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 heard from Judge Napolitano, who heard it from Tom Delay, who heard it from a secret FBI source, who heard it from Vince Foster’s ghost, who heard it from a zombie concatenation of murdered state troopers, that any day now, blah, blah, blah. Wake me up when the news comes on, would ya?
These comments pretend that corruption can continue indefinitely with no consequences. This is an Atheistic concept, but Atheism is just another form of corruption. All this rot stinks to high heaven and then the hammer of God comes smashing down. But Atheists think that only stupid believe in God so this comment will be laughed at. That won’t change the truth of God’s law. So whether it’s heads on pikes, like the old days, or something like the Christians hanging in cages to be burnt, victims of Hillary’s moderate beheaders in Syria, somehow or other, I am certain that Hillary and all of her Devil Army will be indicted and it will be a big day of celebration for Americans and the world. The arrogance is just screaming for a smack down.
@Tin
LOL! still snickering 🙂
Squeeky Fromm
Girl Reporter
I believe a guy named Pagliano should know when to keep his mouth shut. But perhaps the Democratic National Committee will leave a dead fish on his doorstep. He’ll get the message.
Is he a republican? I doubt he likes crony capitalism….or any of the talk of a brokered convention. Could be my rose colored glasses bc i refuse to pay for an annual optometry just for a pair. I prefer to believe he is a patriot. He gets up and encourages his troopers to get up each morning to do right. And his compass of right is ” for the people” you love. If you love someone and think their vision is failing…..you don’t say its failing because of some one year optometry law passed for cronies. Its failing because it is. I want to believe comey is a patriot. Then again he’s after apple. And lets not forget if china really did do the opm breach…..a spy in the sky breach….why would they compromise it with petty id theft that our feds dont go after. Because the feds would rather the opm breachees make their job easy. If you were breached just tell our version of ” lifelock” everything we don’t have handy. Shisters. Subterfudge.
FBI Director Comey is a Republican, so he’s going full bore on the HRC investigation, much to the annoyance of the White House. There was an article about this in today’s “The Hill,” a D.C. online political newspaper. But when the FBI referral is walked across the street to the DOJ, it will be deep sixed. And not just because of the Obama/Lynch obvious political interests. The DOJ has no interest in bringing cases that it will lose. Especially ones that are so high profile. And there’s not a snowball’s chance in Hell that Hillary will ever be convicted of anything by a D.C. jury, which, due to Washington’s demographics, will be composed primarily of middle-aged black women. It will be like the O.J. jury all over again. They’ll be asking her for her autograph and planning a victory party before the testimony has even begun.
She’s too big to jail. Things that big aren’t jailed. Like even if doj goes after big oil for climate change denial….no one in those companies is going to jail. She’$ part of a company. Me on the otherhand…..i just want to turn myself in…because i’ m a climate change denier. And that denial in itself is the crime. Had i never denied climate change verbally or on the internment web i’d be innocent despite my actions.
randyjet:
“SO please, just because you hold a clearance does NOT make one an expert on such things.” Yes, it is entirely possible to be surprised by an item going classified. That is why you do not get to use your own email server, thus circumventing State’s review entirely. I don’t have a problem with any items that were deemed harmless at the time, that was sent to State email. That’s not the issue. The issues are:
1. She used her own email server, which prevented State from having access to everything she typed
2. Classified computers do not talk to non-classified computer systems. For Top Secret information, which is often born classified, she would have had to originate the email chain herself, or her own staff did, because you cannot forward such information from a classified computer system. This is obviously not information that was deemed harmless at the time.
3. When you leave State, you give up two piles of emails. Those you deem personal, and those you deem State’s business. State reviews both piles and either agrees or disagrees with your assessment. Hillary skipped that who process. She provided them exactly zero documents upon her exit. After more than a year, then she printed out what she felt State should see, and withheld the rest. As this latest data dump shows, she withheld emails that had Top Secret info from State.
4. She backed up her private email server to the Cloud, which gave an unbelievable number of people access to Top Secret information. Again, we are not talking about a disagreement about minor things being deemed confidential. This is Top Secret Human Intelligence, which she would have been well aware of at the time.
5. She directed staff to cut off the classified heading of a document so it could be sent via unsecured fax. That, alone, means jail time to the Average Joe Who Is Not Clinton
6. I seriously doubt that Clinton’s grocery list falls within the category of information so Top Secret it cannot even be released to the Senate. They have specifically referenced SAP HUMINT, which is obviously not her grocery list.
My Dad had security clearance with the Pentagon. He STILL will give me the old “I can neither confirm nor deny” line about various questions until and unless I provide him with proof that it has become declassified, which he would have to verify himself. So far, I have been unable to get him any proof that any of the fun stuff has been declassified.
Can you imagine a new hire pulling this at State? After going through the rigorous training on the handling of classified information, signing an acknowledgement that you can go to jail for violations, some new hire says the following. “You know, I think I’m going to skip all this. I will send Top Secret information on my own private email, skip the multi million dollar State system with its pesky classification marking system, and I’ll keep the server at my house where people with absolutely no security clearance whatsoever will have access to it. Then I will block State from ever accessing it. And then I will wipe it completely clean rather than give it access. Okey dokey?”
Karen writes, “Can you imagine a new hire pulling this at State? . . . ” That’s really the issue – the double standard – although many downgrade her conduct to something much less than a scandal as she does in calling it a “mistake.” Imagine the arrogance she’ll take with her to the White House. Of course, quantitatively, hers isn’t any more than that Drumpf carries in his baggage or Cruz, who looked like a little wet puppy last night, in his.
@VAM
You could have saved a lot of time, and electrons, and just said:
It’s all a vast, right-wing conspiracy!
(If it was a good enough lie for our parents, it ought to be a good enough like for us, right!) 🙂
Squeeky Fromm
Girl Reporter
@Darren
I think you are right about the public corruption stuff. C’mon, you’re a Sec of State, and your “foundation” is getting millions of bucks from foreigners???
Why is it all the people who are sooo livid about Citizen’s United, because they realize that money=influence, suddenly become math-dumb when the money is going to Hillary and Bills’s foundation? Which I suspect is pretty much a scam to cover a lot of their personal expenditures, payoffs, and influence buying.
Squeeky Fromm
Girl Reporter
And most of the talking points are flat ass lies.
VAM is a Clintonista troll. Hit all the talking points.
@randypaperairplane
If HRC isn’t smart enough to know something is classified, then she wasn’t smart enough to be SOS or to become President. Which is still besides the point, because this goes way beyond just having a “second email account.” Hillary had a whole ‘nother computer away from the government computers to store her communications, classified or otherwise. C’mon, quit insulting our intelligence with the partisan defense stuff. Heck, I used to be for her myself, but how can any sensible person actually swallow her line of crap???
Squeeky Fromm
Girl Reporter
I am sick and tired of the attacks on clinton. She has been investigated how many times, grilled for 13 hours by a guy who himself used the same type of email server. Powell, and others also did. Anything classified at the time of her use was not classified then and after her service was made “classified”
The Koch Brothers and allies and Republican machine continues to lie, to attack, The Swift Boat Ads against Kerry are in the same vein as all the attacks and lies about Clinton. Remember, when the guy (Texan) who paid for those televisions to attack Kerry, died, it became known the entire video was a lie, just made to get the public who is so easy to lie to, believe them. Therefore whomever is paying you all to keep these lies going, they are not convincing people who actually can think for themselves and can fact check.
VAM – I have been following the bouncing ball on Hillary’s email shell game and she is guilty as hell. Also, the guy who set up the server farm and at least three of her aides are guilty of mishandling classified and secret material.
You really have your lips glued to Hillary’s pants suit, don’t you?
Darren – regardless of her actual guilt, I have grave doubts that she will face justice. I believe her politics are her shield with the DOJ, and wouldn’t it be the DOJ which actually files charges?
If the DOJ fails to prosecute a legitimate case for political reasons, I predict Hillary will claim it’s all a Republican conspiracy (again) and people will ignore the facts.
Karen – I think the FBI is going to go to the DoJ with a solid case against Clinton both on the emails and public corruption. I also think the DoJ is going to refuse to prosecute. Then some whistleblower in the FBI is going to leak all the material on Clinton to the public.
Since she had classification authority, should she be prosecuted for NOT marking something Top Secret when somebody thinks it should have been so marked? How about marking something Confidential when Prof Turley thinks it should be marked Top Secret or Secret? This leads to a very slippery slope which Prof Turley is willing to slide down on with abandon. SO please, just because you hold a clearance does NOT make one an expert on such things. I am struck by the FACT that Prof Turley has not raised these questions himself since he looks at the legal side of events. Some security folks would say that even her grocery list should be classified. Think that she should be nailed for not doing that? How about her e-mails to her friends and family? Once again, some spooks would aver that those too are or should be classified.
I suspect Hilary Clinton’s greater problem lies beyond this email controversy and will involve a possible indictment on public corruption charges stemming from her tenure as Secretary of State.
The number of personnel allocated in the investigation of Mrs. Clinton is far beyond what would be necessary, in my view, for the email question alone. Public corruption cases require considerable walking back of investigative leads and they tend to branch in many directions,. Also, the entanglement and opacity of the Clinton Foundation which private accountability entities have found very difficult to trace money will require many forensic accountants just to sort out the accounts and payees.
I suspect the FBI is trying to tie a nexus between favorable actions bequeathed upon entities benefiting from her State Department actions and subsequent “donations” to the Clinton Foundation, an entity for which she and her husband’s community property has dominion. There could also be malfeasances not currently known to the public.
My concern is that the process will be stymied by political appointees and politicians sympathetic to the Clintons or the Democratic Party. If this happens it will show certainly the legitimacy of the administration of Justice by the federal government and consequently its legitimacy.
The “everybody’s doing it” defense didn’t help me with the nuns when I was in elementary school. They made sure I didn’t forget the corrective lesson they taught me. Hillary needs the same unforgettable lesson.
@dutchjim
Don’t be so glum on Trump’s chances. If he wins the nomination, he can go one on one with Hillary. The press can’t censor his questions, or make sure he is not too rough on Hillary. He will go for her very exposed jugular. So far, the old biddy has just been playing in her own sandbox.
If she is NOT indicted, that is just more reason to vote for Trump, because most Americans will know she got away with it once again. Whether they will say so or not.
Squeeky Fromm
Girl Reporter
At 3 o’clock in the morning Hillary will be on the phone with her attorneys.