Writing in the New Yorker, CNN’s Jeffrey Toobin scoffs at the notion that Hillary Clinton faced any criminal sanctions for mishandling classified emails:
The consequences for Clinton, in the midst of a Presidential run, are far more likely to be political than legal. Criminal violations for mishandling classified information all have intent requirements; in other words, in order to be guilty of a crime, there must be evidence that Clinton knew that the information was classified and intentionally disclosed it to an unauthorized person. There is no evidence she did anything like that. This is not now a criminal matter, and there is no realistic possibility it will turn into one.
But he’s wrong on the law and the facts. According to 18 U.S.C. Section 793(f), Clinton can face up to ten years in prison even if she was only grossly negligent in handling national defense information:
(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense,
(1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or
(2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—
Shall be fined under this title or imprisoned not more than ten years, or both.
Regarding those statutes that do require proof of intent — like 18 U.S.C. Section 1924 — the question won’t be whether Clinton denies whether she intentionally removed or retained classified information but whether her inevitable denials are remotely credible. Over on the home page I’ve jumped into my time machine and recorded what a prosecutor’s opening statement would sound like in Clinton’s hypothetical 2017 trial. As you can see, the case would not hinge on her admissions but on the electronic record, the policies and practices of federal agencies, and considerable expert testimony. Based on the information we now have, the only way a person can say that there’s “no realistic possibility” that Clinton will face legal consequences would be to trust her overwhelming political power. That political power has saved the Clintons before. It may yet save them again.