Former DOJ lawyer Ronald Sievert says the media has bought into a Clinton camp defense strategy involving whether her email was “marked classified” at the time or not. In a piece for USA Today, Sievert calls this effort a smokescreen and notes the word “classified” does not even appear in the relevant statute:
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.
Sievert argues that the media has failed to press Clinton on this point for one of two reasons. Either they are not familiar with the relevant statute and therefore don’t have enough information to know when Clinton’s camp is selling them a line or they are simply not inclined to damage the leading contender for the Democratic nomination.
Although Sievert believes the case would best be left up to a jury, he joins the list of people skeptical the case will ever get that far. He writes, “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.”
In other words, important people with high-powered lawyers are likely to get a slap-on-the-wrist, if anything, even as lower-ranked individuals are prosecuted for similar abuses. As former CIA analyst Melvin Goodman told the Washington Post back in 2000, “Important people seem to get away with more than lesser people.”