Charges seen as unlikely in Clinton email case

WASHINGTON — Asked earlier this month whether she’d be indicted over her use of a private email server as secretary of state, Hillary Clinton responded: “It’s not going to happen.”

Though Republicans characterized her response as hubris, several legal experts interviewed by the Associated Press agreed with the front-runner for the Democratic presidential nomination.

The relatively few laws that govern the handling of classified materials were generally written to cover spies, leakers and those who illegally retain such information, such as at home. Though the view is not unanimous, several lawyers who specialize in this area said it’s a stretch to apply existing statutes to a former cabinet secretary whose communication of sensitive materials was with aides — not a national enemy.

During her tenure as the nation’s top diplomat between 2009 and 2013, Clinton’s work emails were routed through a private computer server located in the basement of her New York home. The State Department now concedes that a small percentage of those messages contained sensitive national security information, including some later determined to be top secret.

It is a felony to handle national defense information with “gross negligence,” by causing it to be removed from its proper place of custody or to be lost, stolen or destroyed. But that statute is part of the Espionage Act, a law that’s generally intended for people the government believes intended to harm U.S. national interests. Proving gross negligence requires showing an act was more than just a mistake.

“One has to put this in perspective of what types of prosecutions have happened under the Espionage Act,” said Jon Michaels, a national security law professor at UCLA. “And the universe of prosecutions under the Espionage Act is quite small.”

Brad Moss, a Washington lawyer who deals regularly with security clearance matters, said the Justice Department could conceivably look to bring charges in the Clinton email case but prosecutors would have to decide if they “really want to take that gamble.” Inquiries into mishandling of classified information generally end with a security clearance revocation rather than a criminal charge, he said.