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2 takes on the law used to judge Clinton’s email use

Both FBI Director James Comey and Attorney General Loretta said they would not recommend or pursue charges against Hillary Clinton for her email practices as secretary of state. To examine the law they used to make that decision, Judy Woodruff talks to Shannen Coffin, former counsel to Vice President Dick Cheney, and Stephen Vladeck of the University of Texas School of Law.

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  • JUDY WOODRUFF:

    And we move from the politics back to the legal questions raised by the FBI's and now the attorney general's decision not to recommend criminal charges be filed.

    And we do that with Shannen Coffin. He is an attorney in private practice. He previously served as a deputy assistant attorney general for the Civil Division at the Department of Justice and as counsel to Vice President Cheney. And Stephen Vladeck, he's a professor at the University of Texas School of Law, where he focuses on federal jurisdiction, constitutional law, and national security law.

    And we welcome both of you to the program.

    Let me start with you, Shannen Coffin. Do you agree with the recommendation of the FBI director and now the attorney general that there not be a criminal prosecution of Hillary Clinton?

    SHANNEN COFFIN, Former Counsel to Vice President Dick Cheney: No, I don't.

    And if you watched Jim Comey's press conference, you will see quite a disconnect between the 10 minutes of discussion of fact and the recommendation. What Jim Comey set up was a violation of federal law that prohibits the misuse or mishandling of classified information through gross negligence, and he himself said…

  • JUDY WOODRUFF:

    You're saying he made that case of gross negligence?

  • SHANNEN COFFIN:

    He made that case, and he himself said that this was extreme negligence, extreme recklessness in handling this information. That is exactly what federal law prohibits and criminalizes as a felony.

  • JUDY WOODRUFF:

    Well, to you now, Stephen Vladeck. If that's what the federal law prohibits, if it's just — or if the standard is extreme negligence, why wasn't that enough?

    STEPHEN VLADECK, University of Texas School of Law: Well, I think the problem is that Shannen is leaving out the rest of that same statute, which doesn't just say it's a crime for an official like Secretary Clinton to exercise gross negligence in the handling of classified information.

    It's actually much more specific. That gross negligence must somehow lead to the loss of classified information, basically the same thing as if a courier left a briefcase full of classified documents in a public place. That's not what happened here.

    And so we may very well think that what Hillary did should be illegal. The problem is, is that the law we're talking about, Judy, is 99 years old and was not written to address this situation.

  • JUDY WOODRUFF:

    But your point is that what happened here didn't result in the loss of classified information?

  • STEPHEN VLADECK:

    Well, at the very least, we didn't hear anything to that effect from Director Comey. And I would like to think that if the FBI had discovered that Secretary Clinton's servers had been hacked, that through her, in Director Comey's words, extreme carelessness, some classified information had fallen into the wrong hands, I have to think we would have heard about that.

    Short of that, we may still think that what Hillary Clinton did was careless. We may still think it was pretty darn stupid, but the actual federal statute requires that the gross negligence lead to the loss of information. There's no claim here, there's no proof here that that's what happened.

  • SHANNEN COFFIN:

    That's simply not correct. The law actually only requires removal of the document from its proper place of custody.

  • STEPHEN VLADECK:

    That's not true. You're conflating two different statutes.

  • SHANNEN COFFIN:

    I'm looking at the statute right here, Professor Vladeck.

    The statute actually says, through gross negligence, permitting a document to be removed from its proper place of custody delivered to anyone in violation of the…

    (CROSSTALK)

  • JUDY WOODRUFF:

    Let me just let — let him finish that point, and I then I will come back to you.

  • SHANNEN COFFIN:

    So, lost — lost — losing a document certainly can be a basis for a violation, but there are other things that can happen. Simply removing — this is 793-F of the Espionage Act.

  • JUDY WOODRUFF:

    OK. And we're not going to be able to get into all the — because we can't follow that while we're here.

  • SHANNEN COFFIN:

    Right.

  • JUDY WOODRUFF:

    But I do want to come back to both of you on the standard that Director Comey seemed to use yesterday, and that is there was no clear evidence that Secretary Clinton or her colleagues intended, intended to violate the laws. What about that?

  • SHANNEN COFFIN:

    Utterly irrelevant. Under this particular statute, gross negligence is the standard.

    And that means extreme lack of care.

  • JUDY WOODRUFF:

    So you're saying the FBI director and now the attorney general have misinterpreted the law?

  • SHANNEN COFFIN:

    Absolutely. It's plain language.

  • STEPHEN VLADECK:

    And I think the problem with that, Judy, is that it's plain language of a small part of a much larger provision.

    And so I think the issue is, there is no precedent, none, for prosecuting, for convicting a U.S. government employee because they discussed classified information in an unsecure system and nothing else.

    Unless that information is somehow lost, unless it is removed from the government's possession, the government has never prosecuted anyone under the statute.

    (CROSSTALK)

  • SHANNEN COFFIN:

    … the entire purpose of the server was to remove this from the government's possession.

  • JUDY WOODRUFF:

    Let me ask you both…

    (CROSSTALK)

  • JUDY WOODRUFF:

    Well, let me move on to another related question.

    And that is, what has been raised today is whether there is a double standard, whether there was one standard for secretary of state and another for other people. And, in fact, Jim Comey said yesterday, the FBI director, he said this is not to suggest that in similar circumstances a person who engaged in this activity would face no consequences.

    He says, to the contrary, those individuals are often subject to security or administrative sanctions. So…

  • SHANNEN COFFIN:

    Right, and there have been.

    Members of the military — Sergeant Ricky Roller was a sergeant at Marine headquarters here in town. He removed a document, accidentally stuffed it in a bag and discovered it later and decided to keep it in a drawer at his house and never returned it. He was prosecuted under this very statute. He didn't intend anything.

  • JUDY WOODRUFF:

    What about that, Stephen Vladeck? Is there a double standard at work here?

  • STEPHEN VLADECK:

    Well, Judy, I do think there is a double standard, but I'm not sure Hillary's is the case to make that point.

    Shannen's right. We're talking about a different section than the one that the government used to go after leakers and putative whistle-blowers. So I think we can make a very strong argument that the government is much harder on line officers who disclose classified information to someone not authorized to receive it than senior officials like General Petraeus, who got a slap on the wrist for disclosing classified information to his mistress qua biographer.

    There is clearly a double standard at play here, but I'm not sure it's evident, it's applicable here.

  • JUDY WOODRUFF:

    Let me ask you both of, finally, do you see this as the end of this legal pursuit? Do you see this case as closed right now?

  • SHANNEN COFFIN:

    Certainly as to classified information. The attorney general's decision not to prosecute ends this.

  • JUDY WOODRUFF:

    So, no other, no further recourse?

    (CROSSTALK)

  • SHANNEN COFFIN:

    No, I don't think so.

  • JUDY WOODRUFF:

    And what about that, Stephen?

  • STEPHEN VLADECK:

    I completely agree. I think the real question is Congress, which has been urged for the better part of 60 years now to revisit the legal regime governing mishandling of classified information, is finally impelled to actually look at this carefully, or whether it's simply being used to score political points.

  • JUDY WOODRUFF:

    Yes. And I know you were telling us earlier today you think far more information is classified than should be, but that's another topic of discussion.

  • SHANNEN COFFIN:

    That's a discussion for another day. That's right.

  • JUDY WOODRUFF:

    It is.

    Well, for now, we want to thank you, Stephen Vladeck from the University of Texas Law School, Shannen Coffin here in Washington. Thank you both.

  • STEPHEN VLADECK:

    Thank you.

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