For those of you salivating — or trembling — at the thought of Hillary Clinton being clapped in handcuffs as she prepares to deliver her acceptance speech at the Democratic convention this summer: deep, cleansing breath. Based on the available facts and the relevant precedents, criminal prosecution of Clinton for mishandling classified information in her emails is extraordinarily unlikely.
My exasperation with Clinton’s use of a private email server while secretary of state is long-standing and unabated. Lucky for her, political idiocy is not criminal.
“There are plenty of unattractive facts but not a lot of clear evidence of criminality, and we tend to forget the distinction,” American University law professor Stephen Vladeck, an expert on prosecutions involving classified information, told me. “This is really just a political firestorm, not a criminal case.”
Could a clever law student fit the fact pattern into a criminal violation? Sure. Would a responsible federal prosecutor pursue it? Hardly — absent new evidence, based on my conversations with experts in such prosecutions.
There are two main statutory hooks. Title 18, Section 1924, a misdemeanor, makes it a crime for a government employee to “knowingly remove” classified information “without authority and with the intent to retain such documents or materials at an unauthorized location.”
Prosecutors used this provision in securing a guilty plea from former CIA director David H. Petraeus, who was sentenced to probation and fined $100,000. But there are key differences between Petraeus and Clinton.
Petraeus clearly knew the material he provided to Paula Broadwell was classified and that she was not authorized to view it. “Highly classified . . . code word stuff in there,” he told her. He lied to FBI agents, the kind of behavior that tends to inflame prosecutors.
In Clinton’s case, by contrast, there is no clear evidence that Clinton knew (or even should have known) that the material in her emails was classified. Second, it is debatable whether her use of the private server constituted removal or retention of material. Finally, the aggravating circumstance of false statements to federal agents is, as far as we know, absent.
The government used the same statute in 2005 against former national security adviser Sandy Berger, who was sentenced to probation and fined $50,000. Here, too, the conduct was more evidently egregious than what the public record shows about Clinton’s. Berger, at the National Archives preparing for the 9/11 investigations, twice took copies of a classified report out of the building, hiding the documents in his clothes.
For Clinton, the worst public fact involves a 2011 email exchange with aide Jake Sullivan. When she has trouble receiving a secure fax, Clinton instructs Sullivan to “turn [it] into nonpaper [with] no identifying heading and send nonsecure.” But Clinton has said she was not asking for classified information. In any event, it does not appear her instructions were followed.
Another possible prosecutorial avenue involves the Espionage Act. Section 793(d) makes it a felony if a person entrusted with “information relating to the national defense” “willfully communicates, delivers [or] transmits” it to an unauthorized person. That might be a stretch given the “willfully” requirement.
Section 793(f) covers a person with access to “national defense” information who through “gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust.” The government has used the “gross negligence” provision to prosecute a Marine sergeant who accidentally put classified documents in his gym bag, then hid them in his garage rather than returning them, and an Air Force sergeant who put classified material in a Dumpster so he could get home early.
The argument here would be that Clinton engaged in such “gross negligence” by transferring information she knew or should have known was classified from its “proper place” onto her private server, or by sharing it with someone not authorized to receive it. Yet, as the Supreme Court has said, “gross negligence” is a “nebulous” term. Especially in the criminal context, it would seem to require conduct more like throwing classified materials into a Dumpster than putting them on a private server that presumably had security protections.
My point here isn’t to praise Clinton’s conduct. She shouldn’t have been using the private server for official business in the first place. It’s certainly possible she was cavalier about discussing classified material on it; that would be disturbing but she wouldn’t be alone, especially given rampant over-classification.
The handling of the emails is an entirely legitimate subject for FBI investigation. That’s a far cry from an indictable offense.
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