In a Rigged System, Hillary Clinton Is Too Big to Indict
http://www.truthdig.com/report/item/is_hillary_clinton_too_big_to_indict_201
60705/
Posted on Jul 5, 2016
By Bill Blum
President Barack Obama appeared at a campaign rally for Hillary Clinton in
Charlotte, N.C., on Tuesday, after FBI Director James Comeys announcement.
(Chuck Burton / AP)
The long-roiling question finally has been answered: Hillary Clinton will
not be indicted for using a private email server during her tenure as
secretary of state. Period. Full stop. Pause a moment, and let it sink in.
FBI Director James Comey delivered the word in a surprise news conference
Tuesday morning, exactly three days after Clintons 3½-hour interview
Saturday at the J. Edgar Hoover Building in Washington, D.C.
There was plenty of evidence that the presumptive Democratic presidential
nominee and her staff had been extremely careless in their handling of
classified and sensitive information, Comey said, but not enough to prove
they had acted with the criminal intent or willfulness needed to secure a
conviction. No reasonable prosecutor would bring such a case, he
concluded.
While the FBIs evaluation technically is not binding on the Justice
Department, any indictment is now clearly off the table. Last week,
following her embarrassing and ethically suspect encounter with Bill Clinton
on the tarmac at the Phoenix airport, Attorney General Loretta Lynch
publicly pledged to follow the bureaus lead. And the bureau, via Comey, has
spoken.
Reaction to his announcement has been swift and predictable, with House
Speaker Paul Ryan, R-Wis., expressing shock and dismay that the rule of
law has been damaged, and the Clinton campaign voicing relief that the
matter is now resolved. Taking to Twitter, Clintons Republican
presidential rival, Donald Trump, blasted Comeys analysis as further proof
that the system is rigged.
I have been following the Clinton email scandal in this column for several
months and have long predicted that she would escape prosecution. Now that
the official decision is in, I find myself, regrettably, in agreement with
Ryan and Trump.
The system is rigged. Like the Wall Street banks that were bailed out after
running the nations economy off a cliff just a few years ago because they
were too big to fail, Clinton and the power elite of which she is an
integral part are too big to indict.
This isnt to say that Comey or any of the career prosecutors in the Justice
Department assigned to the investigation are in the tank. White-collar
crimes are often tangled webs, tedious to investigate and hard to litigate.
Clintons email machinations are no exception.
As Comey noted in his news conference, the email investigation focused on
two federal criminal statutes. They are Sections 1924 and 793 of Title 18 of
the United States Code. They deal, respectively, with the unauthorized
removal and retention of classified material, and the improper gathering,
transmission or loss of information relating to the national defense.
A conviction of Clinton under the first statute, a misdemeanor, would
require proof that she actually knew she was keeping classified information
on her server. The second, a felony carrying a potential 10-year prison
sentence, would require a showing of either knowledge or gross negligence
(essentially, the equivalent of recklessness). The elements of both offenses
would have to be established beyond a reasonable doubt, the highest standard
of proof in our legal system.
In part, Comey explained, the recommendation against prosecution was made
because an indictment would have taken investigators into uncharted legal
waters. All the cases prosecuted [under these laws], he explained,
alluding to but not naming former CIA Director David Petraeus and
ex-National Security Adviser Sandy Berger, involved some combination of:
clearly intentional and willful mishandling of classified information; or
vast quantities of materials exposed in such a way as to support an
inference of intentional misconduct; or indications of disloyalty to the
United States; or efforts to obstruct justice. We do not see those things
here.
Reasonable minds, as they say in law school lectures nearly every day across
the country, can differ. But is a criminal case against Clinton actually so
weak that, to quote Comey again, no reasonable prosecutor would bring it?
As Comey revealed, Clinton used not one, but several email servers at her
New York home during her tenure at the State Department from January 2009 to
February 2013, decommissioning and replacing one after another. More
importantly, he also revealed that the servers contained no less than 110
emails that included information that was classified at the time the emails
were received and stored. Of these, eight email chains contained information
that was top secret.
Comeys announcement came on the heels of an 83-page report issued by the
State Departments Office of Inspector General (IG). Released on May 26, the
IGs report delivered a stinging rebuke of Clinton, finding that she had
committed a bounty of administrative derelictions.
Among her many missteps, according to the IG, Clinton never obtained
department approval for using personal email, much less a BlackBerry mobile
phone or a private server, to transact official business. Such practices, in
fact, contravened a departmental policy adopted in 2005, advising employees
to conduct day-to-day operations on an authorized automation system. The
claim that her email usage was permitted during her term at the State
Department is still published on Clintons official website. It is at best
artful and misleading.
The IG also found that Clinton continued to use the server without seeking
technical assistance from the departments Bureau of Information Resource
Management (IRM) to guard against leaks and hacking, even though two IRM
staffers raised security misgivings about the server in 2010, and the server
was briefly shut down in 2011 out of concerns that an unknown third party
was attempting to break into it.
Clintons oft-cited defense that her predecessors at the State Department
also utilized personal email is similarly misleading. While Colin Powell
conducted official business via a private email account, as did certain
aides to Condoleezza Rice, the installation of a private server was
unprecedented.
The IG further faulted Clinton for waiting until December 2014, 21 months
after leaving office, to turn over some 30,000 emails to the department.
Under the provisions of the Federal Records Act, even before it was amended
and tightened in 2014, Clinton was required to submit all work-related
documents immediately upon her departure as secretary.
Neither the IG nor Comey, however, commented directly on the propriety of
Clintons unilateral decision to delete some 31,000 email messages from her
server that she deemed were purely personal. Was other classified and top
secret material contained in files that have been permanently erased? Were
unlikely to know now.
The decision not to prosecute, however, will not end the email controversy,
not by a long shot.
The leniency shown to Clinton stands in stark contrast to the harsh
sentences meted out to whistleblowers such as Chelsea Manning and former CIA
analyst John Kiriakou for their alleged mishandling of classified material.
As a result, we can expect the cries of double standards, political
influence and corruption to persist and redouble as we head for the November
election. At the same time, the increasingly proto-fascist Trump campaign
will be fortified with a fresh set of inexhaustible talking points.
Most disastrous of all, the race for the White House, which should be a
cakewalk for the Democrats, will go down to the wire because the party has
chosen as its leader a candidate driven by blind ambition, with an appalling
disregard for accountability and transparency, who, when push came to shove,
was too big to bring to the bar of justice.
http://www.truthdig.com/ http://www.truthdig.com/
In a Rigged System, Hillary Clinton Is Too Big to Indict
http://www.truthdig.com/report/item/is_hillary_clinton_too_big_to_indict_201
60705/
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Posted on Jul 5, 2016
By Bill Blum
President Barack Obama appeared at a campaign rally for Hillary Clinton in
Charlotte, N.C., on Tuesday, after FBI Director James Comeys announcement.
(Chuck Burton / AP)
The long-roiling question finally has been answered: Hillary Clinton will
not be indicted for using a private email server during her tenure as
secretary of state. Period. Full stop. Pause a moment, and let it sink in.
FBI Director James Comey delivered the word in a surprise news conference
Tuesday morning, exactly three days after Clintons 3½-hour interview
Saturday at the J. Edgar Hoover Building in Washington, D.C.
There was plenty of evidence that the presumptive Democratic presidential
nominee and her staff had been extremely careless in their handling of
classified and sensitive information, Comey said, but not enough to prove
they had acted with the criminal intent or willfulness needed to secure a
conviction. No reasonable prosecutor would bring such a case, he
concluded.
While the FBIs evaluation technically is not binding on the Justice
Department, any indictment is now clearly off the table. Last week,
following her embarrassing and ethically suspect encounter with Bill Clinton
on the tarmac at the Phoenix airport, Attorney General Loretta Lynch
publicly pledged to follow the bureaus lead. And the bureau, via Comey, has
spoken.
Reaction to his announcement has been swift and predictable, with House
Speaker Paul Ryan, R-Wis., expressing shock and dismay that the rule of
law has been damaged, and the Clinton campaign voicing relief that the
matter is now resolved. Taking to Twitter, Clintons Republican
presidential rival, Donald Trump, blasted Comeys analysis as further proof
that the system is rigged.
I have been following the Clinton email scandal in this column for several
months and have long predicted that she would escape prosecution. Now that
the official decision is in, I find myself, regrettably, in agreement with
Ryan and Trump.
The system is rigged. Like the Wall Street banks that were bailed out after
running the nations economy off a cliff just a few years ago because they
were too big to fail, Clinton and the power elite of which she is an
integral part are too big to indict.
This isnt to say that Comey or any of the career prosecutors in the Justice
Department assigned to the investigation are in the tank. White-collar
crimes are often tangled webs, tedious to investigate and hard to litigate.
Clintons email machinations are no exception.
As Comey noted in his news conference, the email investigation focused on
two federal criminal statutes. They are Sections 1924 and 793 of Title 18 of
the United States Code. They deal, respectively, with the unauthorized
removal and retention of classified material, and the improper gathering,
transmission or loss of information relating to the national defense.
A conviction of Clinton under the first statute, a misdemeanor, would
require proof that she actually knew she was keeping classified information
on her server. The second, a felony carrying a potential 10-year prison
sentence, would require a showing of either knowledge or gross negligence
(essentially, the equivalent of recklessness). The elements of both offenses
would have to be established beyond a reasonable doubt, the highest standard
of proof in our legal system.
In part, Comey explained, the recommendation against prosecution was made
because an indictment would have taken investigators into uncharted legal
waters. All the cases prosecuted [under these laws], he explained,
alluding to but not naming former CIA Director David Petraeus and
ex-National Security Adviser Sandy Berger, involved some combination of:
clearly intentional and willful mishandling of classified information; or
vast quantities of materials exposed in such a way as to support an
inference of intentional misconduct; or indications of disloyalty to the
United States; or efforts to obstruct justice. We do not see those things
here.
Reasonable minds, as they say in law school lectures nearly every day across
the country, can differ. But is a criminal case against Clinton actually so
weak that, to quote Comey again, no reasonable prosecutor would bring it?
As Comey revealed, Clinton used not one, but several email servers at her
New York home during her tenure at the State Department from January 2009 to
February 2013, decommissioning and replacing one after another. More
importantly, he also revealed that the servers contained no less than 110
emails that included information that was classified at the time the emails
were received and stored. Of these, eight email chains contained information
that was top secret.
Comeys announcement came on the heels of an 83-page report issued by the
State Departments Office of Inspector General (IG). Released on May 26, the
IGs report delivered a stinging rebuke of Clinton, finding that she had
committed a bounty of administrative derelictions.
Among her many missteps, according to the IG, Clinton never obtained
department approval for using personal email, much less a BlackBerry mobile
phone or a private server, to transact official business. Such practices, in
fact, contravened a departmental policy adopted in 2005, advising employees
to conduct day-to-day operations on an authorized automation system. The
claim that her email usage was permitted during her term at the State
Department is still published on Clintons official website. It is at best
artful and misleading.
The IG also found that Clinton continued to use the server without seeking
technical assistance from the departments Bureau of Information Resource
Management (IRM) to guard against leaks and hacking, even though two IRM
staffers raised security misgivings about the server in 2010, and the server
was briefly shut down in 2011 out of concerns that an unknown third party
was attempting to break into it.
Clintons oft-cited defense that her predecessors at the State Department
also utilized personal email is similarly misleading. While Colin Powell
conducted official business via a private email account, as did certain
aides to Condoleezza Rice, the installation of a private server was
unprecedented.
The IG further faulted Clinton for waiting until December 2014, 21 months
after leaving office, to turn over some 30,000 emails to the department.
Under the provisions of the Federal Records Act, even before it was amended
and tightened in 2014, Clinton was required to submit all work-related
documents immediately upon her departure as secretary.
Neither the IG nor Comey, however, commented directly on the propriety of
Clintons unilateral decision to delete some 31,000 email messages from her
server that she deemed were purely personal. Was other classified and top
secret material contained in files that have been permanently erased? Were
unlikely to know now.
The decision not to prosecute, however, will not end the email controversy,
not by a long shot.
The leniency shown to Clinton stands in stark contrast to the harsh
sentences meted out to whistleblowers such as Chelsea Manning and former CIA
analyst John Kiriakou for their alleged mishandling of classified material.
As a result, we can expect the cries of double standards, political
influence and corruption to persist and redouble as we head for the November
election. At the same time, the increasingly proto-fascist Trump campaign
will be fortified with a fresh set of inexhaustible talking points.
Most disastrous of all, the race for the White House, which should be a
cakewalk for the Democrats, will go down to the wire because the party has
chosen as its leader a candidate driven by blind ambition, with an appalling
disregard for accountability and transparency, who, when push came to shove,
was too big to bring to the bar of justice.
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