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.

Will Cuccinelli's Refusal to Resign as Attorney General Prove Fatal to His Campaign?

For decades the political custom has been that sitting Virginia attorney generals who have run for governor have resigned from the position as attorney general in order to campaign full time and avoid the appearance that (i) the dispensation of justice by the AG's office is political and (ii) that taxpayers are being forced to finance the candidate's campaign via the AG's salary.  Not surprisingly, Ken "Kookinelli" Cuccinelli thinks that he is above the unspoken political rules - actually, rules and even the Virginia and U. S. constitutions in general - and has refused to resign his office.  A piece in Blue Virginia looks at how this might prove fatal to Kookinelli's campaign.  Here are highlights:

But again: appearances matter in the law. Justice is suppose to be blind to such factors. Those responsible for the conduct of our legal system have to accept the importance of this ideal.

Moreover, the AG is by law a full-time position with real authority under the Constitution of Virginia. When the public sees someone campaigning full time for governor - as is required - they naturally want to know why this person is being paid a full-time AG's salary. The media will ask. There is no answer that will pass the "smell" test.

in politics, as in business, the customer is always right in that regard. Thus in politics, the winning candidate tries not to give voters a reason to question their judgment, moreover leave himself or herself vulnerable to the inevitable Murphy's law of politics: "Stuff happens."
Accordingly, AG Jerry Baliles in 1985, Mary Sue Terry in 1993, Jim Gilmore in 1997, Mark Earley in 2001, Jerry Kilgore in 2005 and Bob McDonnell in 2009 all resigned while seeking the governorship. They did it at different times in the election year, each calculating the right moment to make the move depending on how they saw the pluses and minuses of holding the post at any point in time.

But they all did it: because when you do the political math, it is the only smart play given game theory. In that regard, they weren't merely doing the mental math of politics: they had a concrete example of what can happen if you try to outsmart common sense.

In 1981, Republican Attorney General Marshall Coleman refused to resign as AG. There were several reasons for his decision, one having to do with money: He didn't have much of it and thus needed the paycheck. Yet the money issue isn't really that big a thing in VA politics: The voters accept the AG resigning, and joining a law firm, being paid a good salary without actually doing any real work. Yes, there is always the appropriate fig leaf of claiming he or she actually does work to earn the paycheck. But give Virginians a break: we aren't dumb. Besides, the role of big law firms in lobbying and having sway over a governor is known to us. We accept that as part of the realities of politics. So they pay a buddy money to run. If he wins, they were going to get a lot of business from him anyway even if he were independently wealthy.

EVERY AG HAS SEEN THE LIGHT...Because they saw what happened to Coleman. By not resigning, Mr. Coleman gave Democrats - and his opponents inside the GOP - a way to keep him on the defensive for the entire campaign. It was a continuous drip, drip, drip, of criticism, even the biggest boulder can be whittled down to a small rock by such constant erosion.

Finally, after months of the drip, drip, drip, Coleman announced that he was going to accept only half-salary. But instead of ending the debate over his refusal to resign, his actions only proved the point: he couldn't do the AG's job and campaign for governor at the same time. Bottom line: Coleman's refusal to resign showed bad judgment. In political terms, he took a risk way out of proportion with the potential gain.

NOW, 32 YEARS LATER, COMES THE MOMENT OF TRUTH FOR MR. CUCCINELLI. .  .  .  . 
Cuccinelli would show extremely bad judgment, for the post of governor, by failing to resign. Why? Because the only reason for him not to resign is to make some obscure ideological or personal point about some imagined philosophic issue or refusing to be pressured by the media, and the like.

This may make him happy, this may make him a hero to his base, but it doesn't show the judgment to be governor at this point in Virginia's history. He would daring McDonnell to criticize him, and he would be daring Democrats to use McDonnell's words to criticize him.

Net, net: If Cuccinelli actually intends to stay on the job through the election, then it will prove to be a metaphor for his campaign in my view. He will be seen as putting his personal and political ideology ahead of what was good for the people of the state who don't want their legal system drawn into partisan politics if it can be avoided.  In the end, voters wants to see if you see the job as a "me" thing, or a "we" thing.

The perverse side of me hopes that Cuccinelli refuses to resign through until the end.  He is a clear and present danger to Virginia's future and, in my view, belongs in a mental ward, not the Governor's mansion.

Questions Obama Must Answer

A little while ago, I was listening to Rachel Maddow discussing Rick Warren's latest video to his church congregation wherein he stated out right lies and accused his gay critics being "Christi-phobes." Using past video taped interviews, Rachel basically made Warren look like a pathological liar and the one who is trafficking in hate speech as opposed to his critics. Rachel's segment also looked at the way in which the Warren "scandal" seems to be growing rather than diminishing. I continue to ask myself WTF was Obama thinking?
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More scathing, however is Christopher Hitchens' column in Slate which not only rightly looks at all the things that make Warren a poor choice on Obama's part, but also asks questions that Obama now needs to answer given his disastrous pick of Warren. I suspect that unless Obama acts quickly to eliminate the Warren problem, it will continue to fester and increasingly harm Obama's image. Here are some column highlights:

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If we must have an officiating priest, surely we can do better than this vulgar huckster. . . . It is theoretically possible to make an apparently bigoted remark that is also factually true and morally sound. . . . However, if the speaker says that heaven is a real place but that you will not get there if you are Jewish, or that Mormonism is a cult and a false religion but that other churches and faiths are the genuine article, then you know that the bigot has spoken.

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That's all in a day's work for the wonderful world of the American evangelical community, and one wishes them all the best of luck in their energetic fundraising and their happy-clappy Sunday "Churchianity" mega-feel-good fiestas. However, do we want these weirdos and creeps officiating in any capacity at the inauguration of the next president of the United States?

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It is a fact that Rick Warren, pastor of the Saddleback Church in Orange County, Calif., was present at a meeting of the Aspen Institute not long ago and was asked by Lynda Resnick—she of the pomegranate-juice dynasty—if a Jew like herself could expect to be admitted to paradise. Warren publicly told her no.

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It is also a fact that Rick Warren proclaims as his original mentor a man named Wallie Amos Criswell, who was the inspirational figure in the rightward move of the Southern Baptist Convention in the 1960s. Rightward in that time and context meant exactly what you might suspect it did—a cold hostility to any civil rights activism on the part of the churches.

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I think we are all entitled to ask and to keep asking every member of the Obama transition team until we receive a satisfactory answer, the following questions:

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1. Will Warren be invited to the solemn ceremony of inauguration without being asked to repudiate what he has directly said to deny salvation to Jews?

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2. Will he be giving a national invocation without disowning what his mentor said about civil rights and what his leading supporter says about Mormons?

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3. Will the American people be prayed into the next administration, which will be confronted by a possible nuclear Iran and an already nuclear Pakistan, by a half-educated pulpit-pounder raised in the belief that the Armageddon solution is one to be anticipated with positive glee?

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As Barack Obama is gradually learning, his job is to be the president of all Americans at all times. . . . However, the man he has chosen to deliver his inaugural invocation is a relentless clerical businessman who raises money on the proposition that certain Americans—non-Christians, the wrong kind of Christians, homosexuals, nonbelievers—are of less worth and littler virtue than his own lovely flock of redeemed and salvaged and paid-up donors. This quite simply cannot stand.

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[I]f we must have an officiating priest, let it be some dignified old hypocrite with no factional allegiance and not a tree-shaking huckster and publicity seeker who believes that millions of his fellow citizens are hellbound because they do not meet his own low and vulgar standards.