In Secretary Clinton’s case, the answer to the first question—was classified information mishandled?—was obviously “yes.” In all, there were thirty-six email chains that discussed topics that were classified as “Secret” at the time. Eight times in those thousands of email exchanges across four years, Clinton and her team talked about topics designated as “Top Secret,” sometimes cryptically, sometimes obviously. They didn’t send each other classified documents, but that didn’t matter. Even though the people involved in the emails all had appropriate clearances and a need to know, anyone who had ever been granted a security clearance should have known that talking about top-secret information on an unclassified system was a breach of rules governing classified materials. Although just a small slice of Clinton’s emails, those exchanges on top-secret topics were, by all appearances, improper. Put another way, there were thirty-six email chains about topics that could cause “serious” damage to national security and eight that could be expected to cause “exceptionally grave” damage to the security of the United States if released. The heart of the case, then, was the second question: What was she thinking when she did this? Was it sloppy or was there criminal intent? Could we prove that she knew she was doing something she shouldn’t be doing?As Andrew McCarthy writes, the law on espionage is very clear.
There is no way of getting around this: According to Director James Comey (disclosure: a former colleague and longtime friend of mine), Hillary Clinton checked every box required for a felony violation of Section 793(f) of the federal penal code (Title 18): With lawful access to highly classified information she acted with gross negligence in removing and causing it to be removed it from its proper place of custody, and she transmitted it and caused it to be transmitted to others not authorized to have it, in patent violation of her trust. Director Comey even conceded that former Secretary Clinton was “extremely careless” and strongly suggested that her recklessness very likely led to communications (her own and those she corresponded with) being intercepted by foreign intelligence services.and McCarthy again:
As I have contended before, this claim is specious on multiple levels. Subsection (f) of the pertinent statute (the Espionage Act, codified at Section 793 of Title 18, U.S. Code) makes it a felony to mishandle classified information “through gross negligence” — i.e., proving Clinton was sloppy or careless (or “extremely careless,” to use Comey’s own description) could have been sufficient. But beyond that, Clinton willfully set up a private network for the systematic handling of her State Department-related communications, in violation of federal record-keeping requirements of which she was well aware, and under circumstances in which she (a former senator who served for years on the intelligence Armed Services committee) was a sophisticated longtime consumer of classified information. She was keenly aware that her responsibilities as secretary of state would heavily involve classified information — whether it was “marked” classified or “born classified” because of the subject matter.
It is irrelevant whether Clinton’s purpose was to transmit or store classified information on the private, non-secure server; prosecutors are not required to prove motive. The question is whether she knew classified information would end up on the server, and her set-up made that inevitable.It is perhaps unimportant that we now know that Clinton's house maid in New York was ordered to print emails that showed up at the house and all of the emails to Clinton's server showed up at the house in New York and it goes without saying that the maid doesn't have any kind of security clearance and there is no way to know how many hard copies of the emails walked out the servant's door at the house in New York.
It is more than Clinton that should be prosecuted and jailed for crimes she committed. Anybody who sent classified emails to that server are listed on the emails the FBI has in its possession and those people also knowingly violated the espionage law by knowingly sending Top Secret and Secret information to an unclassified domain. They should go to jail too.
Why is there a special prosecutor for the complete non-crime of collusion but nobody is doing anything about actual criminals?