Case studies Part II(a): relevant precedents for the Clinton email investigation
[Part I can be found here. I found as I researched and composed Part II that, as I had suspected, to write it properly would take several weeks of solid work and end up the equivalent of a lengthy law review article. I would have to read the court opinions in case after case after case and analyze them in great detail in order to understand all the similarities and all the differences, and I just don’t have the time and energy to do that. I wish someone would, but it’s not going to be me.
Instead, I’ve written this relatively brief look at some of the cases, done in a cursory way that doesn’t dig into those details. So I apologize in advance if I missed something important. I also found that, even then, the post was getting so long I had to divide Part II into two further parts, a and b.]
In his statement announcing that he was not recommending the prosecution of Hillary Clinton, FBI Director Comey mentioned that other cases of mishandling classified information that have been prosecuted contained an element of intent (or quantity of material exposed, or obstruction of justice, or disloyalty) that he feels is lacking in the Clinton email situation. Although intent is not an element of the crime in the statute as written by Congress, Comey seemed to be saying that as far as prosecution is concerned, it should be and in fact has been in the past.
However, Comey didn’t offer any details of what cases he might be talking about, so we really can’t examine his thinking. But some writers have tried to fill that gap. Writers on the left have emphasized differences between those cases and Hillary’s emails, whereas writers on the right have emphasized similarities or even ways in which Hillary’s offenses were more serious. And of course before looking at the cases, one must always keep in mind the fact that intent was purposely left out of the statute as written by Congress; “gross negligence” was established as the standard instead.
Andrew McCarthy attempt to explain why this was done. It was not arbitrary:
…[L]et’s for argument’s sake concede Comey’s premise that [Hillary Clinton] did not intend to make classified information vulnerable to hostile hackers when she purposely caused its transfer from the government’s secure server system to her own woefully non-secure system. Still, the felony statute at issue does not call for proof that she intended the harm done to the United States. Prosecutors need only prove what Comey so ably outlined: Clinton purposely engaged in the reckless behavior ”“ the installation and use of an impermissible and amateurishly non-secure, non-government server system ”“ that made harm to the United States virtually inevitable…
In criminalizing the grossly negligent mishandling of classified information, Congress sought to accomplish two objectives: (a) the protection of national security; and (b) the admonition to officials privileged with access to classified information that they have a high obligation to protect the secrecy of that information.
So Comey’s focus on “intent” was highly unusual, because there was a reason that intent was considered by Congress to be irrelevant and “gross negligence” sufficient to make the acts criminal.
Now to some of the cases. The Petraeus case is probably the most high-profile, and here’s an article that tries to argue that Petraeus’ offenses were different and somehow worse than Hillary’s, or at least more amenable to prosecution:
But as Michelle Lee has explained, Clinton’s case really is not like that of Petraeus. As part of his plea agreement, Petraeus admitted to mishandling information that he had known was highly classified; lied to the FBI during its investigation; and admitted to doing that, too. Petraeus acknowledged that these things were “knowing and deliberate.”
Unfortunately, there’s a paywall I can’t get past in order to read the Michelle Lee piece for myself. But my immediate reaction from reading that summary is to note that, if these admissions were part of Petraeus’ plea bargain, in order to get that far he must have been threatened with prosecution—and prosecution on a more serious charge, at that. If the FBI had threatened Hillary with prosecution on a serious charge I wonder what information she might have disclosed (probably none, but then again she’s not Petraeus, she’s Hillary). Like Petraeus, Clinton certainly “mishandled information that she had known was highly classified” (Comey said as much in his statement), but she has not admitted to doing so because (among other things) she’s never been in a plea bargain situation, unlike Petraeus.
And as far as her lying to the FBI goes—well, we already know there’s no transcript of her interview. We know that Hillary has lied repeatedly about almost every aspect of her email system, although it’s unknown whether she lied to the FBI (lying to the press is not a crime). But it certainly doesn’t seem that Comey has a clue whether she did or didn’t lie to the FBI (watch this video from around minute 1:23.00 to around minute 1:24.30 to see what I’m talking about).
Even the generally Democrat-friendly Politifact can’t quite figure out which offense was worse, Petraeus’ or Clinton’s, which should tell you something. Those who think Petraeus did worse seem to rely on the fact that he lied to investigators—well, as I said, we already know Clinton lied to the press and Congress, and it’s more than possible that she’s lied to the FBI as well (although she was never threatened with prosecution as Petraeus was, so there’s no comparison in that sense, either).
What we do know is that Clinton didn’t just take some files or classified information and show them to one person she trusted. She set up an entire email system designed to circumvent the secure system, sent classified information to a number of people, and exposed the information to hackers galore all around the world. How on earth this could be construed as less serious than what Petraeus did is beyond me. Nor was it the least bit unintentional.
One of the most sadly comical aspects of Comey’s testimony yesterday in front of the House questioners was to say that Hillary Clinton wasn’t “sophisticated” enough to understand some of the classified markings on the emails. Comey’s argument was ludicrous:
I leave you with that for today. I hope to have Part IIb (the conclusion) tomorrow.
Comey agrees with me. Hillary is not very smart.
Actually she is consumed with greed and that’s what drove her bribery scheme with Bill. The private server was essential to run the scheme.
Two problems. The private server was discovered and it was hacked. She only spent $140k to secure her emails but it wasn’t enough. That’s where she was stupid. She didn’t know computer security and the people she hired didn’t either.
So, before this investigation Comey says he would have agreed that it’s preposterous to assume Hillary didn’t know that a “c” in parentheses meant something was confidential. But now, since this investigation, he thinks it’s “possible, possible” that she hadn’t a clue. How does one deal with such a person, who is obviously beyond embarrassment?
I meant to say “classified” rather than “confidential” above.
Great analysis, neo-neocon.
Comey needs to resign and then record a commercial along these lines,
“I have not prosecuted Hillary.
“Nevertheless, there sure as heck is no way that I would vote for Hillary Clinton, who is such an unsophisticated, extremely careless person, to sit in the oval office.”
Hillary Clinton’s violations are an order of magnitude more serious than Petraeus’s. Not even in the same league.
Comey’s intent ‘rationale’ isn’t merely ludicrous, it’s intentionally obstructive. He acted with intent and “malice aforethought”.
This is not a stupid man and he knows full well the legal parameters of Hilliary’s violations of national security.
Dilbert’s take is that Comey would’ve gone full bore ahead — but for the fact that Hillary is the nominee of the Democrat party to succeed Barry Soetoro.
If he pressed the issue — it would decide the election — all by itself.
An indictment — at even a reduced level — would kick Hillary clean off the ballot.
A prospect that has kept Bernie Sanders on the march.
( Sanders would likely pull MORE votes than Hillary — but the fix is in. )
It’s a certainty that Comey thinks that Hillary is stronger than Bernie — and that as it currently stands — the election is actually a toss-up.
( This will change once the MSM pours on the coals. I still rate Trump a 4:1 underdog. )
Scott Adams – bleah
Bill Watterson – that’s a cartoonist.
The FBI lost a great deal of my respect after the murder of a young boy and a woman holding a baby at Ruby Ridge; I already knew AFT was frequently a rogue, corrupt agency. Comey has IMO ended all confidence a reasonable person might have once invested in the FBI leadership. Oh well, cops and criminals are merely human.
Thank-you Neo for doing the research. The rule of law in the USA is now dead.
Erm, about Comey….
He has a long history — LONG history — of letting the Clintons off the hook. This will shock you:
http://www.wnd.com/2016/07/comey-has-long-history-of-clinton-related-cases/#!
Read how he handled the SANDY BERGER theft of documents related to Clinton’s dereliction in the 9/11 matter, from the National Archives! yes, COMEY was the guy who let Berger slither off the hook. And there’s a lot more…. see at the link.
The Comey history raises a sadly cynical question: Why was this person praised to us by so many public conservatives as “a man of unimpeachable integrity”? He’s pulled the Grifters’ chestnuts out of the fire for Years, and they had to have known this.
Sick-making.
Dennis,
I agree regards to neo’s research. With no disrespect intended, the surface sometimes tells all with no need for shovels. Which is not to say shovels and shovel weilders are not valued. Neoneocon is a resource that I cherish. Would I be POTUS I would want her as AG. Principled new brooms sweep clean and are on the extinction list.
“She set up an entire email system designed to circumvent the secure system”
A whole other crime… it’s spin from the FBI to not be investigating that as a criminal conspiracy.
It does boggle the mind that this is not material for an indictment. At the very least, it makes a case for Hillary being incompetent. Frankly, I have never regarded her as incompetent though I think she is corrupt but not incompetent. So… I guess I was wrong.
What is odd also is that this is the kind of mistake the anti-Trump people (including me) would have thought “The Donald” would make: use a private email server due to arrogance or incompetence or both and lie. But he didn’t do it. She did.
Hillary’s largest criticism against Trump is his not being suited for public office due to his character flaws and his lack of competence in government but again, she’s the one who make this mistake not Trump.
I guess it is also possible that the woman is paranoid for some reason, not clinically, but like Nixon. She’s the agent of her own destruction here and maybe it comes out of paranoia. Now, Hillary has had many enemies in the past, but still — this is a just a huge screw-up and put national security at risk. Her job was not to put our security at risk, if nothing else. So…
NOT GOOD
I am not a Trump person but this is making me think again.
liberty wolf Says:
“…Hillary has had many enemies in the past…
Hillary made most of her enemies herself. By all accounts she is an absolute terror to deal with unless you’re in her inner circle, uncompromising, rude, crude, insanely ambitious, and vindictive. Add in that she has been a fangirl of St Saul of Alinsky and his tactics since the ’60s, and we’ll get Barack II without the phony charm after January.
BTW, your sig is familiar from long ago. Volokh? Althouse?
I’m taking a break from serious (the resolution of the email scandal is depressing), and have decided to gameify the approach of the October Surprise!
Guess the date and time of it’s quadrennial arrival! Win something (I’m still deciding). Lighten up your gloomy lives with FUN!
http://rightasusual.blogspot.com/2016/07/guess-launch-date-for-october-surprise.html
Great analyses, Neo. Thanks for the effort and for sharing with us.
I’d like to comment on Comey’s comment about Hillary not being “sophisticated enough” to recognize the internal classification markings.
Having read a LOT of classified documents — mostly telegrams of the sort Hillary would have had on her email system — during a career in the Foreign Service, I have some insight into what he was talking about.
Telegrams that are sent and received through the Diplomatic Telegraphic Service start with a large and obvious classification header — SECRET or whatever. And this is repeated at the top and bottom of each page.
But if someone’s staff were to purposely remove that header, say by printing a document and physically snipping off the header, the page would lack those classification markings.
Nevertheless, (at least when I was in the service) telegrams and intelligence reports have internal paragraph markings as follows:
(C) for confidential,
(S) for secret,
(TS) for top secret,
and various distribution restrictions that indicate they are not to be shared with certain categories of people, like contract employees, for example.
I suppose it is possible the staff could have snipped off the internal markings, but that would be quite time-consuming. So it is possible one could have read State traffic for four years and not wondered about those letters at the beginning and end of each paragraph, and I suppose that is what Comey was suggesting. I think that is possible, but it does not speak well for the reader, especially when applied to restricted distribution intelligence material, which she handled, and for which she would have had a special “read in” briefing before and after getting the clearance.
Of course my experience is dated — I retired in 1997 — and formats might have changed since when I was in the Service, but I think internal headers are still in use.
I guess it is also possible that the woman is paranoid for some reason, not clinically, but like Nixon.
Just so everyone knows, the FBi sub director and other bureaucrats, engineered Nixon’s bloodless coup.
Beverly Said:
July 8th, 2016 at 11:01 pm
“The Comey history raises a sadly cynical question: Why was this person praised to us by so many public conservatives as ‘a man of unimpeachable integrity’?”
Because Comey is a member of the club. What Cruz calls the Washington cartel. It’s what they call the Combine in Illinois. It doesn’t matter if you have a D or an R after your name; club members look out for each other.
The club members of both parties vouched up and down for Eric Holder, too, at his confirmation hearing. And the club members of both parties on the committee let Holder get away with obvious lies. For instance, they asked him about his role in the sleazy Marc Rich pardon. The real story was that Rich’s lawyers contacted Holder directly, and Holder helped them go directly to Bill Clinton and all three argued Rich should get the pardon. Because Holder believed on of Rich’s attorneys could talk Al Gore into promoting him to AG.
That’s not how they do it, unless you’re in the club. The process for everyone else involves going through the DoJ and getting recommendations from the prosecutors in the case. And since Rich had fled prosecution and was a fugitive living the good life in Europe there’s no way the prosecutors, and consequently the DoJ, would have recommended anything of the sort. Back when this country expected a modicum of integrity from a President that would have been a deal breaker, and the President would deny the application. But then Rich’s wife had contributed a lot of money to Clinton. So they did an end run around the process and, well, you get what you pay for.
When the committee asked Holder about his role, Holder claimed he didn’t really know who Marc Rich was at the time. That was his story when Congress first investigated the Rich pardon back in 2001 and he was sticking with it. His story was that he had made an honest mistake, and if he had known more about Marc Rich and his case he wouldn’t have advised the President to pardon him.
Just one problem with that story. Eric Holder was the lead attorney back in the mid-90s when DoJ sued one of Marc Rich’s companies that had gotten government contracts but failed to disclose it’s relationship with Marc Rich. Since Rich was a fugitive then the company was legally barred from getting any deals from the government.
And Holder is such a attention prostitute he couldn’t resist getting in front of cameras and holding press conferences about the case or talking to newspaper reporters. In which he revealed he knew a lot about Marc Rich, including not just his business interests but also the details of his original tax fraud case. So he lied to the committee, they let him get away with it, and they confirmed Holder with bipartisan support. This isn’t too hard to find out, though. Nobody did any homework in Holder’s background and familiarity with Rich. So why even have the hearing if you’re not going to have basic information, such as knowing the real answer to questions you’re going to ask. I’m not an attorney, but they say a good trial attorney never asks a question unless he already knows the answer.
By “public conservatives” I take it you’re not buying the act. Neither am I. My operating principle is that they’re all a bunch of sleazeballs. If you’re going to ask the cynical question, why did they vouch for Comey? Remember they also vouched for and voted to confirm Holder and Lynch. It’s rigged, and these hearings and investigations are just a big show.
I’m not an attorney, but they say a good trial attorney never asks a question unless he already knows the answer.
Similar for good interrogators.
Good analysis,
Steve57 Says:
July 9th, 2016 at 7:21 pm
Thanks.