I have previously written about the peculiar position of being counsel for Hillary Clinton when your client, her advisers, and allies mock the massive federal investigation that continues into her reckless use of an unsecured personal server for her official communications as Secretary of State. As counsel you usually strive to show investigators that your client understands the gravity of such violations and accepts responsibility for serious mistakes of judgment or action on her part. The Clintons however have been yielding to a political rather than a legal narrative in mocking the investigation — something that truly must mystify those FBI agents working the case. In the latest such example, former president Bill Clinton used a speech in Kokomo, Indiana to dismiss the FBI investigation is nothing more than “a game.”
In his speech, Bill Clinton told the crowd:
“If you’re driving in a 50 mile-an-hour zone, and a police officer pulls you over when you’re driving 40, and says, ‘I’m sorry, I’ve got to give you a ticket because you know the speed limit here should be 35, and you should have known it.’ So, everybody’s all breathless about this, look, this is a game.”
The comment repeats what is a manifestly incorrect reading of the controlling law. The emails never had to be marked to be considered classified. Yet, Hillary 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.
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. It is certainly not a game.
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 granting of immunity to a prior aide of Clinton.
That brings us back to this continuing narrative of the Clintons and supporters in belittling the investigation and its underlying issues. What Clinton did was, at a minimum, reckless and entirely dismissive of national security interests. To put such secrets at risk for mere convenience or a desire to control your emails only magnifies the lack of judgment. To be calling the investigation a “joke” only reaffirms that same lack of judgment and understanding that led to this breach in security. It may work well as a stump speech but it is truly horrible legal position.
bam bam,
I’m not entirely sure what you’re getting at there. If you’re referring to jail time, then yes, it’s entirely likely that I’d go to jail for the same offense. It would depend on the severity of the offense of course, but it’s possible, and probably likely.
No cat has my tongue. Not sure what that’s about.
-AAO
545499a….is that classified? You just published it.
Give it up, Turley. You repeat yourself.
tovangar: Good point.
QUOTE: “In fairness to Clinton, there remains the question of intent and whether she knew or should have known of any violations”
Prof Turley how do you square your statement above with the NDA Clinton signed?
NDA: http://freebeacon.com/wp-content/uploads/2015/11/HRC-classified-NDA1.pdf
The difference from the Petraeus case is thorough premeditation: Clinton planned and executed a private server arrangement specifically to avoid secure channels, and instead routed emails, many of which, as Secretary of State, would necessarily be confidential in nature, through her own non-secure systems and non-clearance holding personnel.
Clinton will only be charged if (and only if) she has pissed off the wrong person or group within the elites. Otherwise, Bill is correct that it’s all a joke, just like the rest of our “justice” system. With Obama looking forward regarding war crimes while busily engaged in committing his own, every powerful person knows they are untouchable unless they piss off the wrong, more powerful person or group. It’s all rigged. They know it.
What I find galling is that people defend the indefensible. Illegality and cruelty committed by the powerful will only stop if ordinary people stop excusing it. I don’t care which team you belong to. People in the US need to come to Jesus and decide what we really want. If we want war criminals as president then that is exactly what we will get. If we want cruel people, we will get them. If we want people who care nothing for the rule of law, we will get them.
Now maybe we will get them no matter what. After all, the Green Party is willing to sell out it’s platform in exchange for Bernays Sanders as president with Jill Stein as his VP. Seeing that Bernays is all for targeted killing and has Mr. Shock Doctrine himself, Jeff Sachs as a main political advisor, ask yourself, how these two things mesh with the Green party platform. Meanwhile a member of the socialist party is pushing a petition to put him on the Green’s ballot. what this looks like to me is that everyone, legacy or third party has been bought off and the elites have covered all their bases.
Still, if voters decide that we have a set of values which we aren’t willing to sell out, no matter what, then perhaps we have a small chance at restoring the rule of law. If we keep having “ethics” which are conditioned by membership in a party instead of having real ethics which means you’ve thought something out and you don’t think it’s O.K. when your party does it, that you’ll stand up to the powerful when they are committing wrongdoing no matter what, then you have a chance at change. Until then, looks to me like Billy Bub has it right.
Mr. Comie(forgive me if I spelt his name wrong), the head of the FBI is a man of top shelf character. He stood up to George Bush and now he is standing up to the Clintons.
Why Secrecy Rules Apply to Everyone
Federal agencies relentlessly pursue suspected whistleblowers, while self-serving politicians escape punishment.
By Philip Giraldi • April 19, 2016
http://www.theamericanconservative.com/articles/why-secrecy-rules-apply-to-everyone/
In the 1970’s the congressional Church Committee was investigating intelligence abuses and also warned about the dangers of excessive secrecy and over-classification.
Essentially when too much stuff is labeled secret, nothing is secret. The committee said that if you hide the family jewels with the toothbrush, the family jewels might get lost with the toothbrush in the excessively large haystack [paraphrased].
The moral of the story was don’t hide the petty stuff with the genuinely important items (like we have done since 9/11).
Be honest, anarmyofficer–
You would’ve not only lost your security clearance and/or been sent packing from the military. There would’ve been dire consequences for you had you dared to conduct yourself in the same manner as Hillary. You would’ve lost your freedom, as well. Why not state what you would’ve, in fact, faced, had you committed something as illegal and as damaging to national security? Cat got your tongue?
From another person with a TS/SCI: 9 times out of ten you can identify classified emails without the need for markings. You don’t need a marking to know that the information should or should not be on a classified system.
That being said, if I or any of my peers had done this same thing, we’d have lost our security clearance and been kicked out of the military. It’s something you just don’t do when you’re given the trust that a clearance gives.
This whole thing is akin to a slap in the face to those of us who deal with classified information, and know the rules about handling it. “Why should we have to follow the rules, when the people in charge don’t follow them?”
-AAO
I commend JT for staying on this. Any objective person understands the seriousness of these allegations. As for the Clinton’s handling of this investigation. They are visceral politicians. EVERYTHING is handled politically. EVERYTHING they say and do is political. What they eat and drink is political. Where they vacation is political.
We can’t get to see Obacala’s school records do you really think Hilly will face what she deserves?
She will skate and idiots will elect her.