Marcus: Clinton’s email use ‘political firestorm,’ not criminal

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 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. 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 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.

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.

Negligence possible

Another possible prosecutorial avenue involves the Espionage Act. Section 793(d) makes it a felony for a person entrusted with “information relating to the national defense” who “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.

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.