https://www.congress.gov/114/bills/s2298/BILLS-114s2298is.pdf
18 U.S. Code § 793 - Gathering, transmitting or losing defense information
(e)
Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the
United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the
United States entitled to receive it; or
(f)
Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense,
(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—
Shall be fined under this title or imprisoned not more than ten years, or both
Mishandling Classified Material: How Former CIA Agent's Case Compares with Clinton | National Review
As I have recently
explained, the misimpression that Clinton’s case is primarily about “extreme carelessness” rather than willful misconduct is the result of Obama administration sleight-of-hand. Mrs. Clinton should have been investigated (and charged) under
section 793(e) since she, like Lee,
willfully and unlawfully retained classified information in unauthorized places (and transmitted it to unauthorized people). The gross-negligence felony (793(f)) should have been the prosecutors’ fallback position — i.e., even if a jury somehow rejected the overwhelming evidence that she willfully mishandled the intelligence, she could still be convicted if the jury concluded she was grossly negligent.
Clinton was like Lee: She should have been prosecuted for willful misconduct.
In a deceptive two-step, the Obama Justice Department first claimed Clinton could not be prosecuted for willful mishandling because she did not have a motive to harm the United States (not an element of the offense, and thus not true). Then, it claimed that she could not be prosecuted for gross negligence, either. To do so, they insisted, would (a) be constitutionally problematic because negligence is usually a civil-law standard, not a basis for criminal guilt; and (b) unfairly single her out because the Justice Department rarely brings such cases. This was nonsense on stilts:
There is plenty of constitutional support for using negligence as a basis for criminal liability (for example, negligent homicide); the standard here was
gross negligence, and it was applied only to a special category of government officials who were given security clearances after extensive training in the proper handling of classified materials; military officials have been prosecuted for gross negligence for misconduct far less serious than Clinton’s; and section 793(f) is a presumptively valid congressional statute that has never been held unconstitutional in its century on the books, so if there was any question, the Justice Department should have defended the law, not undermined it.
