Careless Maybe, But Not Criminal Before we rush to judgment on whether Secretary Clinton’s email practices broke the law, it is worth highlighting two features of contemporary classification law that may seem counterintuitive — but that underscore why her conduct may well have been careless, but likely wasn’t criminal. Secretary Clinton may well still deserve criticism for entrusting such sensitive matters to a private server, but there is a world of difference between criticism and criminal charges. First, classification is dynamic, not static. Thus the government routinely classifies information that had previously been in the public domain, or reclassifies information that had previously been declassified, without any warning or notice to interested parties. Indeed, federal law expressly authorizes the government to classify materials after it has received a Freedom of Information Act request for them — allowing the government to insulate national security secrets from disclosure both retroactively and reactively. In Secretary Clinton's case, then, the fact that some of the emails contained information that might be classified today does nothing to prove that the information was classified (and was known by her to be classified) at the time it was discussed over unsecured networks. Indeed, John Kirby, state department spokesman, all-but confirmed this understanding when he told the Associated Press: “The documents are being upgraded at the request of the intelligence community because they contain a category of top secret information.” If the relevant materials were classified in the first place, there would be no need to “upgrade” them. Second, we live in an age of pervasive overclassification — in which the government routinely classifies matter that, both practically and legally, ought not to be secret (such as the contents of mainstream newspapers and countless other streams of information in the public domain). Last week’s news reports suggest that at least one of the messages at issue contained information “from a published news article.” Whatever the causes of this disease, one of its many symptoms is the difficulties senior executive branch officials face, on a daily basis, simply knowing whether (and which) particular matters are or are not classified. It is, therefore, inevitable that mistakes will be made by even the most well-intentioned senior government officers — mistakes that federal criminal law was never meant to punish. Secretary Clinton may well still deserve criticism for entrusting such sensitive matters to a private server, but there is a world of difference between criticism and criminal charges.

Abundant Reasons to Believe There Was Serious Wrongdoing It is always dicey to make legal judgments based on press reports rather than an examination of concrete evidence. That said, Hillary Clinton could be in legal jeopardy for what appears to be mishandling of classified information by means of the private email system she improperly established for the conduct of her government business as secretary of state. Secretary Clinton systematically conducted official business on a private unsecure system, and had subordinates do likewise, knowing the nature of their duties made classified communications inevitable. Three factors support this conclusion. First, statements made by government officials, coupled with the state department’s redaction of hundreds of private emails, indicate that classified information was improperly communicated via the private email system. Recently, we learned that 22 emails contain such closely guarded secrets — potentially involving sensitive methods and sources of intelligence gathering — that no parts of those emails can be publicly disclosed without damaging national security. Second, Secretary Clinton’s public statements have shifted markedly. Initially, she maintained that no classified information had been communicated through her private system. This claim became untenable with the revelation that hundreds of her emails contained classified information (the current count exceeds 1,500). So Secretary Clinton adopted the similarly unsustainable position that this became classified only after she received it. Now, faced with the undeniable fact that much of the information was “born classified,” she claims that it was not “marked” classified, and that any mishandling may be the fault of underlings. These attempts to suggest she was unaware of any wrongdoing are likely unavailing. That is due to the third factor: The laws against mishandling classified information are prosecution-friendly. For example, it is a felony for one entrusted with classified information not only to communicate it to a person unauthorized to have it, but also to enable its removal from its secure storage facility through gross negligence. It is also a crime to fail to report that information’s improper removal or communication. So is retaining materials containing classified information at an unauthorized location. Secretary Clinton systematically conducted official business on a private unsecure system, and had subordinates do likewise, knowing the nature of their duties made classified communications inevitable. Like others with access to classified information, she signed a nondisclosure acknowledging that that this information could include “unmarked” documents and “oral communications.” At least one email finds her instructing a subordinate to remove classified markings and send a document to her via the nonsecure channel (though it is publicly unknown whether the subordinate complied). She is obviously responsible for any foreseeable wrongs committed by her subordinates using a system she set up. And she transferred the classified information on the servers to a private maintenance company and to lawyers not authorized to have it.

Go After Her at the Ballot Box, Not on Criminal Charges Despite rightly noting that it is dicey to make legal judgments based on press reports, Andy does just that, concluding that, based on her conduct and public statements, Hillary Clinton, as secretary of state, “transferred the classified information" on State Department servers "to a private maintenance company and to lawyers not authorized to have it,” and thereby likely committed a felony. If there is a real culprit here, it appears to be our labyrinthine, overbroad and preposterously unaccountable classification system, and not Secretary Clinton’s emailing habits. I assume the felony to which Andy is referring is 18 U.S.C. § 793(d), part of the antiquated Espionage Act of 1917, which makes it a crime if an individual in lawful possession of classified information (as Secretary Clinton surely was) “willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted ... the same to any person not entitled to receive it.” Not only is it unclear, as I explained in my opening comment, whether the top-secret information at issue was properly classified at the time (and was known to be so by Secretary Clinton), but it’s also unclear whether any of the emails were to individuals “not entitled to receive it,” as opposed to colleagues with the requisite security clearances. Nor is there any indication that any employee of the private company that maintained the server had access to any of the emails, let alone those containing information that was classified at that time — or, again, that Secretary Clinton was aware of such access. Andy nevertheless suggests that these laws are “prosecution-friendly,” and, at least as they are written, he’s correct. But the practical and constitutional problems with the Espionage Act have been long- and well-documented, all the more reason why they have never been pushed to their textual limits. Those who dislike Secretary Clinton and/or her politics may see this as a good opportunity to reverse that trend, but, as I suggested earlier, such an approach would attempt to criminalize entirely benign conduct that senior executive branch officials engage in on a routine basis. As significantly, pursuing criminal charges in this case, at least based on what we know today, would conflate Secretary Clinton’s careless email habits with the far more deliberate and willful mishandling of classified information by individuals like Sandy Berger, John Deutch and David Petraeus (who intentionally did share classified information with someone not entitled to have it). In this day and age, it is easy to rush to judgment, especially against an individual to whose politics one objects. But if there is a real culprit here, it appears to be our labyrinthine, overbroad and preposterously unaccountable classification system, and not Secretary Clinton’s emailing habits. Absent evidence of far more nefarious conduct, her enemies will have to beat her the old-fashioned way — at the ballot box.