However, as Jack Goldsmith, one of the top lawyers in
George W. Bush’s administration explains, such a prosecution “would be entirely novel, and would turn in part on very tricky questions about how email exchanges fit into language written with physical removal of classified information in mind.”
Ben Wittes, a veteran legal journalist and Brookings fellow who has spent the past several years specializing in national security law, wrote that
Comey’s characterization was clearly correct:
For the last several months, people have been asking me what I thought the chances of an indictment were. I have said each time that there is no chance without evidence of bad faith action of some kind. People simply don't get indicted for accidental, non-malicious mishandling of classified material. I have followed leak cases for a very long time, both at the Washington Post and since starting Lawfare. I have never seen a criminal matter proceed without even an allegation of something more than mere mishandling of sensitive information. Hillary Clinton is not above the law, but to indict her on these facts, she'd have to be significantly below the law.
It’s true that to a layman the Espionage Act’s reference to “gross negligence” sounds similar to Comey’s characterization of Clinton’s actions as “extremely careless.” But as Philip Zelikow, a counselor to Condoleezza Rice during the Bush administration and currently the Director of the Miller Center at the University of Virginia explains, they only sound alike “unless you do a tiny bit of homework” on the history and caselaw of the Statute.
...
As the Cato Institute’s Julian Sanchez writes, attempting a prosecution for non-malicious mishandling would likely result in the statute being held unconstitutional: “the Supreme Court’s opinion in
Gorin v. United States (1941), which suggests that the Espionage Act’s intent requirements are an important feature that save it from unconstitutional vagueness.”
