It's not surprising that the contretemps over Hillary Clinton's email practices at the State Department have riled up her critics and defenders alike.
To her critics, Clinton's discussion of sensitive topics via emails sent through a private server plays right into the narrative that she can't be trusted. To her defenders, the fact that her Republican predecessors as secretaries of state also conducted official business over private email reinforces the perception that Clinton is being singled out because of who she is, rather than what she did.
In today's political climate, it seems likely that no amount of legal analysis will budge either of the camps. That said, there are three points relevant to any legal analysis that many of the public discussions have overlooked.
Point 1: A fair amount of ink has been spilled on the number of emails on the private server that contained "classified" information. The problem is the timing: The government claims only now that the emails are classified to justify withholding them from the broader release of emails on the private server.
But federal law allows, and the government routinely engages in, retroactive classification, when the government decides that materials ought to be withheld from the public today, even if they weren't earlier. The legal question is not whether the emails contain information that is classified today; it is whether Clinton knew or should have known at the time that their content was or was not classified. Thus far, there is no public evidence to that effect.
Point 2: The two criminal statutes that Clinton's critics point to seem to require more than what's happened here. A section of the Espionage Act of 1917 makes it a crime for a government officer to engage in "gross negligence" that allows national security secrets to be removed from their "proper place of custody." Even if there were an argument that merely discussing sensitive subjects over email is tantamount to removing them from proper custody, the widespread use of private email servers by other government officials would make it near-impossible to establish "gross negligence" here.
The federal statute that deals with the less serious offense of mishandling classified information only makes it a crime for an official to "knowingly remove" such material "without authority and with the intent to retain" it. Again, it's not clear that merely discussing classified information is what Congress meant to prohibit. But even if it were, there's nothing to suggest that, unlike former National Security Adviser Sandy Berger, who physically removed secret documents from the National Archives, Clinton intended to deprive the government of possession of the information discussed in her emails.
Point 3: If the criminal laws were read broadly enough to encompass Clinton's conduct, it's hard to see where that would stop. It is no secret that government officials routinely mishandle classified information, by discussing it in public or through unsecured communications networks, and by failing to follow procedures for storing and transporting it. It's also not a secret that the Espionage Act would criminalize an awful lot of behavior that most of us would find harmless — like reading newspaper coverage of secret government programs.
This entire episode underscores that some criminal laws governing classified information are nearly a century old, and that our classification regime incentivizes classification and makes it exceedingly difficult to declassify materials that should never have been secret in the first place.
Reasonable minds can and will debate whether federal law ought to prohibit the use of a private email server. But wishing doesn't make it so.
Stephen I. Vladeck is a professor of law at American University Washington College of Law and co-editor-in-chief of Just Security. This was written for Newsday.