Three months after Hillary Clinton’s use of a private email address and server while secretary of state was referred to the FBI, an intelligence source familiar with the investigation tells Fox News that the team is now focused on whether there were violations of an Espionage Act subsection pertaining to "gross negligence" in the safekeeping of national defense information.
Under 18 USC 793 subsection F, the information does not have to be classified to count as a violation. The intelligence source, who spoke on the condition of anonymity citing the sensitivity of the ongoing probe, said the subsection requires the "lawful possession" of national defense information by a security clearance holder who "through gross negligence," such as the use of an unsecure computer network, permits the material to be removed or abstracted from its proper, secure location.
Subsection F also requires the clearance holder "to make prompt report of such loss, theft, abstraction, or destruction to his superior officer. "A failure to do so "shall be fined under this title or imprisoned not more than ten years, or both."
The source said investigators are also focused on possible obstruction of justice. "If someone knows there is an ongoing investigation and takes action to impede an investigation, for example destruction of documents or threatening of witnesses, that could be a separate charge but still remain under a single case," the source said. Currently, the ongoing investigation is led by the Washington Field Office of the FBI.
A former FBI agent, who is not involved in the case, said the inconsistent release of emails, with new documents coming to light from outside accounts, such as that of adviser Sidney Blumenthal, could constitute obstruction. In addition, Clinton’s March statement that there was no classified material on her private server has proven false, after more than 400 emails containing classified information were documented.
Clinton and her team maintain the use of a private account was allowed, and the intelligence was not classified at the time, but later upgraded. The latter claim is disputed by the intelligence community Inspector General, who represents the agencies involved, which concluded the information was classified from the start.
One of Clinton's primary defenses is that the emails containing classified information, did not carry classification markings, but a leading national security defense attorney says that is no excuse under the law.
“The fact that something's not marked or that the person may not know that it was classified would not be relevant at all in a prosecution under the Espionage Act,” defense attorney Edward MacMahon Jr. recently told Fox.
It is not known what relevant evidence, if any, has been uncovered by the FBI, or whether any charges will ultimately be brought, but Director James Comey told reporters in Washington D.C. on Oct. 1, "If you know my folks... they don't give a rip about politics."
On Thursday, a group of national security whistleblowers held a news conference in Washington at the National Press Club to highlight what they characterized as a double standard in these types of cases.
NSA whistleblower Thomas Drake was indicted in 2010 under the Espionage Act for sharing unclassified material with a Baltimore Sun reporter. Drake, who also went to Congress with his concerns about the NSA, said his goal was to expose government misconduct.
"This is the secretary of state, one of the most targeted individuals by other intelligence entities and agencies in the world using a private server to traffic highly sensitive information and no doubt including classified information and no doubt including info about sources and methods,"Drake said at Thursday’s event.
He added the whistleblowers’ treatment shows there is a law for the average citizen, and apparently a different set of rules for the powerful.
"But hey, I'm secretary of state,” Drake said in a sarcastic tone. ”Even Obama gave her cover."
The charges against Drake were eventually dropped. He pled guilty to a misdemeanor, but in the process lost his ability to work in national security and depleted his life savings to mount a defense.
Former CIA officer Jeffrey Sterling also went to Congress with his complaints, but was sentenced in May to three-and-a-half years in prison for violating the Espionage Act by giving classified information to a New York Times reporter. Sterling, who is appealing the case, was also convicted on obstruction of justice charges because a single email was missing from his account, even though the government could not show he was responsible for that.
Clinton has acknowledged deleting some 30,000 emails she considered personal.
In 2015, former CIA Director General David Petraeus pled guilty to a misdemeanor admitting he mishandled classified materials by sharing notebooks with his former mistress and biographer, Paula Broadwell.
He also was ordered to pay a $100,000 fine. Sterling’s supporters said he shared far less classified information with the New York Times.
“Powerful and politically connected individuals accused of the same and much worse conduct receive, at most, a slap on the wrist. Like General David Petraeus who gave away more secret information, classified at a much higher level, to his mistress and received a sweetheart plea deal for a minor misdemeanor,”Jesselyn Radack, a whistleblower and former ethics adviser to the Department of Justice, said Thursday.
“Or Hillary Clinton - she got a primetime TV apologist political spin interview from President Obama himself,” Radack added.
Catherine Herridge is an award-winning Chief Intelligence correspondent for FOX News Channel (FNC) based in Washington, D.C. She covers intelligence, the Justice Department and the Department of Homeland Security. Herridge joined FNC in 1996 as a London-based correspondent.