Though the FBI has not found evidence to support an espionage indictment against Lee, Justice officials are considering charging him under a lesser statute that makes it a federal felony, punishable by up to 10 years in prison, to handle national defense information with "gross negligence." Richardson and FBI officials are said to be eager to see Lee indicted, not only to sanction him for downloading the legacy codes but also to pressure him to talk about why he did so and with whom, if anyone, he shared the data.
Still, officials acknowledge, the mishandling law is flawed. Says a veteran espionage-law specialist: "If you prosecuted people for leaving classified documents in a men's room or a cab or at home, you'd end up prosecuting every GS-7 clerk and secretary in the government." As a matter of policy, to avoid negative court decisions that could make it harder to try full-fledged espionage cases, the Justice Department has rarely invoked the statute. Lee's lawyer, Mark Holscher, is underwhelmed. "It is unfortunate that unnamed sources appear to be attempting to use the press to revive this flawed investigation," he said. "We continue to believe and expect that Dr. Lee will be exonerated."