Clinton’s Email Habits: Careless or Criminal? – New York Times

Go After Her at the Ballot Box, Not on Criminal Charges


Despite rightly noting that it is dicey to make legal judgments based on press reports, Andy does just that, concluding that, based on her conduct and public statements, Hillary Clinton, as secretary of state, “transferred the classified information” on State Department servers “to a private maintenance company and to lawyers not authorized to have it,” and thereby likely committed a felony.

I assume the felony to which Andy is referring is 18 U.S.C. § 793(d), part of the antiquated Espionage Act of 1917, which makes it a crime if an individual in lawful possession of classified information (as Secretary Clinton surely was) “willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted … the same to any person not entitled to receive it.” Not only is it unclear, as I explained in my opening comment, whether the top-secret information at issue was properly classified at the time (and was known to be so by Secretary Clinton), but it’s also unclear whether any of the emails were to individuals “not entitled to receive it,” as opposed to colleagues with the requisite security clearances. Nor is there any indication that any employee of the private company that maintained the server had access to any of the emails, let alone those containing information that was classified at that time — or, again, that Secretary Clinton was aware of such access.

Andy nevertheless suggests that these laws are “prosecution-friendly,” and, at least as they are written, he’s correct. But the practical and constitutional problems with the Espionage Act have been long- and well-documented, all the more reason why they have never been pushed to their textual limits.

Those who dislike Secretary Clinton and/or her politics may see this as a good opportunity to reverse that trend, but, as I suggested earlier, such an approach would attempt to criminalize entirely benign conduct that senior executive branch officials engage in on a routine basis. As significantly, pursuing criminal charges in this case, at least based on what we know today, would conflate Secretary Clinton’s careless email habits with the far more deliberate and willful mishandling of classified information by individuals like Sandy Berger, John Deutch and David Petraeus (who intentionally did share classified information with someone not entitled to have it).

In this day and age, it is easy to rush to judgment, especially against an individual to whose politics one objects. But if there is a real culprit here, it appears to be our labyrinthine, overbroad and preposterously unaccountable classification system, and not Secretary Clinton’s emailing habits. Absent evidence of far more nefarious conduct, her enemies will have to beat her the old-fashioned way — at the ballot box.


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