In the interest of justice and fairness, one might think that I would clamor for a criminal investigation of Hillary Clinton personally under the Espionage Act. To be clear, after some very-public verbal contortions, two Inspectors General (IG) asked the Justice Department to open an investigation not into Clinton, but rather into whether sensitive government information was (passive voice) mishandled (by whom else?) in connection with the personal e-mail account she used as Secretary of State—a distinction without a difference except during election season in the most powerful country in the free world with one of the most powerful women on the planet as the frontrunner.
Rather, I actually think Clinton's case, though glaring with hypocrisy, may be the best example yet of why the Espionage Act should not be used against non-spies who are alleged to have mishandled (allegedly) classified information. “Allegedly” is in parentheses and scare quotes because the IG has said the information on Clinton’s private home server was not “marked” classified.
The retroactive classification of information has been a very real and disturbing problem espionage cases against whistleblowers. There is a reason the U.S. Constitution prohibits ex post facto laws, which make illegal an act that was legal when taken. Nevertheless, retroactively classified information figured prominently in convicting Sterling and the government tried to use it to convict Drake. Drake’s case collapsed for this reason, but Sterling is serving a 3 1/2 year prison sentence.
The most absurd instance of retroactive classification that I have ever seen, however, occurred at the State Department on Hillary Clinton's watch. Now-retired Foreign Service Officer Peter Van Buren, a 23-year veteran of the State Department, wrote a book critical of U.S. reconstruction projects in Iraq, We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People (Metropolitan Books 2011). More than a year after his book went through pre-publication review and had been shipped to bookstores, the State Department retroactively found “that two pages of the book…contain classified information” (including a place called “Mogadishu”) and that he could be prosecuted for espionage. This would be laughable, but for the fact that he was being accused of a criminal felony that can carry up to 10 years in prison.
In addition to the government’s nasty proclivity for retroactively classifying information for political reasons—and the more general plague of rampant overclassification—the Espionage Act is actually worded far more broadly than items with classification markings. It criminalizes the unlawful retention or disclosure of “national defense information.” To the extent that we are told (ironically, by leakers) that the questionable information on Clinton’s server included intelligence from the CIA, NSA, the Director of National Intelligence, and the Defense Intelligence Agency—it’s a pretty good bet this would include “national defense information.”
Hillary Clinton has said a number of uncharitable things about my client Edward Snowden. She, of course, will never be charged with espionage, bankrupted, imprisoned or exiled; in fact, she will probably be elected president. (Her private attorney is David Kendall, who obtained a sweetheart plea deal for former CIA director Gen. David H. Petraeus, who leaked classified information of the highest level to his mistress-biographer.) And there’s no dispute that there is a two-tiered system of justice for those who are powerful or politically-connected—something I wrote about here. But maybe this painful (and what probably feels like an unfair, politically-motivated vendetta that could tarnish her stellar career and derail her ultimate life’s goal) will make her reconsider the wisdom of prosecuting non-spies—especially whistleblowers—for espionage.