Hillary dodges a bullet, rule of law not so lucky
How ironic that the day after the US celebrated its 240th anniversary marking the rule of law as the national standard, that no one is above the law, sadly the “rule of law” died in America.
A subdued Director of the FBI, James Comey, laid out the findings of the FBI criminal investigation against Democratic presidential hopeful Hillary Clinton by declaring her conduct to be careless in the handling of classified documents on a home-brew private server. At the apex of his case, Comey did an about face and said she shouldn’t be indicted because he found no intent, just stupidity. Strikingly, this particular crime does not require intent, just carelessness (code here).
This FBI determination is in stark contrast to the careless handling of classified material by all those intelligence, military and law enforcement officials serving time in jail for compromising sensitive or classified documents.
Two people not as lucky as Clinton are Marine Major Jason Brezler who was kicked out of the military for self-reporting (story here) and CIA officer, John Kiriakou, who pleaded guilty to unlawfully sharing secret intelligence material with members of the press (Story here).
Mrs. Clinton steadfastly continued her loose interpretation of the facts. During a March Fox News town hall, she emphatically said, “I did not e-mail any classified material to anyone on my e-mail. There is no classified material. I’m certainly well-aware of the classification requirements and did not send classified material.”
However, at today’s FBI news conference Mr. Comey rebuked that statement. “From the group of 30,000 emails returned to the State Department, 110 emails in 52 email chains have been determined by the owning agency to contain classified information at the time they were sent or received. Eight of those chains contained information that was Top Secret at the time they were sent; 36 chains contained Secret information at the time; and eight contained Confidential information, which is the lowest level of classification. Separate from those, about 2,000 additional emails were ‘up-classified’ to make them Confidential.”
Another inconvenient statement Mrs. Clinton made at an August 2015 Las Vegas event, “Whether it was a personal account or a government account, I did not send classified material and I did not receive any material that was marked or designated classified, which is the way you know whether something is.”
Today, Comey reported that a “very small number of the emails containing classified information bore markings indicating the presence of classified information. But even if information is not marked ‘classified’ in an email, participants who know or should know that the subject matter is classified are still obligated to protect it.”
Once FOIA requests began to filter into the State Department looking for email chains on specific topics, the world learned the former Secretary of State deleted 30,000 emails she deemed personal. Again in the ‘after’ shocks lead Clinton’s press secretary Nick Merrill told Time Magazine that her lawyers read every email. He said, “Every one of the more than 60,000 emails were read. Period.”
But as this scandal continues to defy the odds the FBI director pointed out that Mrs. Clinton’s emails were NOT read individually. “The lawyers doing the sorting for Secretary Clinton in 2014 did not individually read the content of all of her e-mails, as we did for those available to us; instead, they relied on header information and used search terms to try to find all work-related e-mails among the reportedly more than 60,000 total e-mails remaining on Secretary Clinton’s personal system in 2014,” Comey acknowledged. “It is highly likely their search terms missed some work-related emails, and that we later found them, for example, in the mailboxes of other officials or in the slack space of a server.” Comey did not comment on any allegations of obstruction of justice or destruction of evidence or failure to maintain official government information as proscribed by the National Records Act.
On top of that, the Secretary said on multiple occasions that Clinton handed over EVERY email to the State Department. Again, not true. Comey said, “The FBI also discovered several thousand work-related emails that were not in the group of 30,000 that were returned by Secretary Clinton to State in 2014. We found those additional emails in a variety of ways. Some had been deleted over the years and we found traces of them on devices that supported or were connected to the private email domain. Others we found by reviewing the archived government email accounts of people who had been government employees at the same time as Secretary Clinton, including high-ranking officials at other agencies, people with whom a Secretary of State might naturally correspond. This helped us recover work-related emails that were not among the 30,000 produced to State. Still others we recovered from the laborious review of the millions of email fragments dumped into the slack space of the server decommissioned in 2013.”
He also confirmed that they are confident they didn’t get all the emails, as the multiple servers she used in her New York home were wiped clean. “It is also likely that there are other work-related e-mails that they did not produce to State and that we did not find elsewhere, and that are now gone because they deleted all e-mails they did not return to State, and the lawyers cleaned their devices in such a way as to preclude complete forensic recovery.” Comey made no comment about Clinton lawyers having access to classified SAP materials (story here) without obtaining a security clearance either.
Plus, Clinton testified at a House committee hearing concerning the email scandal. She told Chairman Trey Gowdy (R-SC), of Benghazi fame that “all my work related emails, yes,” were given to the State Department. “I know that because there was an exhaustive search done under the supervision of my attorneys, and that is exactly the outcome. We turned over every work related email, in fact, as somebody referred to earlier, we turned over too many.”
Another attempt to misdirect the media came in the form of hacking. Clinton and her campaign staff repeatedly told reporters that her private server had never been hacked. Even after the Marcel Lazar aka Guccifer testified in open court that he hacked into her server, they continue to misrepresent the truth. It’s also worth noting that Wikileaks has posted many of Clinton’s emails adding to a growing list of organizations that had access to the unsecured private server.
The FBI concluded something far different. “We do assess that hostile actors gained access to the private commercial email accounts of people with whom Secretary Clinton was in regular contact from her personal account. We also assess that Secretary Clinton’s use of a personal email domain was both known by a large number of people and readily apparent. She also used her personal e-mail extensively while outside the United States, including sending and receiving work-related e-mails in the territory of sophisticated adversaries. Given that combination of factors, we assess it is possible that hostile actors gained access to Secretary Clinton’s personal email account.”
The conclusion of Comey’s rhetorical indictment of her unlawful email practices ended with a magic trick– she’s not to be referred for prosecution because there was no intent. She acted recklessly, extremely carelessly and the State Department demonstrated a lackadaisical approach to handling classified material.
“Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past,” Comey said.
Judicial Watch President Tom Fitton, who broke the story when they uncovered the private email server, disagrees with the agency’s suggestion. “FBI Director James Comey detailed Hillary Clinton’s massive destruction of government records and grossly negligent handling of classified information. Frankly, there’s a disconnect between Comey’s devastating findings and his weak recommendation not to prosecute Hillary Clinton. Federal prosecutors, independent of politics, need to consider whether to pursue the potential violations of law confirmed by the FBI.”
Comey based his finding on case law. “In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.”
However, one Clinton email chain clearly underscores intent. (link here)
“UNCLASSIFIED U.S. Department of State Case No. F-2014-20439 Doc No. C05787519
Date: 01/07/2016 RELEASE IN PART B5, B6
From: H <firstname.lastname@example.org>
Sent: Friday, June 17, 2011, 8:21 AM
Subject: Re B5
If they can’t, turn into non-paper w no identifying heading and send nonsecure (emphasis added)
From: Sullivan, Jacob J [mailto:Sullivann@state.gov]
Sent: Friday, June 17, 2011, 08:17 AM
Subject: Re: B5
They say they’ve had issues sending secure fax. They’re working on it.
From: Sullivan, Jacob J
Sent: Friday, June 17, 2011, 08:00 AM
To: ‘HDR22@clintonemail.com’ HDR22@clintonemail.com
Subject: Re: B5
From: H [mailto:HDR22@clintonemail.com]
Sent: Friday, June 17, 2011, 07:52 AM
To: Sullivan, Jacob J
Subject: Re: B5
I didn’t get the TPs yet.
From: Sullivan, Jacob 3 [mailto:SullivanD@state.gov]
Sent: Thursday, June 16, 2011, 05:51 PM
Subject: Fw: B5
You’ll get tps this eve. They’re coming together.”
Trying to send a classified email onto a server that has not accepted protocol, and then directing staff to skirt the system suggests intent.
Legal beagles have summarized three different laws that meet the prosecution threshold.
Mishandling Classified Information. Executive Order 13526 and 18 U.S.C Sec. 793(f) of the federal code make it unlawful to send or store-classified information on personal email. Casey Harper at The Daily Caller researched this angle:
“‘By using a private email system, Secretary Clinton violated the Federal Records Act and the State Department’s Foreign Affairs Manual regarding records management, and worse, could have left classified and top secret documents vulnerable to cyber attack,’ Cause of Action Executive Director Dan Epstein said in an email to reporters. ‘This is an egregious violation of the law, and if it were anyone else, they could be facing fines and criminal prosecution.’”
He disclosed that multiple violations of this law have been enforced, “including in 1999, when former CIA Director John M. Deutch’s security clearance was suspended for using his personal email to send classified information. Additionally, Gen. David Patraeus pleaded guilty for mishandling classified information by using a Gmail account instead of his official government email.”
Violation of The 2009 Federal Records Act Section 1236.22 of the 2009 National Archives and Records Administration (NARA) requirements states that: “Agencies that allow employees to send and receive official electronic mail messages using a system not operated by the agency must ensure that Federal records sent or received on such systems are preserved in the appropriate agency record keeping system.”
And finally the violation of the Freedom Of Information Act (FOIA); Joel Arends, chairman of Veterans for a Strong America, explained to the Washington Examiner their Benghazi FOIA request specifically asked for any personal email accounts Secretary Clinton may have used: “‘At this point in time, I think we’re the only ones that specifically asked for both her personal and government email and phone logs,’ Arends said of his group’s Benghazi-related request.”
A twitter chain today with former Director of Defense Intelligence Agency Army Lieutenant General Mike Flynn illustrates what would happen if he did what Secretary Clinton did.