Do you know that this cause celebre is not yet a year old? First became a cause celebre in March, 2015. Seems like it has been longer than that, probably because it seems like there is always something like this going on with the Clintons. For no particular reason, or if there was a particular reason I've forgotten it, for a couple of hours yesterday I decided to refresh my memory on the details and to make a future memory by rendering judgement on the issue. This judgment is informed by the following: three articles in the New York Times, one from January 30, one from February 6,-Ah! That was the particular reason, I read yesterday's article.-and a February 4 debate in print; a National Public Radio report from February 6; a Politico article from November; an Associated Press report from October, 2015; and the Wikipedia entry "Hillary Clinton email controversy."
Key to my judgment was a sentence in the Feb. 6 article in the Times,
"It is against the law to have classified information outside a secure government account."
that was nearly identical to a sentence in the Jan. 30 Times article,
"It is against the law for officials to discuss classified information on unclassified networks used for routine business or on private servers..."
Thus I rendered judgment
I. To me, that disqualifies her from the presidency.
I kept researching however because,
II. Legally, that does not disqualify her from the presidency.
Right? I mean, she's still running. She already stood in the Iowa caucuses, she wasn't legally disqualified there, is not legally disqualified from appearing on the ballot in, and contesting, New Hampshire. For that matter even if Clinton were indicted for a crime that would not legally disqualify her from running for president. So personal judgment, that disqualifies her, but there are more persons than me! So fuck me! So I kept reading.
What law, what area of the law, more precisely did she violate? I assumed criminal. Right? Isn't that what is normally implicated when we say something is "against the law"? And the FBI is investigating. But then there was this statement in the Politico article:
"...the FBI has not called its probe a formal investigation, while suggesting it is interested in broader questions about how classified materials were handled — and not necessarily launching a criminal inquiry."
The Fibbyeye does investigate some violations of the civil law.
What law, specifically? I don't know. One theory of prosecution is under 18 U.S.C. § 793(d). All I know for sure are general, lay descriptions:
1. Mishandling classified information.
2. Avoiding the Freedom of Information Act (FOIA).
Clearly, the first is more likely to be criminal but could be civil in addition; the second clearly seems civil but I think if there was deliberate intent to violate, not just avoid, FOIA, then that would be criminal. Then again, even without a specific intent, you can still violate criminal law. You have to have intent to do the act that constitutes the violation of criminal law. So, I focused on Clinton's intent and my judgment is:
III. She did not intentionally violate criminal or civil law regarding classified information.
That is, she didn't set up this private email server with intent to be a double agent and to reveal U.S. secrets to hostile powers. That doesn't get her out of criminal hot water if she intentionally did some act that was a violation of criminal law but I didn't go there next, I wanted to render judgment on whether she intentionally violated FOIA.
Clinton's first statement of explanation on her private email server was that she used it "for convenience." I judge that explanation bullshit. She has made other statements, including "Sorry for that" but they all go to her mishandling of classified information not to FOIA.
Initially when this story broke not yet a year ago and initially Saturday I felt confident that she set up this email server with intent to avoid FOIA. That would just be so-Clinton of her, she and Bubba always saw vast conspiracies against them everywhere. I have judged that as her true intent:
IV. She intended to avoid FOIA.
In the abstract intending to avoid application of a law is not "against the law," criminal or civil. It is different from violating intentionally or negligently a law. Did she do that? First, intentionally:
Setting up the private email server for official business was a violation of federal record-keeping laws. She has countered that previous SECSTATE's did the same thing. It is not a legal defense to a criminal charge that everyone else does it. Everyone else smokes marijuana is not a defense when you get caught smoking marijuana. That everyone else does it is of some significance in prosecutorial discretion, however, it is in possession of marijuana cases, it is in other criminal cases. Senator Lindsey Graham said avoiding paying taxes is an American thing to do! So, how this person's conduct and this person's mens rea, her mental state, compare to others similarly situated is of some importance because prosecutors and judges want to be consistent in their judgments.
But it is not true that everyone else did what Secretary of State Hillary Clinton did. Colin Powell had a private email server but Clinton is the only SECSTATE to use a private email server exclusively for government business.
When she left government in 2013 Clinton wiped clean the email server. Intentional act. That violates all kinds of record-keeping laws. Setting up an exclusive private email server and then wiping it clean are not what everyone else does and are evidence that she had the intent to violate, not merely avoid, FOIA.
She also has voluntarily turned over to the State Department the hard drive that she attempted to wipe clean, the thumb backups, and has said she wants all of her emails released. Those acts and expressions are evidence of the absence of intent to violate FOIA but they are post-facto acts and expressions of intent. Before this became a cause celebre her actions and expressions were consistent with intentional violation.
Nothing was irretrievably lost, however. State has everything. Clinton through her minions turned everything over. We look to similar cases. One that comes to mind is Patrick J. Buchanan advising President Richard Nixon to burn the Watergate tapes. Intent. But the tapes weren't burned. No completed act. Buchanan was not prosecuted criminally or civilly. I adjudge:
V. She intended to violate, but did not violate, FOIA.
Did she violate criminal or civil law regarding the handling of classified information even if not intentionally. If I do a recklessly negligent act, like driving drunk, and I kill somebody, I will be charged criminally with the killing even if I had no intent to kill.
Clinton's private email server was not secure, not as secure as state.gov is, she consciously set up the not-as-secure private server, classified information was transmitted to that private server and that is a violation of law, probably criminal, more probably, civil law. In addition, the private server was hacked. The entire contents copied by a computer program operated out of Serbia. In other words, the consequence that the law prohibiting use of private servers for public business is intended to prevent, did occur, analogous to the consequence of killing someone that the law against drunk driving seeks to prevent.
"The first person to reason by analogy was the devil."-Prophet Muhammad. Was anybody killed? No. Was the national security harmed? No. President Obama says no. It was a computer program, set in motion by a human being, obviously, but a computer program that randomly searched ip addresses for insecure ports, found the Clinton's, and copied the contents on the email server. Nothing has come of that breach. That matters to those making the decision to prosecute criminally a person with violation of the "Espionage Act," one who had no intent to violate the Espionage Act. When, as here, on these facts, there was reckless negligence, but not a dire consequence, the "law" of No Harm, No Foul controls:
VI. She did not violate the Espionage Act by reckless indifference to consequences.
Finally, what should be done? In my judgment there is too much intent here to let it go. Doing this as a sitting Secretary of State is appalling. She should not get away with it. Balancing the equities, aiming at fairness always, she did not have the intent to violate the criminal law and should not be charged even if her actions amount to a criminal violation. However, she did not have innocent intent, there is enough, and gobs of it, to charge her with violations of the civil or administrative components of the various laws:
VII. She should be charged with non-criminal violations of law.
Key to my judgment was a sentence in the Feb. 6 article in the Times,
"It is against the law to have classified information outside a secure government account."
that was nearly identical to a sentence in the Jan. 30 Times article,
"It is against the law for officials to discuss classified information on unclassified networks used for routine business or on private servers..."
Thus I rendered judgment
I. To me, that disqualifies her from the presidency.
I kept researching however because,
II. Legally, that does not disqualify her from the presidency.
Right? I mean, she's still running. She already stood in the Iowa caucuses, she wasn't legally disqualified there, is not legally disqualified from appearing on the ballot in, and contesting, New Hampshire. For that matter even if Clinton were indicted for a crime that would not legally disqualify her from running for president. So personal judgment, that disqualifies her, but there are more persons than me! So fuck me! So I kept reading.
What law, what area of the law, more precisely did she violate? I assumed criminal. Right? Isn't that what is normally implicated when we say something is "against the law"? And the FBI is investigating. But then there was this statement in the Politico article:
"...the FBI has not called its probe a formal investigation, while suggesting it is interested in broader questions about how classified materials were handled — and not necessarily launching a criminal inquiry."
The Fibbyeye does investigate some violations of the civil law.
What law, specifically? I don't know. One theory of prosecution is under 18 U.S.C. § 793(d). All I know for sure are general, lay descriptions:
1. Mishandling classified information.
2. Avoiding the Freedom of Information Act (FOIA).
Clearly, the first is more likely to be criminal but could be civil in addition; the second clearly seems civil but I think if there was deliberate intent to violate, not just avoid, FOIA, then that would be criminal. Then again, even without a specific intent, you can still violate criminal law. You have to have intent to do the act that constitutes the violation of criminal law. So, I focused on Clinton's intent and my judgment is:
III. She did not intentionally violate criminal or civil law regarding classified information.
That is, she didn't set up this private email server with intent to be a double agent and to reveal U.S. secrets to hostile powers. That doesn't get her out of criminal hot water if she intentionally did some act that was a violation of criminal law but I didn't go there next, I wanted to render judgment on whether she intentionally violated FOIA.
Clinton's first statement of explanation on her private email server was that she used it "for convenience." I judge that explanation bullshit. She has made other statements, including "Sorry for that" but they all go to her mishandling of classified information not to FOIA.
Initially when this story broke not yet a year ago and initially Saturday I felt confident that she set up this email server with intent to avoid FOIA. That would just be so-Clinton of her, she and Bubba always saw vast conspiracies against them everywhere. I have judged that as her true intent:
IV. She intended to avoid FOIA.
In the abstract intending to avoid application of a law is not "against the law," criminal or civil. It is different from violating intentionally or negligently a law. Did she do that? First, intentionally:
Setting up the private email server for official business was a violation of federal record-keeping laws. She has countered that previous SECSTATE's did the same thing. It is not a legal defense to a criminal charge that everyone else does it. Everyone else smokes marijuana is not a defense when you get caught smoking marijuana. That everyone else does it is of some significance in prosecutorial discretion, however, it is in possession of marijuana cases, it is in other criminal cases. Senator Lindsey Graham said avoiding paying taxes is an American thing to do! So, how this person's conduct and this person's mens rea, her mental state, compare to others similarly situated is of some importance because prosecutors and judges want to be consistent in their judgments.
But it is not true that everyone else did what Secretary of State Hillary Clinton did. Colin Powell had a private email server but Clinton is the only SECSTATE to use a private email server exclusively for government business.
When she left government in 2013 Clinton wiped clean the email server. Intentional act. That violates all kinds of record-keeping laws. Setting up an exclusive private email server and then wiping it clean are not what everyone else does and are evidence that she had the intent to violate, not merely avoid, FOIA.
She also has voluntarily turned over to the State Department the hard drive that she attempted to wipe clean, the thumb backups, and has said she wants all of her emails released. Those acts and expressions are evidence of the absence of intent to violate FOIA but they are post-facto acts and expressions of intent. Before this became a cause celebre her actions and expressions were consistent with intentional violation.
Nothing was irretrievably lost, however. State has everything. Clinton through her minions turned everything over. We look to similar cases. One that comes to mind is Patrick J. Buchanan advising President Richard Nixon to burn the Watergate tapes. Intent. But the tapes weren't burned. No completed act. Buchanan was not prosecuted criminally or civilly. I adjudge:
V. She intended to violate, but did not violate, FOIA.
Did she violate criminal or civil law regarding the handling of classified information even if not intentionally. If I do a recklessly negligent act, like driving drunk, and I kill somebody, I will be charged criminally with the killing even if I had no intent to kill.
Clinton's private email server was not secure, not as secure as state.gov is, she consciously set up the not-as-secure private server, classified information was transmitted to that private server and that is a violation of law, probably criminal, more probably, civil law. In addition, the private server was hacked. The entire contents copied by a computer program operated out of Serbia. In other words, the consequence that the law prohibiting use of private servers for public business is intended to prevent, did occur, analogous to the consequence of killing someone that the law against drunk driving seeks to prevent.
"The first person to reason by analogy was the devil."-Prophet Muhammad. Was anybody killed? No. Was the national security harmed? No. President Obama says no. It was a computer program, set in motion by a human being, obviously, but a computer program that randomly searched ip addresses for insecure ports, found the Clinton's, and copied the contents on the email server. Nothing has come of that breach. That matters to those making the decision to prosecute criminally a person with violation of the "Espionage Act," one who had no intent to violate the Espionage Act. When, as here, on these facts, there was reckless negligence, but not a dire consequence, the "law" of No Harm, No Foul controls:
VI. She did not violate the Espionage Act by reckless indifference to consequences.
Finally, what should be done? In my judgment there is too much intent here to let it go. Doing this as a sitting Secretary of State is appalling. She should not get away with it. Balancing the equities, aiming at fairness always, she did not have the intent to violate the criminal law and should not be charged even if her actions amount to a criminal violation. However, she did not have innocent intent, there is enough, and gobs of it, to charge her with violations of the civil or administrative components of the various laws:
VII. She should be charged with non-criminal violations of law.
