University of Michigan Professor of Law and Sociology and former Department of Homeland Security classification expert Richard Lempert debunked common right-wing talking points about the FBI investigation into former Secretary of State Hillary Clinton's use of a personal server for government emails to explain why Clinton “won't be indicted and shouldn't be.”
Right-wing media have hyped the idea of an imminent criminal indictment over Hillary Clinton's use of a private email server despite experts consistently debunking claims that Clinton violated the law. In a March piece for American Prospect, Lempert wrote that Clinton's email use did not constitute criminal conduct, noting that relevant law says one must "knowingly and willfully" disclose “certain categories of classified information” to violate the statutes regarding the disclosure of classified information. Lempert explained that Clinton “would have had to know she was dealing with classified information, and either that she was disclosing it to people who could not be trusted to protect the interests of the United States.” He also noted that heads of agencies, such as Secretary of State, “have considerable authority with respect to classified information,” including declassifying material their agency has classified (emphasis original):
What constitutes criminal conduct with respect to the disclosure of classified information?
Relevant law is found in several statutes. To begin with, 18 USC, Section 798 provides in salient part: “Whoever knowingly and willfully ... [discloses] or uses in any manner prejudicial to the safety and interest of the United States [certain categories of classified information] ... shall be fined ... or imprisoned.”
The most important words in this statute are the ones I have italicized. To violate this statute, Secretary Clinton would have had to know that she was dealing with classified information, and either that she was disclosing it to people who could not be trusted to protect the interests of the United States or that she was handling it in a way (e.g. by not keeping it adequately secure) that was at least arguably prejudicial to the safety or interest of the United States.
Heads of agencies have considerable authority with respect to classified information, including authority to approve some exceptions to rules regarding how classified information should be handled and authority to declassify material their agency has classified.
Lempert also debunked a common Fox News talking point that some communications are “automatically classified.” These falsehoods have been used to imply that Clinton's emails were “indisputably classified” even if not marked. Lempert wrote that under U.S. law, classified information must be classified "at the time of a violation" and "specifically designated by a United States Government Agency." This suggests that retroactive, or “post hoc classification, which seems to characterize most of the classified material found on Clinton's server, cannot support an indictment.” He also noted that information “does not classify itself; it must be officially and specifically designated as such” (emphasis original):
Statute [18 USC, Section 798] also provides a definition of what constitutes classified information within the meaning of the subsection described above: "[C]lassified information, means information which, at the time of a violation of this section, is specifically designated by a United States Government Agency for ... restricted dissemination."
Again, the most important words are the ones I have italicized. First, they indicate that the material must have been classified at the time of disclosure. Post hoc classification, which seems to characterize most of the classified material found on Clinton's server, cannot support an indictment under this section. Second, information no matter how obviously sensitive does not classify itself; it must be officially and specifically designated as such.
No matter how sensitive the information, if no one has taken steps to classify it, the rules for safeguarding classified information cannot be violated despite the harm that might be caused by disclosure. When documents are unmarked, it is difficult to prove that a person knew or should have known that what they were reading was classified.
Despite much fearmongering from conservative media, Lembert concluded that “based on what has been revealed so far, there is no reason to think that Clinton committed any crimes with respect to the use of her email server, including her handling of classified information” and that “Clinton's optimism that she will not be criminally charged appears justified” (emphasis original):
Should Clinton be indicted?
Based on what has been revealed so far, there is no reason to think that Clinton committed any crimes with respect to the use of her email server, including her handling of classified information. While it is always possible that information not revealed will change this picture, at the moment Clinton's optimism that she will not be criminally charged appears justified. The same is not necessarily true of those who sent her classified information. If it could be shown that they knowingly acquired information from classified sources and sent it unmarked to an unapproved server, their fate may be less kind than Clinton's is likely to be.