Clinton’s Judgment
by Mike Kimel
Clinton’s Judgment
Via the Washington Post, this quote from the NY Times:
Mrs. Clinton say she may decide to retain Ms. Lynch, the nation’s first black woman to be attorney general, who took office in April 2015.
The Post article goes on:
about the appearance of impropriety: Lynch remains the person responsible for reviewing and signing off on the investigation into Hillary Clinton’s use of a private email server as secretary of state.
Since then, of course, the FBI (which reports up to Ms. Lynch) has recommended against pressing charges and of course, Justice will be following FBI’s recommendation.
But which is the tail and which is the dog here? The FBI statement doesn’t exactly come off as a clean bill of health. In fact, it reads as if the FBI director was ordered to let a perp walk, and decided to vent about it. About the nicest thing he said about Mrs. Clinton was this:
Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.
NBC did a fact check, which included this gem:
A look at Clinton’s claims since questions about her email practices as secretary of state surfaced and how they compare with facts established in the FBI probe:
CLINTON: “I did not email any classified material to anyone on my email. There is no classified material.” News conference, March 2015.
THE FACTS: Actually, the FBI identified at least 113 emails that passed through Clinton’s server and contained materials that were classified at the time they were sent, including some that were Top Secret and referred to a highly classified special access program, Comey said.
Sounds an awful lot like saying she lied, doesn’t it? And the mention of “classified at the time they were sent” contradicts a statement Clinton made to the press about the emails being upclassified later.
And the emailing of classified material denial was done more than once, as NBC’s piece goes on:
CLINTON: “I never received nor sent any material that was marked classified.” NBC interview, July 2016.
THE FACTS: Clinton has separately clung to her rationale that there were no classification markings on her emails that would have warned her and others not to transmit the sensitive material. But the private system did, in fact, handle emails that bore markings indicating they contained classified information, Comey said.
Now, Clinton would probably have at least considered keeping Lynch on regardless of the whole email investigation. But to announce Lynch is being considered right before the findings are released? If Clinton were, in fact, trying to influence Lynch to lean on the scales, this would be the most shameless possible way to do it short of handing over a suitcase full of cash on live television. And as far as I can see, there are only two explanations why anyone would act in a way that perfectly mimicked a transparent attempt to influence the AG:
1. The person doing so is trying to influence the AG
2. The person doing so has incredibly poor judgement
Am I missing something? Is there a third option?
If Clinton were innocent Obama would have allowed it to go to trial a year ago.
I have been around classified since 1972, as well as negligent property loses, no one ever asked if the negligent had intent.
Rigged system, shorter the only real debate among the so called liberals is with an independent.
Mike:
Excuse my legalese and I am pretty sure Bev and JackD would agree with me. In any case this will be one statement as I am not interested in thread building.
Read what was said:
With that being said, it appears to me the burden of proof is with the prosecution. It does not appear they do not have enough evidence in which to prove intent. Was Bill Clinton an idiot, yes he was by visiting the AG. Did HRC stupidly use a private account, yep! This is not without precedent either. Recall the 22 million emails which disappeared off of a RNC server which was used by AG Gonzalez and other higher ups during the Bush administration in which private citizens such as Karl Rove had access to. Collin Powell did similar. We have a government which believes the law applies to citizens and not to them.
I am not going to vote for Trump and I will be damned if I will allow widow-peak Ryan, the Repubs, and the HRC haters take HRC down. HRC is still the better of the candidates.
from Chris Martenson:
Here’s the law (18 U.S. Code § 1924):
(a) Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both.
(b) For purposes of this section, the provision of documents and materials to the Congress shall not constitute an offense under subsection
(a). (c) In this section, the term “classified information of the United States” means information originated, owned, or possessed by the United States Government concerning the national defense or foreign relations of the United States that has been determined pursuant to law or Executive order to require protection against unauthorized disclosure in the interests of national security.
(Source: https://www.law.cornell.edu/uscode/text/18/1924 )
Does it anywhere mention the need to prove “intent” to break the statute be in violation of it?
No, it merely sets the bar at “knowingly.” It literally provides zero wiggle room around the concept of intent to break the statue. Instead it says that if one knowingly removes specific types of documents with the intention of storing them in an unauthorized location, then one has broken the law.
rjs:
One of the efforts of the Koch Bros in Justice Reform (which is only on the sentencing end) is to change “intent.” The effective of this is force the government to prove there was intent to pollute the environment by the Koch Bros. Right now, the DOJ does not have to prove intent to pollute, the defendant has to prove they did not intend to pollute. In most states, an insanity plea carries with it the burden of proof. The defendant has to prove they lacked cognizance when the crime was committed due to a disorder such as a seizure or a mental condition.
My analysis which I believe is legally correct is the same and appears to be holding true in this case also. It appears the burden of proof is on the prosecution to prove HRC deliberately and knowingly sent classified documents. Mens rea and actus rea is what you need to reference. This is why the FBI director is saying what he said. There is not enough evidence to make a case.
Believe what you wish to as I do not care. I have enough experience and court time on these matters.
Intent is an element of most crimes, meaning that the prosecution must prove it beyond a reasonable doubt just as the prosecution must prove the other elements (i.e., components) of the crime. What happened in the case you have in mind, friend, was that the prosecution presented evidence that, if what it was claiming happened did happen, would establish intent in the prima facie case. Remember all that elaborate-scenario stuff whatshername testified to about what happened during the supposed 20-minute period? Of course under cross-examination she became confused and testified to events that lasted no more than a minute, probably less, and didn’t include the alleged crime. But Barry never mentioned it; he didn’t realize what he’d gotten, and never mentioned it in the closing.
But once the evidence was presented during the defense, about the partial seizures, the prima facie establishment of intent didn’t suffice. The burden switched back to the prosecution to establish intent beyond a reasonable doubt. Which of course was what the prosecution’s expert-who-wasn’t-an-expert was supposed to do. And when she conceded the possible accuracy of Pitts’s medical testimony, that should have been enough to establish reasonable doubt. But whatshername was such a good actress during her testimony about the 20-minute scenario, and Maas was so disruptive of Pitts’s narrative and whatshername’s cross-examination testimony, that, well ….
In the Clinton case, neither Clinton nor anyone else removed documents or materials that were originally in the possession of the government. I don’t think that statute is one of the ones that is relevant in the case.
Bev:
I just know to much. When I read the FBI’s comments, it struck me what he was saying.
” knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both.”
Grammar is hard.
ILSM & Rjs,
Thanks.
Run,
The low point for Republican administrations during my lifetime has to be the GW era. It was staffed by incompetents who bragged they were creating their own reality. The actions they took gave us the mess in Iraq and Afghanistan plus the 2007-2008 meltdown and the non prosecution of related malfeasance. But many of the architects and participants in those debacles still believe their course is the right one. However deluded those folks are, they have the integrity to disavow their own party’s candidate because he stands against the things he holds dear.
Do we have less moral fortitude than Bush minions? Are we willing to vote for a nakedly corrupt candidate because she claims to be on our side, particularly after she demonstrated a complete lack of judgement in her one foray as an executive. (Clinyon’s own goal in Libya is not any better than the 2003-2008 creation of today’s Iraq.)
Also, GE’s performance was so inept that Republicans steered clear of him in 2008 and 2012. He has only been rehabilitated to some extent by the ineptitude of Obama. GW’s legacy is not where it should be because he was followed by someone about as incompetent. But how many GWs, Obamas, and Clintons are there? If Predident Holary is followed not by a GW but by, say, a Jerry Ford (and there are more Fords than GWs), how long will Democrats wander the wilderness.
Mike:
Different issue. You could vote for Trump and how far would we set back the nation?
Different Issue. I do not believe Obama to be as incompetent as you make him out to be. He is slightly left of center when compared to Bill or Hillary. The country has not exhibited any change near enough to bring anyone else to the forefront beyond any of the three. Even Sanders failed in this arena. It is a holding pattern until someone rises to take the lead. It is not the sixties.
Different Issue. We also had a Congress bent on restraining Obama with whatever tactics they could utilize.
My comment should have read “President Hilary” rather than the spelling abomination I produced. Apologies. This phone screen is too small for my eyes.
Remember that then-Senator Clinton also voted for the Iraq and Afghanistan debacles, without even reading the intel reports made available to Congress. (They had to go and sign in to read the docs. She did not do so.)
What’s the problem, EMichael?
Are you saying that she did not intend to have a private server?
Email goes both directions, there’s an inbox and an outbox. Nonetheless, it was stupid. If this were the only thing it wouldn’t be disqualifying. It’s not the only thing. I was already against Hillary Clinton as president, and I continue to be. Treatment of classified material sent by email (and there is a separate system for transmission of classified material including by email that presumably was also in use, otherwise the number of classified emails would likely be in the tens of thousands over a period of several years) is not a decision moment for me.
When I go down the list of bad secretaries of state, Clinton doesn’t even touch the top five. (in no particularly order and only people alive in my lifetime: Albright’s Balkan war, Rice’s transformational diplomacy, Powell’s mendacity on Iraq, Nobel prize winning war criminal Henry Kissinger, Haig’s nuclear warning shot all come to mind instantly).
JG:
Colin Powell also contributed to the My Lai cover-up. He was a man of few morals. Read Ron Kovic and another whose name eludes me right now.
J Goodwin,
Some months ago when there were 17 or so worthies running for the Republican nomination, a Republican I know told me over lunch that he wasn’t impressed with then surging Fiorina. After all, she had tanked two companies. He wasn’t asking himself whether there were worse CEOs than Fiorina. He merely satisfied himself she was campaigning on her experience in a role in which she was awful.
Note also that Haig and Powell (from your list) sought out the Republican nomination, but neither of them got it, much less became President.
I didn’t support her for the nomination, and I won’t vote for her in the general election or support her. Her state department performance isn’t a significant factor in that decision.
Warren,
My problem is with people reading the statute; quoting the statute: and not being able to figure out what the statute clearly states.
“Intent” is clearly part of the statute and is required for the actions to be a violation of the statute.
J Goodwin,
About the Sec of State rankings…. In terms of long run damage to the country, I am not sure your top five should include Albright or Haig. This isn’t to excuse them, but rather to note that they didn’t make the sort of mistakes that caused permanent damage to the US and its interests. Condi and Kissinger are in a different league. I am afraid the result of Libya will be pretty lasting.
Of course there is this angle on the FBI director’s misbehavior…
http://www.alternet.org/election-2016/fbi-director-james-comey-breaks-federal-prosecutor-rules-smearing-not-indicting?
Why don’t people read people who know? Basically because they do not like the answers.
http://www.politico.com/story/2016/04/hillary-clinton-prosecution-past-cases-221744
I’d like to hear the explanation of how she unintentionally had a private email server.
She didn’t unintentionally have a private email server. But she also apparently can’t be proven to have intended to use it to systematically distribute and store classified information. There are and have been separate built-to-purpose networks for transmitting classified information, and that is what presumably was commonly used for that purpose, even by Hillary Clinton and her correspondents.
run75441
You could vote for Hillary and see how far that would set the world back between neocon war mongering leading the atomic clock a minute closer to midnight, neolib damage to working peeps and timidity toward climate change.
I see Trump as superior on lower levels of war mongering, and likely a wash on neolib non concern for peeps.
For the rest negligence is defined by care, lack of care is offense and in national security lack of care becomes a crime.
Intent is pure Obama speak BS!
A little perspective seems in order. Given all the allegations over her many years in the public domain, and the continuing lack of any indictable offense being brought by any person or office with prosecutorial power it would seem reasonable that any new charges be held to some higher standard of indictment. Emails on a private server?? Good god is that the petty nature of the charges that people in public office are subject to? Sectys. of State have lied about reasons to go to war. Presidents have lied as often and with similar disastrous results. Senators lie on a daily basis on the floor of the Senate. House members must take an oath to lie as soon as they reach the halls of Congress. Email messages???? About what?? That’s the reason we’re down to the choices we have.
Yes, I’d have preferred a better, more genuinely progressive, candidate for President. We thought we had that with Obama. We didn’t. But we did have a Congress full of dip shit political shysters hell bent on making certain that the first black President didn’t get too big for his britches.
Warren: “I’d like to hear the explanation of how she unintentionally had a private email server.”
There is no law preventing the use of a private email server. In fact, the regulations explicitly outline the procedures for using personal email for work related communications.
Neither personal email nor a .GOV email account is approved for classified information. The private server issue is completely irrelevant. In fact, while there have been many documented cases of foreign hacking of State Department email, there is no evidence that Clinton’s private server was ever hacked.
In any case, the use of a private server has never and still is not illegal. A .GOV email server is no more secure.
Could I respectfully suggest that before protesting Director Comey’s decision, it might be helpful to read his testimony before the committee today?
From the one report I read about it, it sounds like he did really well.
Jack:
I read his reported comments which is why I said what I said.
Did Daniel Ellsberg go to trial? How high the appeals? Intent!
If I were still on duty I would worry how I will make my people follow the law.
Over 100 e-mails some rose to Top Secret!
Maybe Hillary is less (not) smart (enough to know her job) than crooked!
Jack/Bill B,
Thousands (many) of cases dealing with secrets far less than significant than Clinton’s ruined good people with no connections.
On Teflon Clintons: one rule for the oligarchs.
On “systematically distribute and store classified information” the crime is not following the “rules” which establish how a non crook would assure 118 classified e-mails are kept from “systematically distribute and store classified information”.
Snowden has intentions which were good but he will be incarcerated!
Neither Snowden nor Clinton’s crimes got anyone killed unless you have compartmented access.
Emike,
People “who know on politico”, know Clinton is Teflon. Lots of meds today!
Having done one investigation not to diverse from Hillary in DoD which sometimes applies law the FBI established new “standards” for herself!
To the Clinton apologists:
Classified material is classified by content the idea that it needs marking apologizes for gross neglect, and misconduct. That Clinton put unmarked secrets in insecure e-mail is doubly neglectful.
Congress members do get properly marked classified material by E-Mail. They get them on SIPRNET a secure network with proper safeguards to put secrets in a secure walled off part of the ether.
Colin Powell may have used personal e-mail, he has not been found to have compromised secrets.
It is more important that the president be competent and have scruples than the president being a woman.
“On Teflon Clintons: one rule for the oligarchs.”
You see. That comment is part of the mythology of the political class. It flies in the face of reality. The Clintons are not great leaders by any stretch of my imagination, but neither have they been free from constant and exaggerated criticisms of who they are and what they do. One simple fact is that they seem to receive too much money, all apparently legal, for simply being within the political class. And near to the top of the class at that. But someone is always suggesting that they smell a rat in regards to what the Clintons are up to. And now there have been so many accusations of evil doing that we can’t seem to separate out the fact from the fiction. Look at Trump. He goes around screaming “Crooked Hilary” and hardly gets called out for his obvious projection. Who has been more crooked in his business dealings, in the colloquial sense of the term, than Trump or don’t we count his multiple bankruptcies and long lists of unpaid creditors?
As I noted previously, no one has yet been able to get a proper indictment against her, or him for that matter. Not that the Republicans haven’t tried. What was that ridiculous showboat of a Committee investigation all about? Was it really the Libyan incident that was being investigated? Too much bullshit is being passed around and it is thinning out any legitimate critique of what the woman brings to the political table. On the other hand, who would be any better choice? How about Ted Cruz. Marco Rubio? As the President? Really?? Carly Fiorino, there’s a winner for the White House. You see. You have to see any candidate within the context of who else is availalble for the job.
Mike, Clinton herself didn’t announce that she was considering keeping Lynch on. Someone “close to the Clintons” said this to a reporter. So the question is whether that person was authorized to say this to a reporter.
Beverly,
Re-reading the original, I see what you mean. But this doesn’t help much. In the few days between the NY Times article and Comey’s recommendation, there was no walking back of the story from what I can tell. Additionally, it doesn’t at all change the fact that she outright lied about sending and receiving classified emails (as the FBI noted, the upclassification excuse wasn’t true for many of the problematic emails).
Yeah, whoever said that to a reporter did Clinton no favors.
Truth be told, I thought on Tuesday that the facts Comey stated would be devastating for Clinton for a few days at least, until people again began thinking about Donald Trump as president. But it hasn’t been, I think because Trump stepped on his own parade with a deranged speech last night at a rally in Cincinnati, and then today had a bizarro meeting with congressional Republicans.
Trump is seriously manic, and I think he’s starting to scare some people who had planned to vote for him in order to “shake things up.”
Both Clintons are Dick Nixon.
From the time Ike hired him everyone knew he was a crook.
It took Watergate for him to really slip.
If Hillary were a general she would be gone faster than Petraeus.
I have told people to look at Nixon for the analogy the past weeks.
I envy Bill for what he gets and got in the oval office.
Islm: “That Clinton put unmarked secrets in insecure e-mail is doubly neglectful.”
There is no evidence that Clinton put secrets in insecure email. Comey said she may have received classified information in email, but that there was no indication that she would have been able to know that it was classified. For the majority of cases the information was classified after she left office. For the remainder, as Comey stated, the information she received was not properly marked so she would not have known that it was classified.
Comey testified that he has no evidence that Clinton was aware that some information she received may have been classified. There is no evidence that she lied about this. He testified that if she received email from a non-classified source and it was not marked, then she was reasonable to infer that it was unclassified information.
BillB,
The standards of diligence in your world are scary!
“no indication that she would have been able to know that it was classified. For the majority of cases the information was classified after she left office.”
Clinton is not competent is your defense is valid.
A stamp does not make information “classified” and the person stamping knows the same or less than the person handling the information!
No wonder US loses to goatherds while tossing trillion of bucks that could be used for less corruption away.
Maybe no on in DC is competent, which defends the tea party stand on about everything.
Every now and then people who are engaged in a subject should take a look around and see who is agreeing with them.
Not that anyone can be wrong all the time, but you should take a serious look at the people standing next to you.
EMichael,
As noted up thread, a number of Bush administration personnel have stated they are against Trump and some have openly come out for Hillary.
I tend to agree with your comment – it is worth noting who is standing next to you.
J Goodwin,
Any guesses as to which candidate is more liked by the Kingdom of Saudi Arabia?
I’m not particularly concerned about who the Kingdom of Saudi Arabia wants as the next president of the United States. My opinion is that it is an intensely corrupt and backward place that has been teetering on the edge of oblivion for most of my life, and that the only thing propping it up the entire time has been oil money, which hasn’t done a bit of good to prevent it from exporting international jihad worldwide.
Their opinion and preference has no impact on the election. However, I suspect that they would have preferred, among those available, either Jeb Bush or Ted Cruz, based on business connections between Salman and Baker Botts.
But choosing between Trump and Clinton, they’d probably prefer Clinton because she represents the status quo. Internationally almost everyone prefers the devil you know to the one you don’t.
J Goodwin,
With all due respect, I am pretty sure the reason the Bushies and the KSA would prefer HRC in the White House is a bit stronger than “the devil you know…” The question is, are those reasons good for the American public?
Saying something that isn’t true is not, ipso facto, a lie, outright or otherwise. One has to say it, knowing that it is untrue. Comey’s testimony made it clear that there was no evidence she lied. She may have been mistaken or wrong but that isn’t enough to establish a lie. Indeed, Comey detailed how the mismarking of the three confidential items may have misled her. Cavalier accusations of lying have become far too common in today’s hostile and politically charged atmosphere. Believe what you wish but stop claiming opinions as established facts.
Bill, Beverly, just to be clear, the section of the US Code and the comments that followed it that i posted early on in this thread were all from Chris Martenson, on an open thread on his website…i would never be so presumptive as to pretend i know anything about the law…
The American public isn’t voting solely on the interests of the KSA, or even on the impact of the impacts of the interests of the KSA.
The American public is voting on a market basket of other concerns, and a lot of them are now stuck between a rock and a hard place because they believed (incorrectly) that the Republicans would nominate a reasonably strong presidential candidate (the “tough on crime” fallacy in new clothing), and possibly reasonably believe that they are “throwing away their vote” if they select someone who doesn’t have an (R) or (D) beside their name in November.
Even if they were voting rationally, the fact that one candidate or the other or both are likely to take an action or series of actions as president that are beneficial to the KSA but specifically detrimental to them as a group or individually does not mean they would not still vote that way, if they felt that other issues were equally or more significant and weighted in their direction.
If you can prove that there is even 1% of the electorate that is composed of single-issue voters who care about the president’s policies regarding the KSA over any other potential issue, then this is an argument worth having, but I don’t think you can, because I don’t think there is such a group.
It does seem that there is such a group that gives a crap about US interactions with Israel (and maybe more than one who care in different ways), but I think it is almost certain there is not for Saudi Arabia.
rjs: “i would never be so presumptive as to pretend i know anything about the law…”
Do you understand the word knowingly? Do you understand the word intent. Both of those are required for a crime. There is no evidence that Clinton knew the information was classified. There is no evidence that she intended to have classified material in her email.
When directly asked if he would prosecute one of his own agents who had acted as Clinton has acted, the FBI director said “No, he would not.”
The director also said that he had looked at the history of prosecutions and there had never been a case prosecuted which did not include both knowledge that the material was classified and intent to place classified material in an unclassified location.