BESIDES, THERE'LL BE NO TIME WHAT WITH THE IRS AND GUNRUNNER PROSECUTIONS....:

What follows reflects the knowledge and experience I have gained from working at the Department of Homeland Security from 2008 until 2011. While there, I took the lead in drafting a security classification manual for one of the divisions of the DHS science and technology directorate. In this discussion, I offer answers to questions about the former secretary of state's email that have not been frequently asked, but should be.

What constitutes criminal conduct with respect to the disclosure of classified information?

Relevant law is found in several statutes. To begin with, 18 USC, Section 798 provides in salient part: "Whoever knowingly and willfully ... [discloses] or uses in any manner prejudicial to the safety and interest of the United States [certain categories of classified information] ... shall be fined ... or imprisoned."

The most important words in this statute are the ones I have italicized. To violate this statute, Secretary Clinton would have had to know that she was dealing with classified information, and either that she was disclosing it to people who could not be trusted to protect the interests of the United States or that she was handling it in a way (e.g. by not keeping it adequately secure) that was at least arguably prejudicial to the safety or interest of the United States.

The statute also provides a definition of what constitutes classified information within the meaning of the subsection described above: "[C]lassified information, means information which, at the time of a violation of this section, is specifically designated by a United States Government Agency for ... restricted dissemination."

Again, the most important words are the ones I have italicized. First, they indicate that the material must have been classified at the time of disclosure. Post hoc classification, which seems to characterize most of the classified material found on Clinton's server, cannot support an indictment under this section. Second, information no matter how obviously sensitive does not classify itself; it must be officially and specifically designated as such.

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