Matthew Whitaker

According to FBI Director James Comey’s statement on Tuesday, former secretary of State Hillary Clinton could have been charged with violating several different code sections, and he detailed the evidence that supports bringing criminal charges.

Yet, Director Comey’s judgment was that “no reasonable prosecutor” would bring the case. I disagree. I believe myself to have been a reasonable prosecutor, and when the facts and evidence show a criminal violation has been committed, the individuals involved should not dictate whether the case is prosecuted.

One statute that Secretary Clinton could be charged with violating is 18 U.S.C. section 793(f). Under this section, a prosecutor must prove that:

•The person had lawful possession of information relating to national defense.

•Through gross negligence that person permits that information to be removed from its proper place of custody (or given to someone else, or lost, or stolen).

Although it might be intuitive that a secretary of State lawfully possess information that relates to national defense, the facts laid out by Director Comey also establish that this is exactly the type of information in this case.

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Of the emails either turned over or recovered by the FBI, 110 contained information that was classified at the time it was sent or received, of which eight email chains contained information that was top secret at the time it was sent.

The facts also show it was gross negligence when she removed the information from State Department security. Secretary Clinton made the decision to use a personal email system, one that had inferior security to the State Department’s or even another commercial vendor’s email service.

A reasonable prosecutor may ask, if on numerous occasions, an unknown State Department employee had taken top secret information from a secured system, emailed that information on a Gmail account, and stored the information on a personal server for years, would that individual be prosecuted? I believe they would.

Matthew Whitaker, U.S. attorney 2004-09, is executive director of the Foundation for Accountability and Civic Trust.