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.
The obvious downside to Clinton (and Obama) flouting the law is they somehow think the bourgeois US citizens will continue to voluntarily comply with the millions of regulations tethering us.
No, this is a sign that the US Republic is dead.
There aren’t sufficient police or regulators to coerce compliance when the culture no longer supports it, unless Hillary is planning on going full-police state.
KCFleming – there is some talk that Obama may refuse to step down.
There should be much MORE concentration on the FOIA regarding Clinton AND Obama’s likely contravention (i.e., serial law breaking).
If anyone really cared about national security, homeland security agencies at the local, state and federal levels would be focusing on the Zika Virus mosquito threat, lead in drinking water poisoning young children in Detroit and other cities. Our roads and bridges are also falling apart. Stem-Cell research to cure Diabetes, Parkinson’s Disease and cancers.
These threats far exceed other national security threats, including terrorism. Facebook has a great page titled “War on Irrational Fear” which lists several other top threats than almost nobody is talking about today.
Instead of increasing agency budgets we should make them focus their existing resources on these top national security threats.
Isaac is one of those people who would support Hillary after the Huffington Post published pictures of her BBQing kittens in her backyard.
By the way, is intent an element of criminal negligence?
If Bill believes this is it credible that Hillary does not? Why would anyone vote for a Presidential candidate who national believes national security is a game?
According to the material released by Chelsea Manning and Wikileaks, most of the information kept secret is to protect government corruption, scams, and incompetence. No matter how hard government tries to keep its corruption, scams, and incompetence secret, the public can easily see the results of that behavior. Where Hillary went wrong is not in using an email server but in facilitating senseless carnage around the world.
Forgotten quote from former Nuremberg Prosecutor and U.S. Supreme Court Justice Robert Jackson:
“The prosecutor has more control over life, liberty and reputation than any other person in America. His discretion is tremendous…While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst…If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted.”
Since the so-called “War on Drugs” and “War on a Tactic” after 9/11, the U.S Justice System has steered nearly 180 degrees off-course from the lessons of Justice Jackson and the Framers blueprint of the American Justice System.
Today we are reaping what we sowed and it’s a real mess! Many Americans think the legitimacy of the Justice System today is a joke having nothing to do with justice.
The real root causes are we no longer have an “Independent Judiciary” at the federal and state levels or a constitutional “rule of law”. Judges are essentially chosen by campaign contributors to police politicians employed by the same people.
The one thing both parties agree on is that they are both opposed to the constitutional “rule of law” form of government and we no longer have an Independent Judiciary to provide judicial review of the political branches. These guys violate federal laws with impunity because it’s a “faction vs. faction” system of government instead of a constitutional “rule of law” government.
Members of Congress also appear to be immune from the federal “Hatch Act” violations. For example: using pure politics to obstruct constitutional duties like appointing judges (backed by several decades of strong legal precedence). It would seem many members of Congress could be indicted for Hatch Act violations today if we had a rule of law system.
Many Americans have simply lost total faith in the Independent Judiciary and DOJ to fairly administer justice and provide judicial review.
Bernie Sanders is not dumb. He’s waiting for FBI, AG indictment. Like these King Vultures, lords of it’s domain. They wait for feeding time. When appropriate.
Turley didn’t say anything about his being counsel for Clinton. He simply pointed out the difficulty for any counsel who has that kind of an arrogant not to mention loose cannon client.
True, the Clinton’s are indeed “above” the law, but appearances to the FBI and other agencies (that is, self image) are far more important than the law itself so as they used to say to W.C.Fields, “Please stop peeing over the hotel railing on the passers by below – but thanks for the ‘make it go away’ money and don’t worry about a thing.”
JT was “counsel” for Hillary? That is what it says. So. If you were counsel or “are now” counsel then it seems odd and perhaps traitorous as an attorney to criticize your client on this atty client matter. What do you people on the blog think?
FBI is connecting dots with Clinton Foundation donations and State Department deals under Hillary. General Petraeus didn’t have a money machine like the Clintons.
Still, the American people, with very short memories, will ELECT THIS SCUM. Hill and Bill are low class….but they have the guts to run for anything and everything……because lying to them is the oxygen that keeps them going. They really must think their fellow Countrymen have no brains what so ever…..can you imagine how they must laugh at the stupidity of the U.S.?????? All the time fattening their Bank Accounts. From the very beginning, the Clintons had ” vaulting ambition, which o’erleaped itself and fell on the other….” It’s not their fault, that they are given the highest office in this land. The ones, who put them into it, need to be responsible for their part, too. When are the voters going to be informed adequately.? Or is it a case of one like minded people, voting for them.?
Bill is mocking the investigation because he knows it will end with no action taken. He and Hillary are well and truly above the law. There is only one, immutable law that even applies to Clintons, as it did to Stalin, Napoleon and so many more invulnerable politicians. Someday even the Clinton scam must end.
A relative of mine is actively involved in the Bernie campaign at a local level. The stories they tell about Hillary’s people rigging the rules are quite interesting. Slimey is not the same thing as illegal, however. I don’t like her but will reserve judgment as to whether she committed a crime.
If she gets indicted before Obama leaves office, expect a pardon. To quote Gilbert & Sullivan: ” Now pardon us or die!” (Ruddigore)
The bozo Republicans who have repeatedly gone after Hillary without a meaningful basis for doing so (“Benghazi!”) have made it harder to go after Hillary criminally for legitimate reasons, if those reasons exist.
They are playing to the home team. Hilllary has been losing voters and it has not been pretty. Bernie is going to stay in until the end and CA is a state she could lose.
What do you expect from a person, like Bill Clinton, with a list of purported sexual assaults and rapes, which span decades and decades, who has never been called to account for those numerous and repeated crimes against an assortment of women? Some of the charges date back to his time in college, yet he remains, untouched and immune. Of course he views the system as one big game, with the investigators playing the role of jokers. Throughout the endless list of scandals, in which both he and his wife have been embroiled, never once were either held accountable. Others took the fall. Others served prison time. The gruesome twosome made sure of that. Those that wouldn’t or couldn’t, for whatever the reason, fall on the sword, up and disappeared. They suddenly committed suicide, with gun shots to the backs of their skulls. They were passengers in planes that suddenly, and, unexpectedly, crashed or exploded, mid-air. They were murdered, in cold blood, in a variety of situations. Dead men don’t talk. Why think that this situation, with Hillary, should be any different? I’m not surprised that Bill believes that the system is just one big game–I’m just surprised that he had the b@lls to say it, in public. He was, most probably, having a senior moment. Old geezers do that, you know. The screen, that is supposed to filter his thoughts before they land on his tongue, must be riddled with holes. Perhaps it’s advanced and untreated gonorrhea? Who the heck knows? He looks incredibly old, frail and weak, nowadays. Maybe that’s because I’m old enough to remember when the old b@stard still had his swagger.
This is such a waste of time. Time and every effort of the whiners has proven this to be a dead issue. Let it go Turley.
ABSOLUTELY!
Once succubus Hillary is in the White House, Bill (“the Cigarman”) will be back too, playing his adolescent womanizing games.
Both scum belong in jail. Both have for far too long escaped punishment. Let’s hope Bill’s days are numbered and waning!
Never forget all the crooks that the Cigarman freed on his final half-day in the oval office.
If Hillary gets the nomination, Trump is virtually assured the White House!
I wonder, truly, what shall Queen Hillary say in response to Donald, when he points out that Bill had several documented proven chances to take out OBL, and yet Bill refused. One of several such cases was Sandy Berger himself, working under Bill, who stood in the CIA’s OBL search unit with Michael Scheuer’s finger on the button to kill OBL, and Sandy said, “No.”
Sandys was arrested and convicted of attempted theft of docs at the NSA. The docs he attempted to steal confirmed that Bill kept OBL alive when Bill had several chances to kill OBL. At the very least this was a crime of negligence of epic proportions, that directly caused the death of 3k Americans, and our current state of misery in the ME, including wars that cost us about $2T and thousands of military deaths. At worst, Bill committed treason worthy of federal charge and the worst potential penalty, whatever that is. (See his so-called oath of office.)
Bill kept OBL alive after OBL’s first attempt at the NY Tower, after OBL killed Navy men on the USS Cole, and after OBL killed 281 Marines in N. Africa. If the President intentionally keeping such person alive, after given the chance to kill him several times, is not a felony, there is no such thing as a felony.
Bill and the 9-11 Commission made up a story of a wall of separation between the CIA and FBI, and Bill blamed his crimes on this so-called wall of separation. This is a lie. 24/7 an FBI agent worked in and was present in the CIA’s OBL search unit office, so says it’s then-Chief, retired CIA Agent Michael Scheuer.
What can one expect from a piece of scum who illegally electioneers for his wife, disrupting the polling station and inconveniencing legitimate voters by his SS men?