Hillary's email legal peril: 'Gross negligence' under terms of 'Espionage Act'

According to leaks from the FBI investigation of Hillary Clinton’s homebrew email server, she could be in deep legal peril, on charges that sound absolutely terrible for someone seeking the office of commander in chief.  The reliable, smart, and well-connected Catherin Herridge of Fox News reports:

Three months after Hillary Clinton’s use of a private email address and server while secretary of state was referred to the FBI, an intelligence source familiar with the investigation tells Fox News that the team is now focused on whether there were violations of an Espionage Act subsection pertaining to "gross negligence" in the safekeeping of national defense information.

Under 18 USC 793 subsection F, the information does not have to be classified to count as a violation. The intelligence source, who spoke on the condition of anonymity citing the sensitivity of the ongoing probe, said the subsection requires the "lawful possession" of national defense information by a security clearance holder who "through gross negligence," such as the use of an unsecure computer network, permits the material to be removed or abstracted from its proper, secure location.

Subsection F also requires the clearance holder "to make prompt report of such loss, theft, abstraction, or destruction to his superior officer. "A failure to do so "shall be fined under this title or imprisoned not more than ten years, or both."

The source said investigators are also focused on possible obstruction of justice. "If someone knows there is an ongoing investigation and takes action to impede an investigation, for example destruction of documents or threatening of witnesses, that could be a separate charge but still remain under a single case," the source said. Currently, the ongoing investigation is led by the Washington Field Office of the FBI.

As Paul Mirengoff of Powerline comments:

That sounds a lot like what Hillary Clinton did.

It seems beyond dispute that Hillary had possession or control of documents relating to the national defense. Indeed, some of her documents have been designated as “originally classified” which means, by definition, that their disclosure “reasonably could be expected to cause damage to the national security.”

In addition, the case seems strong that Clinton removed such information from its proper place of custody and/or delivered it to someone in violation of her trust. I would argue that having information relating to the national defense on a private server constitutes removing it from its proper place of custody.

Furthermore, Clinton apparently delivered national defense information to Sidney Blumenthal, who lacked a security clearance, thereby violating her trust. One example is a November 10, 2011 email exchange between Blumenthal and Clinton in which “the Blair option” (having to do with the Israel-Palestine “peace process,” I assume) was discussed. The document is “originally classified,” which means, by definition, that it contains information “the unauthorized disclosure of which could be expected to cause damage to the national security.”

It also seems to me (as it apparently does to Fox News’ source) that it was gross negligence for Clinton to set up the arrangement whereby national defense information ended up on her private email server. That Clinton was aware of the risks involved is clear from her warnings to State Department employees about the risk posed by hackers.

The questions facing us now are: 1) Will the FBI refer the case to the DoJ for prosecution?  If not, will there be resignations or other public protests?  Will the Benghazi Special Committee subpoena FBI files in that instance?  And 2) Will the DoJ  follow a referral with an indictment?  The same follow-up questions apply.

The very fact that these specifics were leaked to Fox News from the usually tight-lipped FBI is worrisome, implying that there is worry that the whole thing may be dropped.  James Comey, the FBI head, enjoys a fine reputation in the media for standing up to political superiors.  But that dates back to the Bush administration, when he was head of the New York FBI Office.  Whether or not the same independence applies to the Obama administration is an open question in my mind.

It is pretty clear that a vast alliance for force wants Hillary Clinton to be the next president.  I suspect that a subterranean battle is underway over whether or not to charge her.

According to leaks from the FBI investigation of Hillary Clinton’s homebrew email server, she could be in deep legal peril, on charges that sound absolutely terrible for someone seeking the office of commander in chief.  The reliable, smart, and well-connected Catherin Herridge of Fox News reports:

Three months after Hillary Clinton’s use of a private email address and server while secretary of state was referred to the FBI, an intelligence source familiar with the investigation tells Fox News that the team is now focused on whether there were violations of an Espionage Act subsection pertaining to "gross negligence" in the safekeeping of national defense information.

Under 18 USC 793 subsection F, the information does not have to be classified to count as a violation. The intelligence source, who spoke on the condition of anonymity citing the sensitivity of the ongoing probe, said the subsection requires the "lawful possession" of national defense information by a security clearance holder who "through gross negligence," such as the use of an unsecure computer network, permits the material to be removed or abstracted from its proper, secure location.

Subsection F also requires the clearance holder "to make prompt report of such loss, theft, abstraction, or destruction to his superior officer. "A failure to do so "shall be fined under this title or imprisoned not more than ten years, or both."

The source said investigators are also focused on possible obstruction of justice. "If someone knows there is an ongoing investigation and takes action to impede an investigation, for example destruction of documents or threatening of witnesses, that could be a separate charge but still remain under a single case," the source said. Currently, the ongoing investigation is led by the Washington Field Office of the FBI.

As Paul Mirengoff of Powerline comments:

That sounds a lot like what Hillary Clinton did.

It seems beyond dispute that Hillary had possession or control of documents relating to the national defense. Indeed, some of her documents have been designated as “originally classified” which means, by definition, that their disclosure “reasonably could be expected to cause damage to the national security.”

In addition, the case seems strong that Clinton removed such information from its proper place of custody and/or delivered it to someone in violation of her trust. I would argue that having information relating to the national defense on a private server constitutes removing it from its proper place of custody.

Furthermore, Clinton apparently delivered national defense information to Sidney Blumenthal, who lacked a security clearance, thereby violating her trust. One example is a November 10, 2011 email exchange between Blumenthal and Clinton in which “the Blair option” (having to do with the Israel-Palestine “peace process,” I assume) was discussed. The document is “originally classified,” which means, by definition, that it contains information “the unauthorized disclosure of which could be expected to cause damage to the national security.”

It also seems to me (as it apparently does to Fox News’ source) that it was gross negligence for Clinton to set up the arrangement whereby national defense information ended up on her private email server. That Clinton was aware of the risks involved is clear from her warnings to State Department employees about the risk posed by hackers.

The questions facing us now are: 1) Will the FBI refer the case to the DoJ for prosecution?  If not, will there be resignations or other public protests?  Will the Benghazi Special Committee subpoena FBI files in that instance?  And 2) Will the DoJ  follow a referral with an indictment?  The same follow-up questions apply.

The very fact that these specifics were leaked to Fox News from the usually tight-lipped FBI is worrisome, implying that there is worry that the whole thing may be dropped.  James Comey, the FBI head, enjoys a fine reputation in the media for standing up to political superiors.  But that dates back to the Bush administration, when he was head of the New York FBI Office.  Whether or not the same independence applies to the Obama administration is an open question in my mind.

It is pretty clear that a vast alliance for force wants Hillary Clinton to be the next president.  I suspect that a subterranean battle is underway over whether or not to charge her.