THERE'S NO THERE THERE:

Based on what we know today, there are likely two primary laws at the heart of the probe and two or three others that might be considered investigative fallout. Partisans alleging that Clinton may have violated as many as 15 crimes are either exaggerating or simply seeking to overstate the gravity for effect.

1) The first and most discussed statute has been 18 U.S.C.A. § 1924(a), and it's a misdemeanor:

"Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both."

There are serious legal hurdles to overcome for those who would seek to file a charge under this law. First, none of the information she possessed and/or presumably "removes" had officially been declared "classified" at that time. That matters.

Sure, there is an argument that classified "documents" are not the same as classified "information" and that certain information is "classified at birth" and therefore always officially classified. And there's no question that some of the information and/or documents were later declared classified.

But this isn't a law school exam where we attempt to figure out how creative one can become in fitting a law into a particular fact pattern. We are talking about whether a criminal charge should be filed based on intentional conduct when even governmental agencies squabble over what is classified and what isn't. So proving that she "knowingly" removed "classified information" "without authority" at the time seems far-fetched based on what we know today.

2) But those legal requirements of intentional conduct regarding classified information do not exist in the language of 18 U.S.C.A § 793(f), which is a felony:

"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."

Here, if it is determined that by "gross negligence" she permitted information "relating to the national defense" (as opposed to the more formal "classified" definition) "to be removed from its proper place of custody," then she could be facing up to 10 years behind bars.

Reading this as a layperson one might think this could be an easier crime to prove. Not so.

Could an aggressive prosecutor argue that it was grossly negligent for her to run all of her emails out of her home server and that it included "national defense" information "removed from its proper place of custody?" Sure, but that would also warp the intent and interpretation of this Espionage Law without far more evidence than what we have today.

In 1941, the U.S. Supreme Court heard a case which challenged whether the phrase "national defense" in this Espionage Law was too vague and over-broad. The answer was no only because:

"we find no uncertainty in this statute which deprives a person of the ability to predetermine whether a contemplated action is criminal under the provisions of this law. The obvious delimiting words in the statute are those requiring intent or reason to believe that the information to be obtained is to be used to the injury of the United States, or to the advantage of any foreign nation. This requires those prosecuted to have acted in bad faith."

The Supreme Court clearly never envisioned a prosecution under the Espionage Act without "intent" to injure the United States and in "bad faith" (This was in reference to a different section of the same law but the point remains the same). Other courts have interpreted the phrase "national defense" narrowly as a direct result of the fact that on its face, the words seem so broad.

Furthermore, "gross negligence" as a legal matter, doesn't, and shouldn't, just mean it was wrong or dumb or even just careless. Rather gross negligence is generally defined legally as:

"A lack of care that demonstrates reckless disregard for the safety or lives of others, which is so great it appears to be a conscious violation of other people's rights to safety. It is more than simple inadvertence...."

As Professor Laurie Levinson explained in the National Law Journal:

"Politics aside, it is difficult to find prior cases where the unwise handling of classified information led to a federal indictment. For the last 20 years, the federal statutes have been used when there were intentional unauthorized disclosures. The Department of Justice appears to have gone after 'leakers,' but not bunglers."

That is another critical point here. This Espionage Law clearly was never intended to address a Secretary of State using -- foolishly or even improperly to maintain her privacy -- a personal email server to send and receive emails. Inevitably, this novel use of the law would leave a political stink. Efforts to compare this situation to other cases that have been prosecuted also fail on the facts.

Yes, many laws are regularly used as swords well beyond their intended purpose and if we learn that she or her aides were intentionally removing or even copying classified documents and moving or sending them to her unsecured personal server that could be a different story. We do know that in some of the released emails, her aides even discuss the need to steer away from classified information. Exactly what they did to give her access to certain information and/or who ordered it, will be important issues. Based on what we know today, however, charging Clinton with Espionage would be overreaching to say the least.

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