President Barack Obama s recent remarks to my Fox News colleague Chris Wallace abo

ut Hillary Clinton s email issues were either Machiavellian or dumb. It is difficu

lt to tell them whether he wants the mountain of evidence of her criminal behavi
or presented to a federal grand jury or he wants her to succeed him in the White
House.
He cannot have both.
His efforts to minimize his former secretary of state s diversion of emails from g
overnment-secured servers to her own non-secure home server by calling it careles
s may actually harm her in the eyes of the public or even serve as a dog whistle
to the FBI. That s because carelessness is a species of negligence, and espionage,
which is the failure to safeguard state secrets by removing them from their pro
per place of custody, is the rare federal crime that can be proved by negligence
to be precise gross negligence.
Gross negligence is the failure to perform a high legal duty with the great prob
ability of an improper result
for example, driving a car 90 miles per hour in Ne
w York s Times Square. The high legal duty Clinton had was to safeguard state secr
ets; the improper result is the exposure of those secrets contained in her email
s.
What did she do that was criminal, and who was harmed by her behavior?
Clinton knowingly diverted all of her governmental emails from secure government
servers to her own non-secure server in her New York residence. Among the 60,00
0 emails, she diverted were 2,200 that contained state secrets. Because the esse
nce of espionage is the removal of secrets to non-secure venues, the crime is co
mplete upon removal. So Obama s statement in the Wallace interview that Clinton ca
used no harm is irrelevant. In espionage cases, the government need not prove th
at the defendant caused any harm.
Obama s further effort in the Wallace interview to minimize the classification of
secrets into the statutory categories of confidential,
secret and top-secret by snarki
ly commenting that there s classified and then there s classified is not what one woul
d expect from someone who has sworn to take care that all federal laws are enfor
ced.
Obama has interpreted that duty so as to permit his Department of Justice to pro
secute for espionage both a sailor when he took a selfie inside a nuclear submar
ine and sent it to his girlfriend and a Marine lieutenant who correctly warned h
is superiors about an al-Qaida operative masquerading as an Afghan cop in an Ame
rican encampment but mistakenly used his Gmail account to send the emergency war
ning.
The evidence of Clinton s failure to safeguard state secrets is overwhelming becau
se of the regularity of its occurrence. The evidence is well-grounded, as some o
f the secrets were too grave for the FBI to review and all came from her own ser
ver. And the evidence is sufficient to indict and to convict because it was obta
ined legally and shows a four-year pattern of regular, consistent, systematic vi
olation of the laws requiring safeguarding.
Obama s suggestion that some secrets were not really secret is also irrelevant, be
cause Clinton, like the president, swore to recognize secrets and to keep them s
ecret, no matter her opinion of them.
The FBI knows this and is taking it far more seriously than the president or Cli
nton.
Just last week, the team investigating Clinton sought and received the extraditi
on to the U.S. of a man who was imprisoned in Romania for computer hacking. One

of those he hacked is Clinton s confidant Sid Blumenthal, to whom she sent many em
ails containing state secrets. What will the hacker tell the feds he saw?
Clinton s surrogates began taking her legal plight seriously in the past few weeks
by arguing that her behavior was no different from that of other former high-ra
nking executive branch officials who occasionally and accidentally took top-secr
et documents home or discussed top-secret information in non-secure emails and t
hat the consequences for them were tepid or nonexistent.
Yet there is no comparison between these occasional lapses and the planned and p
aid-for four-year diversion of secrets that Clinton orchestrated. Moreover, ther
e is no instance of unprosecuted behavior that her supporters can cite that invo
lves the sheer volume and regularity of the failure to safeguard that we see her
e.
Though the government need not prove intent, there is substantial evidence of Cl
inton s intent to commit espionage from three sources. One is Clinton s email instru
cting an aide to remove the secret designation from a document and send it to her
from one non-secure fax machine to another. The second is the Blumenthal hacking
incidents, which occurred during her tenure as secretary of state and which did
not stop her from emailing him from her home server. The third is a federal rul
e that permits the inference of intent from a pattern of bad behavior, of which
there is ample evidence in this case.
On the same weekend that the president was damning Clinton with faint praise and
cynically offering what he must have known were irrelevant legal defenses, Clin
ton continued her pattern of persistent public laughing about and dismissing the
significance of the FBI investigation of her.
That attitude
which is recorded and documented by the FBI
must have caused many
of those investigating her to conclude that she understands the predicament she
is in but is minimizing it. Or she may be a congenital liar who is lying to hers
elf. Either way, they await with eager anticipation their interrogation of her,
should she foolishly submit to one.