I watched last night’s debate with great interest. I thought both Sanders and Clinton had some very strong moments. However, I tend to watch these debates for the legal issues and I was most struck by former Secretary of State Hillary Clinton’s discussion of the email scandal. First, she declared that she will never be indicted — a statement that may irritate federal investigations looking into possible crimes. She certainly has defenses and the odds may indeed favor her. However, defense attorneys usually discourage such statements from potential targets which can enrage prosecutors as presumptuous or suggesting some level of immunity. Second, she insisted that her “predecessors did the same thing” that she did on emails — a statement that is demonstrably untrue but again was left unchallenged by the journalists.
THE INDICTMENT QUESTION
We previously discussed the controversy of the White House stating that the investigation was not moving toward any criminal charges — a statement would indicate either a sweeping assumption or an improper degree of consultation between the White House and the Justice Department on an ongoing investigation. As discussed below, having a personal server is not a crime. Mishandling classified material (or related classification violations) or evading federal laws can be. It would be premature to dismiss or predict an indictment. While the odds may be in her favor, it would be obviously absurd to say that no indictment is possible. It depends on the evidence, which remains largely unknown.
There is of course no way for Clinton to know about what will happen with the indictment. Given that she is running on the theme of “no one to big to jail,” the dismissing of the notion of an indictment is a tab in congruous. She certainly has support for saying that recent cases have resulted in relatively light punishment.
As I have previously noted, the best case for Clinton is the conviction of retired four-star general and CIA director David H. Petraeus for mishandling classified information. The deal given to Petraeus by the Justice Department was absurd and rightfully led to objections that powerful figures like Petraeus and Clinton are treated differently from average people. Nevertheless, the Clintons can claim that Petraeus was far more egregious in his lying to investigators and knowing disclosure of top secret code words, identities of covert officers, war strategy and intelligence capabilities to his lover and biographer.
Then there was the late Samuel “Sandy” Berger, a former White House national security adviser to Bill Clinton, who faced that same charge after he intentionally removed and destroyed copies of a classified document (putting some material in his socks to sneak them out). Berger was trying to protect Clinton in the reviewing of potentially negative classified information. Not only that but Berger then lied to investigators — a separate crime regularly prosecuted by the Justice Department. Yet, no one called for his long incarceration. Instead, he was allowed to plead guilty to a single misdemeanor with no jail time.
Petraeus was fined $100,000 and sentenced to two years of probation. In combination with Petraeus and Berger, a decision not to charge Clinton or her aides in mishandling classified information would raise serious questions for the Justice Department in later seeking indictments for others. In fairness to Clinton, there remains the question of intent and whether she knew or should have known of any violations.
In terms of legal strategy, Clinton’s comments would make most criminal defense attorneys wince. There is clearly a huge investigation at the FBI, including the recent granting of immunity to a prior aide of Clinton. To dismiss any notion that those investigators or prosecutors could indict her, Clinton risks fueling any internal debates over political pressures on the investigation or the need to show that no one is above the law. It can be taken as taunting or, even worse, threatening that no one would dare bring such a charge. In fairness to Clinton, I do not believe that is how she meant it. I think she was making a legal point that there are no grounds for an indictment but there is a reason why attorneys prevent clients from making such dismissive statements.
PREDECESSOR COMMENT
The statement about her predecessors and that fact that no information was marked classified reveal the ongoing problem of media either being uninformed of classification law or unwilling to follow up on questions. At the March 9th debate, Clinton said “It wasn’t the best choice. I made a mistake. It was not prohibited. It was not in any way disallowed, and as I’ve said and now has come out, my predecessors did the same thing, and many other people in the government.”
That is clearly not true. Only a few of Clinton’s predecessors even had email. Of those four secretaries, none had a private server in their home. What Clinton did was incredibly reckless in the use of a private server that was more vulnerable to foreign interception. Moreover, of those four secretaries, none used email as their exclusive system.
If Clinton means that a couple of predecessors sent personal emails, that is clearly true but that is obviously not at issue. If Clinton used the State Department system and just sent a few personal emails, this would not be an issue or the basis for such a massive investigation. Clinton used her own server in her own home in what is widely viewed as an effort to control her own communications.
Moreover the repeated reference to former secretary Colin Powell is obviously misleading. Powell was found to have sent a few emails now deemed classified. Clinton sent over 100. It is true that Powell said that the classification made no sense and that the emails were “minor.” That certainly supports the objection to retroactive classification but that is were the analogy ends. Moreover, there is certainly, as Clinton has argued, good-faith objections to over-classification by agencies. However, one of the most serious allegations in the email scandal is that some of the Clinton emails involved information that the agencies claim were “born classified.” Indeed, there are allegations that classified information “jumped the gap” from classified systems to the private email system. Moreover, the investigators have reportedly concluded that a good number of these classified emails were clearly classified at the time that they were sent.
The biggest problem however remains the failure of media to challenge the Clinton statement that she did nothing wrong if the information was not marked classified. That is clearly wrong and does not reflect the legal standard. It would be absurd to suggest that officials are only subject to these laws for marked documents. Clinton has insisted that “I never sent classified material on my email, and I never received any that was marked classified.” The key of this spin is again the word “marked.” I have previously discussed why that explanation is less than compelling, particularly for anyone who has handled sensitive or classified material. As I discussed earlier, virtually anything coming out of the office of the Secretary of State would be considered classified as a matter of course. I have had a TS/SCI clearance since Reagan due to my national security work and have lived under the restrictions imposed on email and other systems. The defense is that this material was not technically classified at the time that it was sent. Thus it was not “classified” information. The problem is that it was not reviewed and classified because it was kept out of the State Department system. Moreover, most high-level communications are treated as classified and only individually marked as classified when there is a request for disclosure. You do not generate material as the Secretary of State and assume that it is unclassified. You are supposed to assume and treat it as presumptively classified.
Indeed that understanding was formally agreed to by Clinton when she signed the “Classified Information Nondisclosure Agreement,” or SF-312, which states that “classified information is marked or unmarked classified information, including oral communications.” Otherwise, there would be massive exposure of classified material and willful blindness as to the implications of the actions of persons disregarding precautions. For example, there is not a person standing next to the President with a classification stamp in the Oval Office. However, those communications are deemed as presumptively classified and are not disclosed absent review. Under the same logic, the President could use a personal email system because his text messages by definition are not marked as classified. Classified oral communications are not “marked” nor would classified information removed from secure systems and sent via a personal server. Likewise, classified oral communications that are followed up with emails would not be “marked.” This is the whole reason that Clinton and others were told to use the protected email system run by the State Department. We have spent hundreds of millions of dollars to secure such systems.
If that was not enough, one has to consider that the Secretary of State has original classification authority because she generates classified communications and material.
It is bizarre that the media does not address the glaring disconnect between what Clinton is saying and what the law actually demands. SF-312 reflects the obvious standard that classified information does not have to be marked. More importantly, as President, Clinton could never allow subordinates to operate under such a ridiculous construction of the rule. It would mean that classified statements that she makes in a SCIF or in the oval office would be free to be released or discussed in unsecure forums because no one stamped her oral statements classified as they were uttered. Yet she has been asked this question dozens of times and has given the same answer with virtually no reporter raising the actual language of the federal law or the practical implications of what she is suggesting about the scope of classification laws.
I have rarely seen a major legal issue in a presidential campaign that is being discussed with so little connection to the actual laws or legal standards. I understand that politics can be a fluid and rather superficial field. However, law is based on actual statutes and standards. The disconnection between the actual law and these questions is disconcerting.
I got up late today and read the headline. I’m sick now. Seriously. I cannot see any way out of this. With Donald Trump on the Republican ticket, HRC will easily win.
Clinton is correct. There will be no indictment. And the prosecutors know this. So nobody in the government is irritated by her statements in the slightest. They know them to be true. It’s all just a game to make her come out smelling like a rose. When all is said and done, the prosecutors will announce that the investigation turned up nothing and all is well. Of course, nobody is discussing how the game really works. And that is that Clinton has the dirt on all sorts of people high up in government that protects her from her own misdeeds. She’s untouchable. They know if she goes down, THEY go down too. Thus, nothing will happen. You have to understand how our system of corruption in the US Government works to understand this. You’re living in a fantasy world if he think anything else, other than what I’ve stated, is true.
@Ron
The heck with that, how about prosecutions of the crooks in the 2008 financial crisis??? Reagan and BushOne — over 1,100 financial crooks indicted, and convicted 839 white collar crooks convicted. And that was a smaller crisis! The New York Times compared that to the 2008 crisis here— easy read with bullet points:
http://www.nytimes.com/interactive/2011/04/14/business/20110414-prosecute.html?_r=0
Squeeky Fromm
Girl Reporter
Why no mention of the most obvious example of selective law enforcement: Obama’s AG Eric Holder refused so much as a hearing on war crimes, violations of the Geneva Accords, the Nuremberg trial conclusions, international treaties, etc.
Violations of international and national laws were so obvious that the average layman could clearly conclude that people like “W”, Cheney, Rumsfeld and Rice should be tried for war crimes.
Hillary does not answer. NK makes pre-emptive nuke strike threat against U.S.
Laws apply to normal people – not super important people like HRC.
@Jonathan Turley
Why do keep finding it “bizarre” that the press is not hopping on Hillary’s lies and obfuscations??? Haven’t conservatives been screaming for years that the Main Stream Media is in the tank for the Democratic Party, and the “liberal agenda.” But let’s stretch the point a little. . . If the Main Stream Press is covering up for Hillary, then is it unreasonable to think they are also covering up for the Global Warming advocates? And the whole White Privilege/BLM race meme? Just to name two issues.
And if you are finally coming around to the point of questioning the Main Stream Press yourself, start asking why people on my side of the political spectrum are sooo resistant to Global Warming, for example. What reason do we have to believe anything we read in the New York Times, or watch on CBS/ABC/NBC/CNN/MSNBC news???
Welcome to the Skeptics!
Squeeky Fromm
Girl Reporter
Well, my “friend” Sacks Roamer, The Unknown Blogger from the Pansies For Plato blog has actually obtained pictures of Hillary’s Second Email Account from Guccifer! Some cut and paste ups!
Just received these pictures from the hacker known as Guccifer from his operatives, and his secret hidden webcams! This first shot shows the transportation of major component of Hillary’s “Personal Email Account.”
https://pansiesforplato.files.wordpress.com/2016/03/hrcpersonalemailacct.jpg?w=640
The next picture is actually from inside Hillary’s Chappaqua residence!
https://pansiesforplato.files.wordpress.com/2016/03/hrcpersonalemailacct2.jpg?w=640
This is a real scoop for us here at Pansies For Plato! Nobody else has these secret pictures! I have never seen a “personal email account” that you could actually reach out and touch! Oh, the Wonders of Technology!
Squeeky Fromm
Girl Reporter
The junk in Hillary’s closet
1. Egypt President Hosni Mubarak and failed Arab uprising to over throw him.
2. Syrian President Bashar al-Assad. He’s a reformer and nice guy.
3. Arms deals to Clinton foundations donors.
4. Clinton –Backed Honduran regime and then picks off indigenous leaders.
As International Business Times reported last year, the Clinton-led State Department approved arms sales and transfers to a slew of human-rights-abusing regimes,
which also just so happened to have donated large amounts of money to the Clinton Foundation:
The Saudi deal was one of dozens of arms sales approved by Hillary Clinton’s State Department that placed weapons in the hands of governments that had also
donated money to the Clinton family philanthropic empire. … The State Department formally approved these arms sales even as many of the deals enhanced the
military power of countries ruled by authoritarian regimes whose human rights abuses had been criticized by the department. Algeria, Saudi Arabia, Kuwait,
the United Arab Emirates, Oman, and Qatar all donated to the Clinton Foundation and also gained State Department clearance to buy caches of American-made
weapons even as the department singled them out for a range of alleged ills, from corruption to restrictions on civil liberties to violent crackdowns against political opponents.
Hillary and Henry Kissinger
Hillary Clinton for years has been one of the world’s most stalwart friends of some of the world’s worst despots and war criminals, making her and her campaign
a very odd vessel for demonizing others for their links to and admiration of human-rights abusers.
People work in rooms like bank vaults, without windows, to safeguard the information that she casually sent out via private email, uploaded to the Cloud, and then lied about. Why the heck are they going to all the trouble, then, if you can just upload it to the Cloud and face no consequences?
Professor Turley, you just answered your own question:
“In fairness to Clinton, there remains the question of intent and whether she knew or should have known of any violations.”
“The problem is that it was not reviewed and classified because it was kept out of the State Department system. Moreover, most high-level communications are treated as classified and only individually marked as classified when there is a request for disclosure. You do not generate material as the Secretary of State and assume that it is unclassified. You are supposed to assume and treat it as presumptively classified.
Standard_Form_312_2013-7.pdfIndeed that understanding was formally agreed to by Clinton when she signed the “Classified Information Nondisclosure Agreement,” or SF-312, which states that “classified information is marked or unmarked classified information, including oral communications.” Otherwise, there would be massive exposure of classified material and willful blindness as to the implications of the actions of persons disregarding precautions.”
So, yes, she would have been well aware that she was deliberately and willfully in violation.
Of course she will never be indicted. She is the Teflon Queen, and I do not see Obama pursuing justice. That has nothing to do with her guilt.
Secondly, she blatantly lied about her “predecessors doing the same thing”, and the media let it pass. Again. She has trained them well. She has been caught lying so many times, you would think she would have lost all credibility. Perhaps at some point, she has started believing her own lies.
I know you guys remember this. I guess we could change some words and add “marked” and it might sound the same?
“It depends on what the meaning of the word ‘is’ is. If the–if he–if ‘is’ means is and never has been, that is not–that is one thing. If it means there is none, that was a completely true statement….Now, if someone had asked me on that day, are you having any kind of sexual relations with Ms. Lewinsky, that is, asked me a question in the present tense, I would have said no. And it would have been completely true.”
Hillary, in 2010 on North Korea torpedo attack that killed 46 South Koreans. Were there any classified emails sent to private email server on this? Hey Hillary, 6 years later NK have got the nukes.
Nicko,
I guess if the Cleveland Plain Dealer says it so it must be so. Who on the editorial board is a practicing constitutional attorney with security clearance. However, as Lawrence O’Donnell opined, most progressives must be shuddering when their presumptive leader looks for ways to avoid the Freedom Of Information Act. The FOIA is a law championed by progressives to bring the working of government into the light of day. Seems to me she was looking for ways to avoid having “mere” citizens exercise their rights under this law.
As George Orwell said, ‘all citizens are equal, some are more equal’.
I think the problem for many people is that they don’t understand what an email server is. They think she was just sending email from a personal address or something, and they do not understand that she archived all her government emails in an unsecure location where government had no access to it. People who understand what an email server is clearly understand that Hillary Clinton broke the law. It would be analogous to her moving all her filing cabinets in her State Department office to her home so that the federal government no longer had access to her files.
From SF-312 (the 2013 revision):
“I have been advised that the unauthorized disclosure, unauthorized retention, or negligent handling of classified information by me could cause damage or irreparable injury to the United States or could be used to advantage by a foreign nation. I hereby agree that I will never divulge classified information to anyone unless: (a) I have officially verified that the recipient has been properly authorized by the United States Government to receive it; or (b) I have been given prior written notice of authorization from the United States
Government Department or Agency (hereinafter Department or Agency) responsible for the classification of information or last granting me a security clearance that such disclosure is permitted. I understand that if I am uncertain about the classification status of information, I am required to confirm from an authorized official that the information is unclassified before I may disclose it, except to a person as provided in (a) or (b), above. . . .
“I have been advised that any unauthorized disclosure of classified information by me may constitute a violation, or violations, of United States criminal laws, including the provisions of sections 641, 793, 794, 798, *952 and 1924, title 18, United States Code; *the provisions of section 783(b}, title 50,
United States Code; and the provisions of the Intelligence Identities Protection Act of 1982. . . .
“I agree that I shall return all classified materials which have, or may come into my possession or
for which I am responsible because of such access: (a) upon demand by an authorized representative of the United States Government; (b) upon the conclusion of my employment or other relationship with the Department or Agency that last granted me a security clearance or that provided me access to classified information; or (c) upon the conclusion of my employment or other relationship that requires access to classified information. If I do not return such materials upon request, I understand that this may be
a violation of sections 793 and/or 1924, title 18, United States Code, a United States criminal law. . . .”
She didn’t give back all of the emails on the server. She had a duty to confirm the non-classified nature of all emails on the personal server, and she said last night that none of it was “marked” classified.
Her license to practice law should be suspended for five years. Blow jobs in the Oval Office are one thing to tie up Congress for four years, but just last night, she appears to have intentionally misrepresented the law by saying it was not “marked” a not confirming the non-classified nature of her emails prior to disclosure on a private server, let alone whether downloading to a private server was a crime.
The Union of American Stenographers very much objects to the use of the term, “Journalists” to describe their holy activity regarding a divine destiny where anything other than strict down-to-the-phoneme faithfulness to each and every God inspired syllable of her dynastic highness-issimoness should result in one’s tongue being summarily ripped from the mouth.
For Rube consumption: Just follow MSNBC and you’ll be fine.
Sorry Mr. Turley. but emailgate has always been rightwing GARBAGE and you ought to be ashamed of yourself for carrying that water.
http://www.cleveland.com/opinion/index.ssf/2016/03/hillary_clinton_in_the_democra.html
The Cleveland Plains Dealer just just endorsed Hillary Clinton, while admitting it previously overhyped the email pseudoscandal and while noting she broke no laws:
Our editorial board has been highly critical of Clinton’s decision to shield her emails from public scrutiny even as the State Department, which she led, was trying to archive its emails. When accusations first surfaced last year that intelligence secrets may occasionally have passed through her server, we editorialized that, if true, such inattention to the handling of classified material along with the secretiveness that caused Clinton to use a private email server in the first place constituted a likely “disqualification from the White House.”
We now acknowledge that to have been an overstatement. The server was ill-advised, but no one yet has found her actions to be illegal. Those decisions do not disqualify her from the office. Instead, they are illustrative of flaws Clinton can, and must, correct.”
The operative word is pseudoscandal “. yet here you are.
Reblogged this on Scoop Feed.
Judge Napolitano on Clinton case – someone will be indicted soon