It’s the most explosive question of the 2016 presidential campaign: Could Hillary Clinton get indicted for her handling of sensitive materials through her home email server?

A POLITICO review of dozens of recent federal investigations for mishandling of classified records suggests that it’s highly unlikely — but not impossible.


The examination, which included cases spanning the past two decades, found some with parallels to Clinton’s use of a private server for her emails, but — in nearly all instances that were prosecuted — aggravating circumstances that don’t appear to be present in Clinton’s case.

The relatively few cases that drew prosecution almost always involved a deliberate intent to violate classification rules as well as some add-on element: An FBI agent who took home highly sensitive agency records while having an affair with a Chinese agent; a Boeing engineer who brought home 2000 classified documents and whose travel to Israel raised suspicions; a National Security Agency official who removed boxes of classified documents and also lied on a job application form.

Clinton herself, gearing up for her FBI testimony, said last week that a prosecution is “not gonna happen.” And former prosecutors, investigators and defense attorneys generally agree that prosecution for classified information breaches is the exception rather than the rule, with criminal charges being reserved for cases the government views as the most egregious or flagrant.

“They always involve some ‘plus’ factor. Sometimes that ‘plus’ factor may reach its way into the public record, but more likely it won’t,” one former federal prosecutor said.

A former senior FBI official told POLITICO that when it comes to mishandling of classified information the Justice Department has traditionally turned down prosecution of all but the most clear-cut cases.

“If you look at the history of what they pursued, you really had to have a slam-bam case that met all the elements,” said the ex-official, who asked not to be named.

Statistics support the view that prosecutions in the area are sparing.

Between 2011 and 2015, federal prosecutors disposed of 30 referrals from investigators in cases where the main proposed charge was misdemeanor mishandling of classified information, according to data obtained from the Justice Department by the Transactional Records Access Clearinghouse. Prosecution was declined in 80 percent of those cases. Of the six where charges were filed, all the defendants apparently pled guilty, the data show.

The cases indicate that a strong dose of prosecutorial discretion is involved, partly because the laws on mishandling classified information are written broadly.

The Espionage Act makes it a felony punishable by up to ten years in prison to cause sensitive national security information to “be removed from its proper place of custody” as a result of “gross negligence.” Another law makes it a misdemeanor to remove classified “documents or material without authority and with the intent to retain such documents or materials at an unauthorized location.” Still another makes it a felony to conceal or remove official federal government records.

With such expansively written statutes, lawyers who’ve handled such cases say a better way to gauge the chance of criminal charges in the Clinton email case is to look at who has — and-hasn’t — faced such charges in recent decades.

Most of the cases involve little-known former military service members or government contractors for intelligence agencies. Only a few prosecutions grab headlines, like those of former CIA Director David Petraeus and former National Security Adviser Sandy Berger.

Clinton’s situation has already drawn comparisons to those high-profile cases, but there are important differences.

Without having permission to do so, Petraeus kept in his Arlington, Va. home eight “black books” containing highly classified “Top Secret/Codeword” information from his tenure as the coalition commander in Afghanistan and knowingly shared those books with his biographer, Paula Broadwell. In an interview with FBI agents, he acknowledged having an affair with Broadwell, but falsely stated that he’d never shared classified information with her.

Petraeus’s admission to Broadwell, in a recording, that he knew information in the books was top secret, and his lying to officials, are significant points of differentiation with the Clinton case.

As for Berger, he apparently was pressed for time when reviewing “Top Secret” information being considered by the 9/11 Commission, and walked out of National Archives headquarters in Washington with classified documents and notes stuffed in his clothing. He eventually admitted to the FBI sticking some of the documents under a construction trailer on the street before returning to the Archives and slipping out with more. Berger, who died earlier this year, took the papers to his office and destroyed some of them, but eventually returned others.

Both Petraeus and Berger pled guilty to misdemeanor mishandling of classified information and received two years of probation. Petraeus was fined $100,000, while Berger paid a $50,000 fine. Under the statute, they could have received up to one year in jail.

Former New York Mayor Rudy Giuliani, who has publicly called for Clinton to be prosecuted, said her actions are more troubling than the Petraeus or Berger cases because of the sheer volume of classified material involved: More than 2,100 emails on her server are now considered classified by the State Department or other agencies.

“It is massive. It was a plan,” said Giuliani, who also served as the U.S. Attorney in Manhattan and as a top Justice Department official. “She didn’t just accidentally take it home…She took it home every night. It was like you were taking home top-secret information every night and putting it on your nightstand.”

But only about 100 of those 2100 messages were sent or forwarded by Clinton, and in many cases the information deemed classified originated with her aides or lower-level personnel. Clinton and her campaign team dispute the idea that any of the emails should be classified and have urged that those messages be released to the public, so others can judge whether any involved actual secrets. None of the messages were marked classified at the time.

Of those subsequently marked as classified, more than 96 percent have been marked “Confidential,” because they contain diplomatic exchanges or information about foreign governments. Many of those messages had already been shared on other unclassified systems, including within the State Department.

Some current and former State Department officials have argued that information about foreign governments’ positions on various issues are the bread and butter of diplomacy, and that State couldn’t function without at least some discussion of those views in unclassified channels.

In addition, some former diplomats and experts on classification procedures maintain that in practice the “Confidential” stamp has become a way for State to prevent disclosure of foreign government information after it is requested under the Freedom of Information Act, even though little effort is made to classify the information at the time it is being circulated by U.S. officials.

“In a quantum mechanical way, asking for disclosure forces it to be either classified or unclassified,” said the Federation of American Scientists’ Steven Aftergood, a longtime scholar of classification policy. He also said that classifying most or all diplomatic exchanges could upend the State Department’s day-to-day operations.

“If you consider the business of the State Department is foreign diplomacy….if everything that concerns foreign government information were to be classified then, arguably, the majority of State Department emails should be,” Aftergood said.

Asked about the presence of such information in unclassified accounts, one former federal prosecutor said: “If that is, in fact, a basis for criminal prosecution then the State Department should shut down its email system.”

Lawyers say the broad circulation of the information State now says is classified points to another potential problem with prosecuting Clinton: the question of how many others would or should be charged in such a case. Almost all of the now-classified messages on her account were sent by other State officials. Should they be prosecuted? What about those who didn’t send her such information but wound up with that information in their work accounts and even personal ones investigators are now combing through?

“On the theory people are putting forward for making this criminal, every single one of those people [who sent a classified message on an unclassified system] is equally guilty, probably more guilty” than Clinton, the ex-prosecutor said. “People three or four levels down, closer to the information, presumably had greater reason to know if it contained classified information … It would make no sense to aim your fire at the person at the end of the chain, instead of at the beginning of the chain.”

In addition, attorneys noted that mishandling of diplomatic information that doesn’t have an obvious national security component to it probably couldn’t be prosecuted under the Espionage Act, which is the felony statute most widely cited in discussions of the potential legal fallout of the Clinton email flap.

So, the real focus is likely to be a narrower set of messages: 65 deemed “Secret” and 22 deemed “Top Secret.” Because of the nature of email, the actual amount of highly sensitive information is more limited than those numbers suggest. The 22 “Top Secret” messages consist of seven “threads,” presumably with the same classified subject matter discussed in each email in the thread.

Using some of those exchanges to build a criminal case would also run into another challenge: the State Department has publicly disputed some of the intelligence community’s claims that information in Clinton’s account was highly sensitive. It seems doubtful that prosecutors would pursue charges if State Department officials are likely to contradict an intelligence agency’s assessment about the sensitivity of the records.

In his interview with POLITICO, Giuliani contended that Clinton’s server was a more serious breach than the one Petraeus committed because her actions continued over years and made the records vulnerable to being obtained by spies or terrorists. “This woman was displaying it for the world,” he said.

However, some experts on national security law said Clinton’s intent is far more important than the volume of emails at issue or how long they spent on her server. They noted that none of the information was marked classified and that there’s no indication she was trying to send classified information to anyone not authorized to look at it.

“The law treats the intentional disclosure of one piece of classified information to someone not entitled to receive it far more seriously than the accidental communication of dozens of pieces of classified information to people who were not supposed to get it,” American University law professor Stephen Vladeck said, citing explicit and implicit requirements that a person charged with violating the laws relating to classified information know that the information they mishandled was classified.

It’s also unclear whether the information was less secure on Clinton’s home server than on the State Department’s unclassified email system used to send most of the now-classified messages to her in the first place. State’s system was an obvious target and has been repeatedly broken into by the Russian government, U.S. officials have said.

“We know for a fact there was a compromise of State’s unclassified server,” said Aftergood. “Did [Clinton] exacerbate that threat by her use of a private server? Possibly, but we really don’t know.”

Another attempted prosecution of a high-level official, former Director of Central Intelligence John Deutch, produced a more ambiguous result than the Petraeus or Berger cases.

Deutch was found to have had more than 70 classified documents or fragments thereof on unclassified digital media cards and computers used at his homes in Maryland and Massachusetts. Fourteen had classification markings. At least seven of Deutch’s memos to President Bill Clinton were found, some containing “Top Secret/Codeword” classified information.

Deutch agreed to plead guilty to a single misdemeanor count of mishandling classified information, but on President Bill Clinton’s last day in office in 2001 he pardoned Deutch before the legal papers offering the plea were filed with the court.

“The Deutch case was quite a bit more egregious in terms of, by day, he would approve covert ops and this and that and at night go home and write a diary, a detailed recitation of his day, to include covert programs and the identity of covert operatives,” said Bill Leonard, former director of the federal Information Security and Oversight Office, a clearinghouse for classification standards and disputes in the U.S. Government. “He was actually creating these documents.”

Not every instance of mishandling of classified information by a top-ranking government official that is investigated leads to prosecution. Far from it. Most such probes never come to light, but some that have could reveal guideposts for the Clinton case.

Former Attorney General Alberto Gonzales took home “Top Secret” notes on the Bush Administration’s warrantless wiretapping program and later stored those notes and more than a dozen other highly classified documents in his office safe even though it was not authorized to contain such secrets. Justice Department prosecutors turned down the case.

John O’Neill, a veteran FBI official credited with being focused before September 11, 2001 on the threat posed by Al Qaeda, left a briefcase in a Tampa hotel conference room in 2000 containing very sensitive, classified information (including e-mails) about counterintelligence and anti-terror operations in the New York area. The briefcase was found a few hours later in another hotel, with some items missing but the classified papers intact.

Prosecutors also declined to prosecute O’Neill, but he quit the bureau before it could decide what discipline to impose for the incident. He took a new job managing security at the World Trade Center, where he was killed in the September 11, 2001, attacks.

At the tail end of Bill Clinton’s Administration, the State Department cracked down on security violations after someone stole a laptop containing “Top Secret” arms-control-related information off a conference room table there. The tightening of security procedures led to the public suspension of security clearances for U.S. Ambassador to Israel Martin Indyk for storing classified information on an unclassified laptop, using that computer on airplanes and taking classified papers home. His clearances were later restored. No charges were brought.

There are, however, also a slew of cases that led to prosecutions of mid-level and low-ranking government personnel, as well as government contractors.

But some of those felony charges for grossly negligent handling or removal of classified information appear to have been pursued in cases where the government strongly suspected espionage or deliberate leaking of classified information had occurred, but decided a full-blown prosecution on those grounds wasn’t warranted.

In such cases, “a criminal prosecution for mishandling classified would be used as a means to another end,” Leonard said. “The intent is not necessarily to punish the mishandling but is….like the proverbial example of going after Al Capone for income tax evasion.”

Former FBI agent J.J. Smith was charged with five felonies, including grossly negligent mishandling of classified information for allowing an FBI informant to obtain highly sensitive bureau information. Smith was having an affair with the informant, Katrina Leung, who was also working for Chinese intelligence. Leung wound up with several FBI documents including a “Secret” memo on Chinese fugitives and an unclassified FBI phone directory. She said she regularly took documents from Smith’s briefcase, which he often left open when he visited her.

In a plea deal, Smith pleaded guilty to a single felony count of lying to investigators. He was sentenced to three months house arrest, three years probation and a $10,000 fine.

A former senior State Department official, Don Keyser, pled guilty in 2005 to felony charges of removing government records as well as lying to investigators and lying on a Customs Declaration. A search found 3,659 classified documents at Keyser’s home: 1,976 of them “Secret” and 28 “Top Secret,” as well as 28 floppy disks containing more “Secret” documents. Keyser’s wife said she alerted him to the presence of the classified materials but he apparently never sought to return them.

The removal-of-records charge Keyser admitted to is one some conservative lawyers have urged be leveled at Clinton. It does not require that the documents in question be classified.

However, the government’s reason for concern in Keyser’s case went beyond his storage of classified info at home: undercover FBI agents twice observed him in a car having what appeared to be intimate contact with a Taiwanese intelligence agent, Isabelle Cheng. The longtime diplomat also lied about his relationship with Cheng and took classified information on an unreported trip to Taiwan.

Keyser was ultimately sentenced to a year and a day in prison and a $25,000 fine. The lead prosecutor on the Keyser case, David Laufman, is now the head of the Justice Department’s counterintelligence section — the office believed to be overseeing the FBI probe into Clinton’s server.

There are also a handful of cases involving lower-level employees or contractors where prosecutors have pursued criminal charges or jail time despite the lack of a clear public link to espionage, leaking or some other malfeasance.

A Boeing engineer who took home what prosecutors called “an adult giraffe” ’s-worth of sensitive information on missile defense programs, Abraham Lesnik, pled guilty in 2008 to a felony charge of unauthorized retention of classified data.

Lesnik’s travel and ties to Israel appear to have been a factor, but prosecutors said they had no evidence he planned to misuse the roughly 2000 classified documents, including about 400 marked top secret found on a thumb drive, laptop and other devices at his California home and in a storage locker.

Lesnik’s lawyer argued vehemently that no criminal charges should have been brought in the case. Prosecutors asked for a four-year prison sentence. A judge gave the scientist three years’ probation.

The toughest punishment handed down in recent memory for mishandling classified information went to former National Security Agency analyst Kenneth Ford Jr., who was sentenced in 2006 to six years in prison for taking to his home two boxes of classified documents and other records from NSA headquarters in Maryland. He was also convicted of lying on a job application form.

A contract linguist working for the Navy in Bahrain, James Hitselberger, was hit with six felony charges after being seen taking classified printouts to his room and cutting the headings off classified records. Hitselberger appears to have fueled investigators’ suspicions by sending some classified records to archives at Stanford University’s Hoover Institution and by disappearing in Europe after being dismissed from his job in the Persian Gulf.

In a plea deal, Hitselberger pled guilty to misdemeanor mishandling of classified records. He was sentenced to time served: two months in jail and eight months on house arrest.

Some have compared Hitselberger cutting headings off the classified documents to a message Clinton sent to a top aide in June 2011, telling him to work around a broken secure fax machine by editing a classified ‘talking points’ document and sending it over ordinary email.

“If they can't, turn into nonpaper [with] no identifying heading and send nonsecure," Clinton wrote.

State Department officials have said there’s no evidence the aide, Jake Sullivan, ever sent the talking points via email. Republicans said the episode showed Clinton’s disregard for the security of classified information, but other former officials said the incident was benign and that anonymizing information is a routine way of handling such information in unclassified channels.

The Justice Department’s approach to classified information cases raises the stakes for Clinton’s interview with the FBI, which is expected to occur in the coming weeks. While mishandling classified information has not proven to be a reliable way to get charged with a crime, lying to the FBI about it, or trying to cover your tracks, is.

Many experts believe Petraeus would have escaped criminal charges but for the false statements to the FBI, which may have tipped the case towards prosecution.

Just last year, former Naval Reserve Commander Bryan Nishimura was charged with misdemeanor mishandling of classified information he acquired during his service in Afghanistan. He admitted that he often moved classified data, including satellite imagery, to unclassified systems and brought it back to the U.S. when he returned.

After coming under investigation, Nishimura threw some of the storage media in a Folsom, Calif. lake. He was sentenced to two years probation and a $7,500 fine.

Giuliani said the way Clinton disposed of many of her emails could similarly buttress a prosecution.

After hanging onto the messages for about two years after leaving office, Clinton returned 30,000 messages at State’s request, but her aides erased another 32,000 that were deemed personal.

“When somebody destroyed something, that’s a very powerful piece of evidence to put in front of a jury,” said Giuliani.

The FBI has reportedly recovered many of those erased messages, but even if they contain a smoking gun, using that against Clinton would be legally challenging, since her attorneys performed the sorting and separation of the emails.

There appears to be little public data on how classified information breaches are treated across the government, but the Keyser case allowed a glimpse into how Clinton’s former agency handled such allegations.

In a 2006 filing in that case, a union official said the State Department considered disciplinary action of foreign service officers for security violations or infractions in 170 cases from 2002 to 2004. Many got a letter of reprimand or admonishment, while a few were suspended from work for a few days. (A few were also recorded as receiving reprimands for “misuse of E-mail system.”)

The most serious punishment for security violations during that three-year period was firing, said Sharon Papp, general counsel of the American Foreign Service Association.

“Although, at the discretion of the State Department, some of these cases were referred to the Department of Justice, I do not know of a single State Department employee criminally prosecuted in a security violation or security revocation case,” Papp wrote in a declaration submitted by Keyser’s defense. “I am aware of no case in which a State Department employee who took classified material from its proper location [but did not disclose it improperly]… has been prosecuted.”

Several experts told POLITICO that in light of the legal obstacles to a case and the Justice Department’s track record in such prosecutions they are confident Clinton won’t face charges.

“Based on everything I’ve seen in the public media, not only don’t I see the basis for criminal prosecution, I don’t even see the basis for administrative action such as revoking a clearance or suspending it,” said Leonard, the former director of the Information Security Oversight Office.

“Looked at as a potential criminal case, this would be laughed out of court,” said William Jeffress, a Washington attorney on the defense team for former Bush White House aide Scooter Libby during his trial for lying in a leak investigation. “There hasn’t been any case remotely approaching a situation where someone received emails that were not marked classified, who simply receives them and maybe replies to them and a criminal prosecution is brought,” Jeffress said.

Giuliani conceded that most mishandling of classified information never leads to criminal charges. He even said he thought some of his deputies while he was U.S. Attorney may have broken the rules on occasion.

“I’m sure we had situations when I was associate attorney general or U.S. Attorney where some FBI agent, Assistant US Attorney, or Assistant Attorney General took confidential material home with him,” Giuliani said. “Of course, we weren’t prosecuting if that happened one time or two times,” Giuliani added.

However, Giuliani said Clinton deserves to be indicted and he believes the case would be a winner in the courtroom.

“It’s a tough decision, politically, but legally, I think it’s not: If Hillary Clinton was not running for president, she’d have been indicted by now,” Giuliani said. “I’d love to try this case.”