Hillary Rodham Clinton has committed a felony. That is apparent
from the facts and in the plain-language of the federal statute
that prohibits "Gathering, transmitting or losing defense
information", 18 U.S. Code � 793(e) and (f). This offense
carries a potential penalty of ten years imprisonment.

It's called a prima facie case: clear on the basis of known
facts.

It's up to prosecutorial discretion by the US Attorney as to
what charges may be filed and when. Nonetheless, Mrs. Clinton is
clearly chargeable for violation of federal law. As of right
now, the matter is under FBI investigation. This isn't just
about violation of Departmental policy.

The facts:

NYT: F.B.I. Tracking Path of Classified Email From State Dept.
to Hillary Clinton
http://www.nytimes.com/2015/08/15/us/fbi-tracking-path-of-email-
to-hillary-clinton-at-state-department.html?_r=0

WASHINGTON � F.B.I. agents investigating Hillary Rodham
Clinton�s private email server are seeking to determine who at
the State Department passed highly classified information from
secure networks to Mrs. Clinton�s personal account, according to
law enforcement and diplomatic officials and others briefed on
the investigation.

To track how the information flowed, agents will try to gain
access to the email accounts of many State Department officials
who worked there while Mrs. Clinton was secretary of state, the
officials said. State Department employees apparently circulated
the emails on unclassified systems in 2009 and 2011, and some
were ultimately forwarded to Mrs. Clinton.

They were not marked as classified, the State Department has
said, and it is unclear whether its employees knew the origin of
the information.

F.B.I. is also trying to determine whether foreign powers,
especially China or Russia, gained access to Mrs. Clinton�s
private server, although at this point, any security breaches
are speculation.
Four para limit stops here. But, I will in all fairness
stipulate that this article goes on to say that HRC is not at
this point the target of the investigation. However, Reuters has
since reported that her unsecured private server email system
contained "presumed classified" materials. Hillary personally
exchanged such presumed classified information with Sidney
Blumenthal, and those communications were intercepted and
publicly released by a Romanian hacker.

http://www.aol.com/article/2015/08/21/exclusive-dozens-of-
clinton-emails-were-classified-from-the-sta/21225607/

The fact that the email was not marked classified at the time
does not excuse Mrs. Clinton. This is because information
gathered from foreign government sources, a great deal of her
email was so sourced, is presumed classified. Mrs Clinton
received Departmental training on recognizing and handling
classified materials. Presumed classified information is defined
by Executive Order as "The unauthorized disclosure of foreign
government information is presumed to cause damage to the
national security." (see full text of that section of Executive
Order 13526- Classified National Security Information, Sec.
1.1(4)(d), below)

Secretary Clinton was trained in handling of classified
materials, and acknowledges that she understood them. By
transmitting and receiving email correspondence that contained
information gleaned from foreign government sources on an
unauthorized, insecure system, she violated the law. This was
not something she did unwittingly, and that the foreign
government sourced material was not stamped classified is
irrelevant.

On his last day in office, President Bill Clinton pardoned
former CIA Director John Deutch who had committed similar
violations. Deutch left the CIA on December 15, 1996 and soon
after it was revealed that several of his laptop computers
contained classified materials. In January 1997, the CIA began a
formal security investigation of the matter. Senior management
at CIA declined to fully pursue the security breach. Over two
years after his departure, the matter was referred to the
Department of Justice, where Attorney General Janet Reno
declined prosecution. She did, however, recommend an
investigation to determine whether Deutch should retain his
security clearance.

All Deutch did was to take some classified material home with
him to work on his unsecured personal laptops that were
connected to his home commercial internet. In other words,
pretty much what Hillary did on a much larger scale.

Other, lesser, federal officials have been recently prosecuted
for downloading classified materials onto private servers or
media and taking them home, and they were charged even though
the materials was never publicly released and they had no
intention to do so or to harm the United States. Links in
thread: http://www.democraticunderground.com/10141184063

Applicable statutes and Executive Order:

1) 18 U.S. Code � 793 - Gathering, transmitting or losing
defense information

Full copy of this Section of the 1917 Espionage Act is below. It
has been claimed that Hillary did not violate the law because
she didn't intend to injure the U.S. or aid a foreign power.
However, that purpose is not required to convict under this
Subsections (e) and (f) of this statute.

Subsections (a)-(d) and (g)(conspiracy) reference and require
intent to injure the United States. The plain-language of
Subsection (e) and particularly (f) are different:

The difference is this phrase that references purpose in the
first three subsections; "with intent or reason to believe that
the information is to be used to the injury of the United
States, or to the advantage of any foreign nation, Note: "is to
be used"

The language in (e) is close but omits reference to purpose to
injure: "he possessor has reason to believe could be used to the
injury of the United States or to the advantage of any foreign
nation". The word intent is not there. Note: "could be used"

Finally, the offense specified at (f) requires not willful
action, simply a negligent action:

(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�

The differences between Sections (e) and (f) and the various
other offenses covered in Section 793 comes down to the element
of intent to injure the US or act to the advantage of a foreign
power. These are not requisite elements of the offenses covered
under these sections of the Espionage Act.
2) 1950 Federal Records Act

44 U.S. Code � 3106 - Unlawful removal, destruction of records
https://www.law.cornell.edu/uscode/text/44/3106

Current through Pub. L. 114-38. (See Public Laws for the current
Congress.)
The head of each Federal agency shall notify the Archivist of
any actual, impending, or threatened unlawful removal, defacing,
alteration, or destruction of records in the custody of the
agency of which he is the head that shall come to his attention,
and with the assistance of the Archivist shall initiate action
through the Attorney General for the recovery of records he
knows or has reason to believe have been unlawfully removed from
his agency, or from another Federal agency whose records have
been transferred to his legal custody. In any case in which the
head of the agency does not initiate an action for such recovery
or other redress within a reasonable period of time after being
notified of any such unlawful action, the Archivist shall
request the Attorney General to initiate such an action, and
shall notify the Congress when such a request has been made.

That law requires heads of agencies -- no exception for DOS --
to preserve and turn over all official correspondence and
records to the National Archives. She didn't do that until
confronted after a Romanian hacker leaked Hillary's email
correspondence with Blumenthal. Those emails were clearly
official not private. HRC admits to destroying at least 30,000
emails she deemed private and turned over approximately 30,000
her lawyers found to be public documents. However, a number of
other emails have subsequently been turned over and analysed by
news agencies. Reuters reported that a number of them to contain
presumed classified information.

Hillary had also failed to provide these records to meet a FOIA
request and Congressional Committee subpoena, which violates
other federal laws.

Those emails and many like them were most recently found to
contain "presumed classified" materials about US communications
with foreign governments. That was a violation of Executive
Orders, and possibly the 1917 Espionage Act that criminalizes
private retention or mishandling of classified materials.