Sorry But There Still Isn’t Enough to Prosecute Hillary Clinton

hillary clinton 2In late January, I penned a piece here pronouncing that Hilary Clinton should not be charged with a federal crime over her use of a private email server while Secretary of State. . . .at least based on everything we knew at the time. Since then, we have learned more  about the investigation, classification of certain emails, and the calls for her head on a judicial platter have been magnified. Many now expect some resolution within weeks so I thought it necessary to review my conclusion based on the most current information.

Lets be clear about one thing, as much as the Clinton camp would like to minimize the entire matter, this is a real and serious political liability. Both Donald Trump  and Ted Cruz have promised that they will make her email server a central issue in his campaign and it is, and should be, fair political game. But they also have professed to seek prosecution of her if they win and that conflation of law and politics is at the heart of the problem.

As discussed below, I believe she probably violated government procedures and rules but even based on all the new material that has emerged, it also would be a purely politicized prosecution (if there isn’t more than we currently know). “Wrong” doesn’t necessarily mean “illegal” and in this case, that remains the critical distinction many seem to want to ignore.


It should be clear to any objective observer that it was an enormous error for Clinton to use a homemade server for all of her emails while she was in a position that regularly handles and assesses the most sensitive of government secrets. (She had admitted as much and then she backtracked from that initial mea culpa).

It is also indisputable that it was neither a crime nor even a violation of State Department procedure for Clinton to have used personal email even for government business at that time. We have learned since my original piece ran, that both Secretaries of State Powell and Condolezza Rice not only used personal email accounts but received material later deemed classified (with Rice it was her senior staffers). No one can reasonably suggest that a Secretary of State receiving that sort of material on his or her personal email, should be prosecuted.

What makes this different, however, is that Clinton created and maintained her own server in her home, and therefore controlled, all her emails, personal and professional. Hillary Clinton was also the only Secretary of State not to use a email account at all. It seems the only other major public official to go to those sorts of lengths was Jeb Bush who, as Florida governor, used a private server for both his personal account and the accounts of some of his staffers from 1999 to 2007. But then again, he also used a government account and wasn’t Secretary of State dealing with matters of national security (assuming brother George wasn’t sending any over).

Furthermore, we have learned that the NSA specifically expressed concerns about the use of her blackberry and 22 of Clinton’s emails won’t be made public because the State Department has deemed them “top secret” — too sensitive to release even now.

The Law

Based on what we know today, there are likely two primary laws at the heart of the probe and two or three others that might be considered investigative fallout. Partisans alleging that Clinton may have violated as many as 15 crimes are either exaggerating or simply seeking to overstate the gravity for effect.

1) The first and most discussed statute has been 18 U.S.C.A. § 1924(a), and it’s a misdemeanor:

“Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both.”

There are serious legal hurdles to overcome for those who would seek to file a charge under this law. First, none of the information she possessed and/or presumably “removes” (as far as we know) had officially been declared “classified” at that time. That matters. Both Clinton and Secretary Powell for example, have challenged the documents classification. Senator Diane Feinstein, ranking member of the Intelligence Committee, pointed out that all of the 22 top secret sensitive emails “didn’t originate” with Clinton and that “none of the emails sent to Secretary Clinton have the mandatory markings that are required when classified information is transmitted.”

Sure, there is an argument that classified “documents” are not the same as classified “information” and that certain information is “classified at birth” and therefore always officially classified. But there’s no question when it comes to the official and formal designation, the material was later declared classified. As frustrating as that may be to those who want to prosecute, it’s a critical legal issue.

The recent disclosure that she set up the server about a month after the NSA rejected her team’s request to use smartphones is important in creating a chronology and one could argue that maybe it even served as a catalyst for the Clinton team to create the server in the first place. But whatever the motivation behind team Clinton’s decision, this still doesn’t overcome the legal hurdles to prosecute this as a crime.

This isn’t a law school exam where we attempt to figure out how creative one can become in fitting a law into a particular fact pattern. We are talking about whether a criminal charge should be filed based on intentional conduct when even governmental agencies squabble over what is classified and what isn’t. So proving that she “knowingly” removed “classified information” “without authority and with the intent to retain such documents or material at an unauthorized location” is far-fetched based on what we know today.

2) But those legal requirements of intentional conduct regarding classified information do not exist in the language of 18 U.S.C.A § 793(f), which is a felony:

“Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—Shall be fined under this title or imprisoned not more than ten years, or both.”

Here, if it is determined that by “gross negligence” she permitted information “relating to the national defense” (as opposed to the more formal “classified” definition) “to be removed from its proper place of custody,” then she could be facing up to 10 years behind bars.

Reading this as a layperson one might think how could it not be negligent to have top secret material on your personal email account? Except that this is an Espionage statute, not lay language and this law has been interpreted to have a very specific meaning.

In 1941, the U.S. Supreme Court heard a case which challenged whether the phrase “national defense” in this very Espionage Law was too vague and over-broad. The answer was no only because:

“we find no uncertainty in this statute which deprives a person of the ability to predetermine whether a contemplated action is criminal under the provisions of this law. The obvious delimiting words in the statute are those requiring intent or reason to believe that the information to be obtained is to be used to the injury of the United States, or to the advantage of any foreign nation. This requires those prosecuted to have acted in bad faith.”

The Supreme Court clearly never envisioned a prosecution under the Espionage Act without “intent” to injure the United States and in “bad faith” (This was in reference to a different section of the same law but the point remains the same). Other courts have interpreted the phrase “national defense” narrowly as a direct result of the fact that on its face, the words seem so broad.

Could an aggressive prosecutor argue that it was grossly negligent for her to run all of her emails out of her home server and that it included “national defense” information “removed from its proper place of custody?” Sure, but that would also completely warp the intent and interpretation of this espionage law without far more evidence than what we have today.

Furthermore, ”gross negligence” as a legal matter, doesn’t, and shouldn’t, just mean it was wrong or dumb or even just careless. Rather gross negligence is generally  defined legally as: “A lack of care that demonstrates reckless disregard for the safety or lives of others, which is so great it appears to be a conscious violation of other people’s rights to safety. It is more than simple inadvertence….”
As Professor Laurie Levinson explained in  the National Law Journal:

“Politics aside, it is difficult to find prior cases where the unwise handling of classified information led to a federal indictment. For the last 20 years, the federal statutes have been used when there were intentional unauthorized disclosures. The Department of Justice appears to have gone after ‘leakers,’ but not bunglers.”

That is another critical point here. This Espionage Law clearly was never intended to address a Secretary of State using — foolishly or even improperly to maintain her privacy — a personal email server to send and receive emails. Inevitably, this novel use of the law would leave a political stink. Efforts to compare this situation to other cases that have been prosecuted also fail on the facts.

Yes, many laws are regularly used as swords well beyond their intended purpose and if we learn that she or her aides intentionally removed or even copied classified documents, removed the classification and sent them to her unsecured personal server, that could be a different story. We do know that in some of the released emails, her aides even discuss the need to steer away from classified information.

Exactly what they did to give her access to certain information and/or who ordered it, will be important. Based on what we know today, however, charging Clinton with Espionage would be overreaching to say the least.

But even if the feds decide not to pursue either of those charges, any investigation is treacherous because you never know what else might be uncovered.

3) Maybe the most politically devastating legal allegation reported thus far is that the feds may be investigating whether she offered up political favors to those who donated to the Clinton Foundation.

“The agents are investigating the possible intersection of Clinton Foundation donations, the dispensation of State Department contracts and whether regular processes were followed,” Fox News reported.

Since then, The Washington Post reported that the State Department (not the FBI) issued a subpoena to the Foundation: “seeking documents about the charity’s projects that may have required approval from the federal government during Hillary Clinton’s term as secretary of state.”

If this was pursued as a crime, its typically referred to as public corruptionwhich doomed former Virginia Gov. Robert McDonnellnow sentenced to serve two years in prison. Although that case involved gifts and trips, etc., and the Supreme Court is reviewing his conviction, the danger with this sort of allegation is that once a prosecutor decides to move forward, they can be very difficult cases to defend. Typical political horsetrading, access and public corruption can be difficult to distinguish. Regardless, at this point there are plenty of allegations but absolutely no corroborated evidence to support any sort of criminal charge.

4) Depending on what was asked and answered, more than anything, Clinton might be concerned about the fact that the FBI has reportedly extended its investigation to include whether “materially false statements” were made to federal agents during the course of the investigation. Former House Speaker Dennis Hastert learned the hard way that even if the feds decide you aren’t guilty of the crime they were initially investigating, you still can’t lie to federal agents. Keep in mind that public statements are generally not subject to possible criminal charges (unless you are Martha Stewart), but statements to federal agents must be truthful. Again, there is simply no evidence at this point that she lied to the feds.

Recent Legal Analysis

So how does all of this jibe with what former Judge Michael Mukasey wrote recently in the Wall Street Journal:

“Yet—from her direction that classification rules be disregarded, to the presence on her personal email server of information at the highest level of classification, to her repeated falsehoods of a sort that juries are told every day may be treated as evidence of guilty knowledge—it is nearly impossible to draw any conclusion other than that she knew enough to support a conviction at the least for mishandling classified information.”

Unfortunately, this is the very sort of conflation of possible wrongdoing and crimes for which journalists are often criticized by lawyers. Judge Mukasey, for whom I have enormous respect, should know better. He seems to be arguing that because this all just feels wrong and even criminal-y, she should at least be charged with a misdemeanor. That is, of course, not how the law can or should work. In fact, Judge Mukasey learned the hard way that misstating the law when discussing the case against Clinton can  be hazardous. Judge Mukasey also amplified the conservative talking point (which Trump has also echoed) that the case against Clinton is eerily similar to the charges against former general David Petraeus:

“This is the same charge brought against Gen. David Petraeus for disclosing classified information in his personal notebooks to his biographer and mistress, who was herself an Army Reserve military intelligence officer cleared to see top secret information.”

Except that it is nothing like that case. Apart from the possible charge, there are actually few or no similarities from a factual perspective as the lead prosecutor in the Petreaus case explained in an op-ed in USA Today:

During his tenure as the commander of the International Security Assistance Force in Afghanistan, Petraeus recorded handwritten notes in personal journals, including information he knew was classified at the very highest level.

Both the law and his oath required Petraeus to mark these books as “top secret” and to store them in a Secured Compartmented Information Facility. He did neither. Rather, Petraeus allowed his biographer to take possession of the journals in order to use them as source material for his biography.

Importantly, Petraeus was well aware of the classified contents in his journals, saying to his biographer, Paula Broadwell on tape, “I mean, they are highly classified, some of them. They don’t have it on it, but I mean there’s code word stuff in there.” When questioned by the FBI, Petraeus lied to agents in responding that he had neither improperly stored nor improperly provided classified information to his biographer. Petraeus knew at that time that there was classified information in the journals, and he knew they were stored improperly.

In the law, intent can be everything. Petraeus clearly knew he was violating the law, but based on what we know today, there is no evidence – not suppositions or partisan allegations but actual evidence – that Clinton knew that using a private email server was even potentially criminal at the time. Even assuming for argument’s sake she created the server to keep her emails out of the public eye, that is in no way remotely comparable to the Petraeus case. Efforts to contrast the two cases fall flat factually and legally.

Government Procedural Rules

But Clinton has also asserted that what she did “was allowed” at the time. So even if she isn’t found to have violated the law, did she violate any non-criminal federal regulations by failing to, at the least, maintain all her records properly?

Probably. According to 2009 National Archives Regulations obtained by Politico:

“Agencies that allow employees to send and receive official electronic mail messages using a system not operated by the agency must ensure that Federal records sent or received on such systems are preserved in the appropriate agency record keeping system.”

It’s a tough argument for her to make that the federal records were being preserved properly “in the appropriate agency” which she led from 2009-2013. Furthermore, State Department internal communications made clear as early as 2011 that personal emails should not be used for “official department business.” Any possible ambiguity was eliminated in 2014  when President Obama signed changes to the Federal Records Act that explicitly prohibited federal officials from using personal email addresses unless they also copy or send the emails to their official account.

Even before 2014, however, it seems quite clear that the 2009 language and follow up cables from the State Department indicate she did not adhere to proper protocol. But there is a colossal difference between “wrong,” “improper” or even a regulation violation, and a federal crime.


To be clear, none of this means Clinton won’t be charged. There may be a trove of non-public evidence against her about which we simply do not know. It’s also possible that the FBI recommends charges and federal prosecutors decide not to move forward as occurs in many cases. No question, that could create an explosive and politicized showdown. Some even suggesting that FBI Director James Comey, a Republican, should resign in protest if that happens.

But based on what has been public through the beginning of April, there doesn’t seem to be a legitimate basis for any sort of criminal charge against her. I fear many commentators are allowing their analysis to become clouded by a long standing distrust, or even hatred of Hillary Clinton.

In fact, I recently expressed my view of this investigation to a friend who retorted “I didn’t know you are a Hillary guy?” I guess there is almost no way to analyze this case without being accused of partisanship but then please also mischaracterize me in this context as a Dennis Hastert guy, a George Zimmerman guy, a Brendan Dassey guy, a gun control guy and an anti-Obama guy (just to name a few).

Hillary bashing is good clean political sport but a federal criminal indictment is serious business, saved for serious crimes and hopefully based on serious evidence, which as of yet, has not materialized.

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