Blog ››› ››› MEDIA MATTERS STAFF
Politico’s Senior White House Reporter Josh Gerstein reviewed “dozens of federal indictments for mishandling of classified records” and then reported that an indictment of former Secretary of State Hillary Clinton for her use of a private email server is “highly unlikely.” He also noted that the cases that did lead to an indictment “almost always” included "a deliberate intent to violate classification rules" and “aggravating circumstances that don’t appear to be present in Clinton’s case.”
Right-wing media have repeatedly attempted to muddy the facts surrounding the investigation into Democratic presidential candidate Clinton’s private email server by falsely comparing the case to that of Gen. David Petraeus, speculating on the implications or hidden motives of every new turn in the investigation, and even suggesting that the Department of Justice would handle the investigation “on political grounds, not legal grounds.”
In the April 11 article, Gerstein wrote that “former prosecutors, investigators and defense attorneys generally agree that prosecution for classified information breaches is the exception rather than the rule, with criminal charges being reserved for cases the government views as the most egregious or flagrant.” Moreover, Gerstein highlighted interagency disputes over what is considered classified in Clinton’s emails. He noted that the State Department “has publicly disputed some of the intelligence community’s claims that information in Clinton’s account was highly sensitive,” and that it “seems doubtful that prosecutors would pursue charges if State Department officials are likely to contradict an intelligence agency’s assessment about the sensitivity of the records.” From the April 11 article:
It’s the most explosive question of the 2016 presidential campaign: Could Hillary Clinton get indicted for her handling of sensitive materials through her home email server?
A POLITICO review of dozens of recent federal investigations for mishandling of classified records suggests that it’s highly unlikely — but not impossible.
The examination, which included cases spanning the past two decades, found some with parallels to Clinton’s use of a private server for her emails, but — in nearly all instances that were prosecuted —aggravating circumstances that don’t appear to be present in Clinton’s case.
The relatively few cases that drew prosecution almost always involved a deliberate intent to violate classification rules as well as some add-on element: An FBI agent who took home highly sensitive agency records while having an affair with a Chinese agent; a Boeing engineer who brought home 2000 classified documents and whose travel to Israel raised suspicions; a National Security Agency official who removed boxes of classified documents and also lied on a job application form.
Clinton herself, gearing up for her FBI testimony, said last week that a prosecution is “not gonna happen.” And former prosecutors, investigators and defense attorneys generally agree that prosecution for classified information breaches is the exception rather than the rule, with criminal charges being reserved for cases the government views as the most egregious or flagrant.
In addition, attorneys noted that mishandling of diplomatic information that doesn’t have an obvious national security component to it probably couldn’t be prosecuted under the Espionage Act, which is the felony statute most widely cited in discussions of the potential legal fallout of the Clinton email flap.
So, the real focus is likely to be a narrower set of messages: 65 deemed “Secret” and 22 deemed “Top Secret.” Because of the nature of email, the actual amount of highly sensitive information is more limited than those numbers suggest. The 22 “Top Secret” messages consist of seven “threads,” presumably with the same classified subject matter discussed in each email in the thread.
Using some of those exchanges to build a criminal case would also run into another challenge: the State Department has publicly disputed some of the intelligence community’s claims that information in Clinton’s account was highly sensitive. It seems doubtful that prosecutors would pursue charges if State Department officials are likely to contradict an intelligence agency’s assessment about the sensitivity of the records.
However, some experts on national security law said Clinton’s intent is far more important than the volume of emails at issue or how long they spent on her server. They noted that none of the information was marked classified and that there’s no indication she was trying to send classified information to anyone not authorized to look at it.
“The law treats the intentional disclosure of one piece of classified information to someone not entitled to receive it far more seriously than the accidental communication of dozens of pieces of classified information to people who were not supposed to get it,” American University law professor Stephen Vladeck said, citing explicit and implicit requirements that a person charged with violating the laws relating to classified information know that the information they mishandled was classified.
Several experts told POLITICO that in light of the legal obstacles to a case and the Justice Department’s track record in such prosecutions they are confident Clinton won’t face charges.
“Based on everything I’ve seen in the public media, not only don’t I see the basis for criminal prosecution, I don’t even see the basis for administrative action such as revoking a clearance or suspending it,” said Leonard, the former director of the Information Security Oversight Office.
“Looked at as a potential criminal case, this would be laughed out of court,” said William Jeffress, a Washington attorney on the defense team for former Bush White House aide Scooter Libby during his trial for lying in a leak investigation. “There hasn’t been any case remotely approaching a situation where someone received emails that were not marked classified, who simply receives them and maybe replies to them and a criminal prosecution is brought,” Jeffress said.