So in recent days, FBI Director Comey recommended not seeking prosecution of Hillary Clinton over the email scandal because there was no prior precedent for doing so. Let’s take a quick dive into the Espionage Act of 1917 and perhaps it’s amendment in the 1940s where Title 50 changed to Title 18 and USC 793 was added. What is Title 18 USC 793 (pdf)? It’s just the Federal Law regarding “gathering, transmitting or losing defense information” which happens to seem appropriate. It has many clauses, but section (e) states:

(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;

At first, one might say that doesn’t exactly apply to Clinton’s scenario and Title 18 USC 798 is more appropriate. But what is important is Director Comey’s statement that there is no precedent. Most of the prior applications of the Espionage Act were used for anti-war sentiment from WWII and Vietnam in a sense more closely related to sedition. Then another series of applications were made most notably to attempt prosecuting journalists who happen to come into possession of classified material with the intent to publish them. Then a number of individuals throughout the past four decades have been prosecuted under Title 18 USC 794 (pdf) for gathering or delivering defense information to aid foreign governments. But let’s look quickly at FOUR individuals that have been prosecuted under 793(e) specifically. Pay particular attention to the details of the first exemplar, his prosecution alone provides all the precedent to indict Clinton merely on the possession in an unsecure environment.

• Former NSA employee Kenneth Ford was prosecuted under 793(e) for possessing classified information in his house and separately for lying about it where he ultimately served 6 years in prison.
• Former NSA employee Thomas Drake was prosecuted under 793(e) also for possessing classified information in his house and separately for transmitting it to the press where he faced a 35 year sentence but avoided sentencing through a plea deal.
• Bradley (Chelsea) Manning was charged under UCMJ (which contains language from USC 793) for leaking State Department cables (and only secret level) and sentenced to 35 years.
• Edward Snowden is charged under USC 793 and 798 but has escaped prosecution living in exile enjoying data privacy freedom in Russia.

In summary, it’s very disingenuous for Director Comey to say there is no precedent when the very act of possessing classified information in your home (an email server in your house) and allowing unauthorized people to see it’s contents (lawyers, staffers, and nation-state hackers) have resulted in the aforementioned prosecutions, convictions, and prison time on several occasions within the past 15 years. As a matter of fact, the Obama Administration is noted for applying the Espionage Act more often than any previous presidency. A mere three years ago, Obama stated, “Leaks related to national security can put people at risk. They can put men and women in uniform that I’ve sent into the battlefield at risk. And so I make no apologies, and I don’t think the American people would expect me, as commander in chief, not to be concerned about information that might compromise their missions or might get them killed.”

Even older prior precedent for the Espionage Act was more extreme – willfully transmitting that same information directly into the hands of foreign agents – where the United States has both executed and imprisoned the guilty for life.