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

Dan Abrams is ABC News' legal analyst. This article originally appeared on his new law and crime site LawNewz.com. Opinions expressed below are solely those of the author.

In late January, I penned a piece here pronouncing that Hillary Clinton should not be charged with a federal crime over her use of a private email server while she was secretary of state … at least based on everything we knew at the time. Since then, we have learned more about the investigation and the 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.

Let's 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 their campaigns, 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.

"Wrong" doesn’t necessarily mean "illegal" and in this case, that remains the critical distinction many seem to want to ignore.

The Facts

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 former Secretary of State Colin Powell and former Secretary of State Condoleezza Rice's staffers not only used personal email accounts but received material later deemed classified. 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. Clinton was also the only secretary of state not to use an @state.gov email account at all.

Furthermore, we have learned that the NSA specifically expressed concerns about the use of her BlackBerry and that 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 committed 15 criminal violations 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 Dianne 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 doing so 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, or 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 — in this case ranging from allegations of making false statements to accusations related to the Clinton Foundation. But at this point, there is simply no evidence (that we know of) to support any of these other theoretical crimes.

Government Procedural Rules

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" that 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.

Conclusion

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 suggest 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 longstanding distrust, or even hatred of 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.