was responding to.
Why would Atticus have any need to read the documents to give advice? All he needs to know is that Mrs Clinton did have secret documentation on her email and that would be enough.
Incidentally, lawyers do get to see classified information for cases if and when its needed. However, that determination is made by the Judicial Authorities, usually upon request and is suitably redacted to be limited to what the case is.
They don’t get to decide which and what that can see suo motu.
