How Hillary Clinton Could Be Targeted Under The Espionage Act

03/10/2015 03:16 pm ET | Updated Mar 11, 2015

NEW YORK -- Hillary Clinton on Tuesday defended her exclusive use of a private email system while she was secretary of state, saying she had opted for "convenience."

"I thought it would be easier to carry just one device for my work and for my personal emails instead of two. Looking back, it would have been better if I'd simply used a second account and carried a second phone," Clinton said. "I thought using one device would be simpler, and obviously, it hasn't worked out that way."

The New York Times revealed last week that Clinton used only a private email address while at the State Department, and that she did not initially provide those records to the government, in possible violation of the Federal Records Act.

Speaking to a pack of about 100 journalists outside the United Nations Security Council on Tuesday, Clinton stressed that she went "above and beyond" State Department requirements for preserving her work-related emails. As for personal emails she sent from the account, Clinton said they dealt with family matters like planning her daughter's wedding and her mother's funeral, adding, "nobody wants personal emails made public."

Clinton belatedly provided some 55,000 pages of email to the State Department about two months ago, and tweeted last week that she was urging officials to make the documents public. The State Department announced Tuesday that it would post Clinton’s emails on a website after reviewing them, a process that could take months.

So far, that has not satisfied critics such as Rep. Trey Gowdy (R-S.C.), the chairman of the House Select Committee on Benghazi, who said there appear to be large gaps in what she surrendered. Gowdy said in a statement Tuesday that Clinton's press conference raised "more questions than answers," and called on her to testify before his committee.

A fact sheet released by her office later said that she used other, secure means to communicate on classified matters, and that she only ever emailed one foreign official in the United Kingdom.

It remains to be seen whether Clinton could be found to have violated the Espionage Act, a law that the Obama administration has used repeatedly against whistleblowers. The relevant section of the law says that it is a crime to retain classified material. Clinton, for her part, said Tuesday that she did not send classified information from the personal address, and that the server she used was protected by the secret service and suffered no security breaches.

The Justice Department leveled just that charge against NSA whistleblower Thomas Drake and James Hitselberger, a former Navy linguist who sent classified documents to an archive at the Hoover Institution. Former Los Alamos scientist Wen Ho Lee also was infamously charged with 10 counts of retaining classified data for storing information on tapes.

There are two big hurdles to making such a determination in Clinton's case, said Steven Aftergood, who heads the Federation of Americans Scientists' Project on Government Secrecy. Officials have said it does not appear as if Clinton discussed classified matters over email, and the secretary of state has broad latitude to decide what is classified.

"Any email that the secretary of state sends is at least sensitive, and would be of interest to many foreign intelligence agencies, but that's not the same as it's classified or that mishandling is punishable under the Espionage Act," Aftergood said.

That would make Clinton's case different from that of former Gen. David Petraeus, who handed obviously secret material to his biographer, and recently pleaded guilty to a misdemeanor count of mishandling classified information.

Aftergood thought there was "zero chance" that Clinton would face a prosecutor based on what is currently known, but he allowed that it was possible if the material is later determined to be classified.

"I think there's a question about how the selection of emails was made for transferring to the State Department, and what might not have been transferred," he said. "I think we shouldn't be asked to trust Secretary Clinton when the whole arrangement is so irregular."

He thought there was a greater chance of Clinton running afoul of the Federal Records Act, although that rarely results in punishment.

"Even if it is permissible to use private email from time to time, the records themselves are supposed to be transferred to government control, and that was not done," Aftergood said.

A lawyer who represented Drake saw little difference between the Espionage Act case against him and what Clinton appears to have done, especially if any of her communications could be deemed to be classified.

"Technically she should be vulnerable to the same Espionage Act charges as Tom," said Jesselyn Radack, an attorney with the Government Accountability Project.

She thought Clinton would never face prosecution, not because she hasn't overstepped, but because she's an exalted political figure, unlike the individuals who have been targeted in leak probes.

"Prosecutors have enormous discretion and, as we've seen from the General Petraeus case, political elites disclosing classified information are not subject to the same draconian laws as whistleblowers," she said.

Since Clinton never did turn over all of her communications, and only her staffers were involved in deciding what material to give to the government, it may be impossible to ever tell if she broke the law.

"We ought to know, and as long as we don't know either way, then there's going to be some lingering doubt," Aftergood said.

Indeed, Gowdy insisted that a third party should be involved to try and erase any lingering doubt.

"I see no choice but for Secretary Clinton to turn her server over to a neutral, detached third-party arbiter who can determine which documents should be public and which should remain private," Gowdy said. "Secretary Clinton alone created this predicament, but she alone does not get to determine its outcome."

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