Why Hillary Clinton’s "Trustwortiness" Won’t be Fatal

One new national poll shows Hillary Clinton leading Donald trump by 12% nationally.   That said, I cannot relax for fear that some shoe will drop or that douche bag Julian Assange will try to engineer some "October surprise" to push the election to Russia loving Donald Trump.  Even some conservative reporters seem to think that nonetheless, Trump is toast and that Hillary Clinton's lack of "trustworthiness" will not be a fatal flaw that prevents her from being elected on November 8, 2016.   Likewise, the latest scandal that Republicans are trying to inflate over the Clinton Foundation is a case of smoke but no fire.   Indeed, I suspect many will simply shrug their shoulders and say to themselves that the Republicans are "at it again" in terms of maligning Hillary Clinton. An op-ed in the Washington Post looks at these issue.  Here are highlights:

The Associated Press reported yesterday:

More than half the people outside the government who met with Hillary Clinton while she was secretary of state gave money — either personally or through companies or groups — to the Clinton Foundation. It’s an extraordinary proportion indicating her possible ethics challenges if elected president. At least 85 of 154 people from private interests who met or had phone conversations scheduled with Clinton while she led the State Department donated to her family charity or pledged commitments to its international programs, according to a review of State Department calendars released so far to The Associated Press. Combined, the 85 donors contributed as much as $156 million. At least 40 donated more than $100,000 each, and 20 gave more than $1 million.

Let’s get one thing out of the way up front: This is almost certainly not illegal. For that, Clinton should send bushels of roses to former Virginia governor Bob McDonnell, his lawyers and their legal defense fund donors, who won a ruling from the Supreme Court that setting up a meeting is not an official act under federal bribery statutes. 

Would she have had these meetings anyway? In some cases, yes. Many of the donors were longtime Clinton friends and donors, international philanthropists and prominent public figures. She also did not see every big donor. But the jumble of public and private interests and the appearance of conflicts of interest were why the whole enterprise was dodgy from the start.

This foundation scandal is in the realm in between “perfectly ethical and legal” behavior and illegal behavior. Call it sleaze or the appearance of corruption. Chalk it up to the Clinton’s habitual blindness to impropriety. 

In a sense, there is nothing new here. We already knew the foundation served two purposes — one altruistic and one entirely selfish. It was a sort of super PAC, a big pot of money to which friends, favor- and publicity-seekers, do-gooders and celebrities all could donate. It, in turn, would generate lucrative speaking engagements for Bill Clinton and later Hillary Clinton, employ cronies like Sid Blumenthal and pay for lavish travel.

Mostly, it would keep Hillary Clinton connected to the rich and famous for what everyone knew would be one last opportunity to win the White House. The latest revelation won’t change many voters’ minds, with the exception of one category of voters. Some Republicans who planned to vote for her may either stay home or vote for third or fourth candidates, especially in states that are not all that competitive. If the disgusted Republican voters stay home, it will actually harm down-ticket Republicans, one more irony in the Clinton wars.

Yes, Clinton will “get away with it,” in the sense that the foundation antics in all likelihood won’t land her in jail or cost her the presidency. But it does further diminish her. It makes the public more cynical and therefore governance that much harder. That means voters are once again the losers.

Finally, it cannot be said enough: Republicans would be winning easily against this deeply flawed opponent with virtually any other candidate but Trump. The sheer stupidity of the Republican primary electorate’s decision and of the reaction of party leadership, which could have blocked or dumped him, is more maddening than even Hillary Clinton’s shadiness.

I definitely agree with the author's lament about the stupidity of Republican primary voters.  That said, it must be underscored that it was the so-called GOP establishment who invited these knuckle draggers into the party and haughtily approved dog whistle messaging that played to their racism, homophobia and general misogyny.  Trump is the natural result of the GOP establishment's self-prostitution to the  swamp fever ridden masses of Christofascists and white supremacists. 

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James Comey’s Abuse of Power

While many have let out a sigh of relief that the FBI and U.S. Department of Justice will not be seeking indictments against Hillary Clinton, some are saying that by abusing his power and not complying with past FBI practices, Director James Comey - a Republican - gave the Hillary haters in the GOP precisely what they wanted.   Typically, if the FBI fails to find adequate evidence to indict, the investigation simply quietly goes away, sometimes without even an official announcement.  I this know from personal experience in both instances where I have an outside expert for the FBI and where I have testified as a witness in FBI/Justice Department prosecutions. An op-ed in the Washington Post by Matthew Miller, the director of the Justice Department’s public affairs office from 2009 to 2011, tears Comey apart shows the irregularity of Comey's behavior.  Here are op-ed highlights:

When FBI Director James B. Comey stepped to the lectern to deliver his remarks about Hillary Clinton on Tuesday, he violated time-honored Justice Department practices for how such matters are to be handled, set a dangerous precedent for future investigations and committed a gross abuse of his own power.

Some have praised Comey’s remarks as much-needed truth-telling from a fearless, independent law-enforcement authority, an outcome Comey no doubt had in mind. But in fact, his willingness to reprimand publicly a figure against whom he believes there is no basis for criminal charges should trouble anyone who believes in the rule of law and fundamental principles of fairness.

Justice Department rules set clear guidelines for when it is appropriate for the government to comment about individuals involved in an ongoing investigation, which this matter was until prosecutors closed it Wednesday. Prosecutors and investigators can reassure the public that a matter is being taken seriously, and in some rare cases can provide additional information to protect public safety, such as when a suspect is loose and poses a danger.

And when the department closes an investigation, it typically does so quietly, at most noting that it has investigated the matter fully and decided not to bring charges.

These practices are important because of the role the Justice Department and FBI play in our system of justice. They are not the final adjudicators of the appropriateness of conduct for anyone they investigate. Instead, they build cases that they present in court, where their assertions are backed up by evidence that can be challenged by an opposing party and ultimately adjudicated by a judge or jury.

In a case where the government decides it will not submit its assertions to that sort of rigorous scrutiny by bringing charges, it has the responsibility to not besmirch someone’s reputation by lobbing accusations publicly instead. Prosecutors and agents have followed this precedent for years.

In this case, Comey ignored those rules to editorialize about what he called carelessness by Clinton and her aides in handling classified information, a statement not grounded in any position in law.

 

In several instances, Comey made assertions that are outside the authority of the FBI. He inserted himself into a long-standing bureaucratic battle between the State Department and the FBI and intelligence agencies, making claims about classification practices at the State Department that do not fall under his jurisdiction. He raised the possibility of administrative sanctions that could be taken, another decision that is not his to make — any such sanctions, if appropriate, would be decided by the State Department, not the director of the FBI.

 

Comey argued that his statement was appropriate because this case was a matter of unusual public interest. But the department investigates cases involving extreme public interest all the time — suspected terrorist acts, alleged civil rights violations by police and possible crimes by financial institutions, for example. It is for precisely these situations that the rules exist, so that the department cannot speak outside the bounds of court when it does not bring charges.

Imagine a situation in which the Obama Justice Department investigates major conservative activists such as the Koch brothers for possibly violating the law, but finding no reason to bring charges, the attorney general holds a news conference to outline all of the ways in which she finds their conduct deplorable. 

While Clinton shouldn’t have received special treatment, she does not deserve worse treatment from her government than anyone else, either. Yet by inserting himself into the middle of a political campaign and making unprecedented public assertions, that is exactly what Comey provided.

The entire exercise seemed designed to protect Comey’s reputation for integrity, while not actually demonstrating integrity. Real integrity is making a decision, conveying it in the ordinary channels, and then taking whatever heat comes. Generations of prosecutors and agents have learned to make the right call without holding a self-congratulatory news conference to talk about it. Comey just taught them a different lesson.

Why Hillary Clinton Isn’t Getting Indicted

With the announcement today by FBI Director James Comey that no prosecution or indictment of Hillary Clinton would be recommended by the FBI in respect to the partially media manufactured "e-mail scandal," it goes without saying that the GOP and right wing talk radio noise machine immediately laundered into over drive claiming that the system was "rigged."  Naturally, Donald Trump, perhaps the most unfit candidate for the White House in memory, tried to jump on the bandwagon trashing Hillary Clinton, James Comey and all things smacking of the Washington, DC, political establishment.   Such rants and posturing, of course, ignore the realities faced by would be federal prosecutors, including the burden they would of proving the case beyond a reasonable doubt and how Clinton's conduct would stack up against that of some of her predecessors who likewise failed to follow strict compliance wit Department of State requirements.  Why worry about proving the case and prevailing in  any potential prosecution when the chance for demagoguery and dishonestly is so readily at hand.  Here are excerpts from Think Progress:

Tuesday morning, FBI Director James Comey announced that his agency’s investigation into Democratic presidential candidate Hillary Clinton’s handling of a private email server while she was Secretary of State has come to a close. He also added that the FBI will recommend against criminal charges for Secretary Clinton, stating that “no reasonable prosecutor” could determine that charges were warranted here. It’s an announcement that will surprise no one who is familiar with the underlying law and ordinary Justice Department practices in a case such as this one.

Nevertheless, in part because calls for a Clinton indictment were amplified by Republicans at the highest levels, and in part because of what Josh Marshall described as the media-industrial complex’s quest for “wingnut page views,” the idea that Clinton may face criminal charges has lingered for months. Here’s what you need to know about why such charges were never a realistic possibility. 

Clinton, like her two most recent predecessors Colin Powell and Condoleezza Rice, maintained at least two email accounts: one specifically set up to receive classified information and the other for other communications. Clinton’s non-classified email was hosted on a private server (as opposed to Powell’s non-classified email address, which was an AOL account), while the classified email could only be accessed if Clinton complied with a byzantine array of security rules. 

Clinton says that the emails she received at her non-classified address “were not marked classified,” although she acknowledges that “there are disagreements among agencies on what should have been perhaps classified retroactively.” Government officials also confirm that “none of the emails the State Department redacted, or any other emails made public, contained classification markings at the time they were sent.” Although the FBI determined that 110 emails did contain classified information.

This matters because of a legal concept called mens rea. As a general rule, most crimes require prosecutors to prove that an individual acted with a particular state of mind before they can be convicted of a specific crime. Most federal laws dealing with classified information require someone to “knowingly” violate that law in order to sustain a conviction. Thus, Clinton cannot be charged with transmitting or receiving classified information based on that fact alone.

[A]s ABC News Legal Analyst Dan Abrams explains, several key words in this provision also weigh against charging Clinton. For one thing, a 1941 Supreme Court decision interprets the phrase “relating to the national defense” to require “‘intent or reason to believe that the information to be obtained is to be used to the injury of the United States, or to the advantage of any foreign nation.’ This requires those prosecuted to have acted in bad faith.” That’s a high bar — there’s no apparent evidence that Clinton had reason to believe that her use of a private server would cause information to be obtained that advantaged a foreign nation or that would have caused injury to the United States.

Additionally, the phrase “gross negligence” also requires prosecutors to clear a high bar — “a lack of care that demonstrates reckless disregard for the safety or lives of others, which is so great it appears to be a conscious violation of other people’s rights to safety.”

Indeed, as Comey noted in his announcement, the FBI could not “find a case that would support bringing criminal charges on these facts” as “all the cases prosecuted 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 interference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice.”   “We do not see those things here,” he added.

Setting aside the bare language of the law, there’s also a very important practical reason why officials in Clinton’s position are not typically indicted. The security applied to classified email systems is simply absurd. . . . ndicting Clinton would require the Justice Department to apply a legal standard that would endanger countless officials throughout the government, and that would make it impossible for many government offices to function effectively.

Why Hillary Not Likely to Be Indicted in E-Mail Flap

While the Republican establishment remains distraught and plotting over how to sabotage Donald Trump's possible nomination win, they remain near orgasmic over dreams that Hillary Clinton will be indicted over her use of a private e-mail server while Secretary of State - something we have since learned her predecessors did as well - thus throwing the Democrat side of the election process into chaos.  A column in the Washington Post looks at why this Republican wet dream is unlikely to happen.  Here are excerpts:

For those of you salivating — or trembling — at the thought of Hillary Clinton being clapped in handcuffs as she prepares to deliver her acceptance speech at the Democratic convention this summer: deep, cleansing breath. Based on the available facts and the relevant precedents, criminal prosecution of Clinton for mishandling classified information in her emails is extraordinarily unlikely.

My exasperation with Clinton’s use of a private email server while secretary of state is long-standing and unabated. Lucky for her, political idiocy is not criminal.

There are plenty of unattractive facts but not a lot of clear evidence of criminality, and we tend to forget the distinction,” American University law professor Stephen Vladeck, an expert on prosecutions involving classified information, told me. “This is really just a political firestorm, not a criminal case.”

Could a clever law student fit the fact pattern into a criminal violation? Sure. Would a responsible federal prosecutor pursue it? Hardly — absent new evidence, based on my conversations with experts in such prosecutions.

There are two main statutory hooks. Title 18, Section 1924, a misdemeanor, makes it a crime for a government employee to “knowingly remove” classified information “without authority and with the intent to retain such documents or materials at an unauthorized location.” Prosecutors used this provision in securing a guilty plea from former CIA director David H. Petraeus, who was sentenced to probation and fined $100,000. But there are key differences between Petraeus and Clinton.

Petraeus clearly knew the material he provided to Paula Broadwell was classified and that she was not authorized to view it. “Highly classified . . . code word stuff in there,” he told her. He lied to FBI agents, the kind of behavior that tends to inflame prosecutors.

In Clinton’s case, by contrast, there is no clear evidence that Clinton knew (or even should have known) that the material in her emails was classified. Second, it is debatable whether her use of the private server constituted removal or retention of material.

Another possible prosecutorial avenue involves the Espionage Act. Section 793(d) makes it a felony if a person entrusted with “information relating to the national defense” “willfully communicates, delivers [or] transmits” it to an unauthorized person. That might be a stretch given the “willfully” requirement.

Section 793(f) covers a person with access to “national defense” information who through “gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust.” 

The argument here would be that Clinton engaged in such “gross negligence” by transferring information she knew or should have known was classified from its “proper place” onto her private server, or by sharing it with someone not authorized to receive it. Yet, as the Supreme Court has said, “gross negligence” is a “nebulous” term. Especially in the criminal context, it would seem to require conduct more like throwing classified materials into a Dumpster than putting them on a private server that presumably had security protections.

My point here isn’t to praise Clinton’s conduct. She shouldn’t have been using the private server for official business in the first place. It’s certainly possible she was cavalier about discussing classified material on it; that would be disturbing but she wouldn’t be alone, especially given rampant over-classification.

The handling of the emails is an entirely legitimate subject for FBI investigation. That’s a far cry from an indictable offense.

Colin Powell and Condoleezza Rice Also Used Private E-mail

While it annoys me to no end that Hillary Clinton set her self up for the ongoing e-mail "scandal" - if she knew she was going to run for president why give the Republicans a toe hold? - I have always suspected that others have similarly utilized private e-mail while holding the position of Secretary of State or similarly sensitive positions.  Now, my suspicions have been confirmed by a piece at MSNBC that lays details of out how both Colin Powell and Condoleezza Rice utilized private e-mail while conducting official business during their tenure under the Bush/Cheney regime.  The take away?  The Congressional Republicans and GOP presidential candidates are using Hillary's shortsightedness to fuel a political witch hunt.  Here are highlights:

When the political world’s interest in Hillary Clinton’s State Department emails was near its peak, the Washington Post’s Chris Cillizza defended the media’s fascination with the story. “Democrats, ask yourself this,” Cillizza wrote in August. “If this was a former [Republican Secretary of State] and his/her private e-mail server, would it be a ‘non-story’?”

 

As a rule, I continue to believe that’s a smart way for political observers to look at every story. If the situations were reversed, how would you react to a controversy? If the accusations targeted someone you detest, as opposed to someone you like, would you see the story as legitimate?

 

Cillizza’s question wasn’t really a hypothetical. We learned nearly a year ago from a Politico article that former Secretary of State Colin Powell “also used a personal email account” during his State Department tenure. Several months later, MSNBC found that Powell conducted official business from his personal email account managed through his personal laptop.

 

“But wait,” Clinton’s critics in the media and Republican circles protest, “what about emails that were later deemed to include sensitive information?” NBC News reports today that both of the Bush/Cheney-era Secretaries of State fall into the same category.

State Department officials have determined that classified information was sent to the personal email accounts of former Secretary of State Colin Powell and the senior staff of former Secretary of State Condoleezza Rice, NBC News has learned. […]

 

In a letter to Undersecretary of State Patrick Kennedy dated Feb. 3, State Department Inspector General Steve Linick said that the State Department has determined that 12 emails examined from State’s archives contained national security information now classified “Secret” or “Confidential.” The letter was read to NBC News.

 None of this is to suggest Powell or Rice’s office is guilty of wrongdoing.

 

The political salience of news like this, however, is that Clinton’s critics would like voters to believe she’s at the center of some damaging “scandal” because of her approach to email management. These new details suggest Clinton’s practices were fairly common, and unless Republicans and the media are prepared to start condemning Powell and Rice with equal vigor – an unlikely scenario – it’s starting to look like this entire line of attack lacks merit.

 

Or as the NBC News report put it, the new findings “show that past secretaries of state and senior officials used personal accounts to conduct government business and occasionally allowed secrets to spill into the insecure traffic.”

 

As for Chris Cillizza’s question – if were talking about a former Republican Secretary of State, would it be a “non-story” – it would appear the answer is, “Yep.”

 

Rep. Elijah Cummings (D-Md.), the ranking member of the House Oversight Committee, said in a statement this morning, “Based on this new revelation, it is clear that the Republican investigations [into Clinton’s emails] are nothing more than a transparent political attempt to use taxpayer funds to target the Democratic candidate for president.”  

The Hillary Clinton "Top-Secret" Email Controversy Explained

One of the most exasperating things about the Clintons is that so many of their political problems are self inflicted.  The most recent example is Hillary Clinton's use of a private e-mail server reportedly for "convenience."  Other stories have suggested that she was not alone in employing the practice, but with an eye toward running for the presidency, why give an opening to her enemies? Whether or not there is any legitimacy to claims that she had truly classified or "top secret" information on the server remains to be seen as explained in a piece in Vox.  As we have seen from the Benghazi circus, Republicans will use the claims against Clinton whether they are true or not.  Again, why give them an opening?  Here are article excerpts:

The saga of Hillary Clinton and her emails took an unusual turn on Friday: the State Department announced it is withholding 22 emails because they contain information marked "top secret." And Clinton's campaign immediately objected, putting out a statement demanding that the emails be released.

So what is going on here? Why are these emails top secret, why is it a big deal, and why would Clinton, of all people, want them released?

It's impossible to know the answers to those questions with absolute certainty without seeing the emails. But the key dispute is over whether the classification shows that Clinton was emailing out highly sensitive secrets or if these were everyday emails that just got swept up in America's deeply broken classification system. There's some real reason to believe that the latter is at least possible. Here's what we know and how to parse this latest email controversy.

This might seem unimportant. If it's top secret, then it must be really sensitive, right?
Not necessarily. A large proportion of documents that our government classifies are not actually that sensitive — more on that below. So the key thing now is to try to figure out: Were these emails classified because they contain highly sensitive information that Clinton never should have emailed in the first place, or because they were largely banal but got scooped up in America's often absurd classify-everything practices?

[O]ne good way to make an informed guess is by asking whether the emails were classified at the moment they were sent or whether they were classified only later. The reason this matters is that if they were immediately classified top secret, then that is a good sign that they contained information that is known as "born classified" — that it was information in itself obtained by classified channels or because it was generated internally by classified means. 

[I]f the information were classified only later, then that would indicate it was more banal, or that it was not classified for any reasons particular to the emails themselves. Again, see below on how a boring email could become marked as top secret.

According to a statement by the State Department, "These documents were not marked classified at the time they were sent."

In other words, they do not contain information that was "born classified," but rather fall into the vast gray area of things that do not seem obviously secret at the time but are later deemed that way — not always for good reason.

The American government's system for classifying things as secret is widely considered a giant mess, by which agencies reflexively overclassify things, and the reasons for classifying often make little sense. It is thus extremely easy to imagine that Clinton's emails were classified not because they contained super-sensitive national secrets, and possibly not for any good reason at all, but rather just as a product of America's broken classification system.

This goes back to 1982, when the Reagan administration began a program of such aggressive classification that the unofficial slogan was, "When in doubt, classify." This waned under Bill Clinton but shot back up dramatically under George W. Bush, so much so that by 2004 the mere bureaucracy for classifying documents cost $7 billion per year.

The problem, in other words, isn't that the rules for classification are too strict. It's that the rules are unclear, messy, or contradictory, to the degree that the rules exist at all, and individual people and agencies have learned to overclassify to stay on the safe side.

The problem has grown so severe that it has hampered even the ability of American intelligence officials and policymakers to access the information they need to do their jobs. The head of the 9/11 Commission, Richard Ben-Veniste, told Congress in 2005 that "the failure to share information was the single most important reason why the United States government failed to detect and disrupt the 9/11 plot." He warned, "Information has to flow more freely. Much more information needs to be declassified. A great deal of information should never be classified at all."

Unfortunately this story will be immediately politicized, polarizing people into seeing Clinton as absolutely guilty or absolutely innocent.

The Associated Press got a little carried away in writing this up, declaring that the government had "confirmed" that "Hillary Clinton's unsecured home server contained some of the U.S. government's most closely guarded secrets." Maybe this will turn out to be true, but at present we have no idea that it is, and it strikes me as irresponsible to assert this when anyone who has reported on the government's overclassification addiction knows that classified information is just as likely to be banal as is to be "the US government's most closely guarded secrets."

It makes sense why the Clinton campaign would want these emails released. If they remain top secret, then this will give her Republican opponents an opening to accuse her of bandying highly sensitive secrets around on her private email account, and thus paint her as dangerously irresponsible.

The Clinton campaign's statement is obviously meant to imply that the emails are harmless enough to be immediately released and thus do not contain anything particularly sensitive. But it's also possible this is just a clever bluff.