Ronald J. Sievert

Since the beginning of the Clinton email scandal, the nation has been subjected to a political and criminal defense generated smokescreen. The Clinton campaign has attempted to make the public believe that she is not guilty of anything because the information on her very unprotected server was not “marked as classified” or “classified at the time.”

The applicable statute, 18 USC 793, however, does not even once mention the word “classified.” The focus is on “information respecting the national defense” that potentially “could be used to the injury of the United States or to the advantage of any foreign nation.” 793 (f) specifically makes it a crime for anyone “entrusted with … any document ... or information relating to the national defense … through gross negligence (to permit) the same to be removed from its proper place of custody.” A jury (not a Democrat or Republican political administration) is, of course, the best body to determine gross negligence on the facts of this case.

The courts have held repeatedly that “national defense information” includes closely held military, foreign policy and intelligence information and that evidence that the information is classified is not necessary for a prosecution. Evidence that the information was upon later review found to be classified, however, as is the case with approximately 2,000 Clinton messages, is of course one kind of proof that the information met the test of “national defense information” in the first place. (See U.S. v. Rosen and Weissman, 445 F. Supp. 2d 602 (E.D. Va. 2006) pertaining to a different provision but containing a good summary of law on national defense information and classified information.) The fact that the information does not have to be “marked classified” at the time only makes sense because sometimes, as in the case of the Clinton case and other 793 cases, the information is originated and distributed before any security officer can perform a review and put a classification mark on it.

So why has this not been discussed in the television and print media? Why has Clinton not been grilled by her interviewers as to whether her emails contained national defense information that could harm the U.S.? Why has everyone bought into the “marked classified” rabbit trail? One suspects that many reporters and commentators have not bothered to read the actual law or are hesitant to blow the central defense of the Clinton campaign out of the water.

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Regardless, I am not confident that the Justice Department will indict. It is true that part of the reason is that the political appointees who make the final decisions will at least unconsciously be searching for ways to evaluate the case in a way that would evade an obvious debacle for the Democratic Party.

But there is more to it. Spending 25 years as an attorney and supervisor in U.S. Attorney’s offices and working with Main Justice in Washington provides an understanding of the process. Main Justice has not always had a reputation for being strong and aggressive, especially in the face of an intimidating defense. What a DA will indict in a week, and a U.S. Attorney in a month, will take Justice more than a year if they ever pull the trigger at all. They tend to be hamstrung by endless memos, briefs, meetings and approvals from multiple levels and divisions. There sometimes appears to be an institutional fear of losing, however minimal the chance. This is an endemic characteristic of many bureaucracies. Unfortunately, it is likely that, at this very moment, many good lawyers at DOJ may be using all sorts of sophistry and rationalization to try to avoid applying the plain language of the law to Hilary Clinton. A jury, which should make the final decision, may never get the chance.

Ronald J. Sievert, a 25-year veteran of the Department of Justice, teaches national security and international law at the George H.W. Bush School of Government at Texas A&M University and the University of Texas School of Law.

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