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:









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.