The following is a news commentary and analysis
It’s a felony to mishandle classified information either intentionally or in a grossly negligent way.
It’s a misdemeanor to knowingly remove classified information from appropriate systems or storage facilities.
On these points, there’s unanimity.
There’s not so much unanimity when it comes to how one interprets “intention,” “knowingly” and “gross negligence.”
[button link=”https://sharylattkisson.com/?p=2955″]The Definitive Hillary Clinton Email Timeline[/button]
Here’s a breakdown of FBI Director James Comey’s findings in explaining why Hillary Clinton won’t be prosecuted in the infamous email case.
- Did Clinton improperly use personal email and systems for government work? Yes.
- Was classified information improperly stored on Clinton’s personal systems? Yes, although she claimed the opposite.
- Was classified information improperly transmitted through Clinton’s personal systems? Yes, about 2,000 emails, although she claimed the opposite.
- Was any of the information marked classified at the time it was sent or received? Yes, although she claimed otherwise. (Though the FBI could not recover all of Clinton’s emails, among the ones it reviewed, 110 e-mails in 52 e-mail chains contained classified information, including Top Secret, at the time they were sent or received.)
- Did the presence of the classified emails violate protocol? Yes. The FBI noted, “None of these e-mails should have been on any kind of unclassified system.”
- Should she have known better? Yes.
- Were Clinton and her colleagues careless in their handling of the public’s classified information? Yes, the FBI found Clinton and her colleagues were “extremely careless” in their handling of “very sensitive, highly classified information.” But the FBI did not find “clear evidence” that they intended to violate laws.
- Were Clinton’s systems vulnerable, thus exposing the classified information? Yes, the FBI found Clinton used systems that were even less secure than “a commercial service like Gmail.”
- Did Clinton’s actions jeopardize classified information? Yes.
- [quote]Was Clinton’s email information, including classified material, likely accessed by hostile forces? Yes, because the FBI found, Clinton “extensively” used her personal, unsecure email systems “in the territory of sophisticated adversaries.” Additionally, the FBI found, “hostile actors gained access to the private commercial e-mail accounts of people with whom Secretary Clinton was in regular contact from her personal account.”[/quote]
- Did Clinton likely destroy public, work-related emails that are unrecoverable? Yes.
- Did Clinton’s lawyers “clean” their devices in a way to “preclude complete forensic recovery”? Yes.
- Was the FBI able to reconstruct the mysterious electronic sorting of records done by Clinton’s lawyers? No. The FBI says it does not have “complete visibility” but assumes there was no “intentional misconduct.”
- Is there evidence that Clinton potentially violated laws on handling of classified information? Yes, but the FBI says, “our judgment is that no reasonable prosecutor would bring such a case.”
- Would someone in similar circumstances face consequences? Yes, the FBI says such individuals have often been “subject to security or administrative sanctions.” But the FBI said that’s not what it was deciding “now.”
Beyond the FBI Probe
There were further important public issues not addressed by the FBI today. They involve public records laws and the cost borne by the public, due to Clinton’s failures.
Did Clinton allegedly violate public records laws? Yes, through use of the private servers and devices, failure to maintain required public records, temporary and permanent deletion of many records, and failure to fully disclose the records when asked.
Did Clinton turn over all her public work records to the State Department in 2014 when her public servers were discovered? No.
Did Clinton make all of the public’s records available when requested under Freedom of Information (FOI) law (as far back as 2012 or even earlier)? No.
Have all those records now been provided to FOI requesters? No.
Due to Clinton’s actions, the FBI said that recovering documents and piecing together facts was “a painstaking undertaking, requiring thousands of hours of effort.” And your tax dollars paid for it.
It’s Not All About Hillary
In some respects, the implications of the FBI’s findings aren’t about Hillary– they’re about the rest of us. As a layman, here’s my interpretation:
Any federal employee is now free, despite what the law may say, to make personal arrangements to communicate the public’s business using private servers, administrators, accounts and devices. They may send and receive classified material using these servers, even in hostile territory subject to hacking by sophisticated adversaries. They may routinely destroy the public-owned records they create–some of them permanently–and, if their actions are discovered, they may provide false public statements about their content. They are free to violate public records law and fail to turn over public records upon request (making Freedom of Information law meaningless and toothless). And prosecutors will view questionable acts in the most innocent light and one that’s the most favorable to the subject of the investigation. Unless they can find what they term “clear evidence” of “intent to violate laws,” you’re off the hook!
Read FBI Director Comey’s statement: https://www.fbi.gov/news/pressrel/press-releases/statement-by-fbi-director-james-b.-comey-on-the-investigation-of-secretary-hillary-clintons-use-of-a-personal-e-mail-system
Of course, maybe that isn’t the takeaway. Maybe things would turn out differently if the circumstances were the same, but the subject of the investigation were different.
Last year, a Naval Reservist who mishandled classified information was prosecuted, fined and his security clearance permanently revoked, though “The investigation did not reveal evidence that [he] intended to distribute classified information to unauthorized personnel.”
Read the FBI case against Nishimura: https://www.fbi.gov/sacramento/press-releases/2015/folsom-naval-reservist-is-sentenced-after-pleading-guilty-to-unauthorized-removal-and-retention-of-classified-materials
Malfeasance in office is a felony. It applies where there is “ignorance, inattention, or malice”, with no explicit requirement for intent or knowledge
No one has brought out the worst part: Comey said her emails may have been hacked by foreign enemies. If so, now enemies of the US have blackmail material. If Hillary were to become president, enemies would blackmail her. That’s why this issue is so dangerous to the country, in addition to the illegality of her obstruction of justice and destruction of evidence, each crimes in themselves.
Another point no one mentions: Fed regulations say anyone who does not return classified material is INELIGIBLE TO HOLD ANY PUBLIC OFFICE. She is is not even eligible to become president.
I’m surprised that no Republican in Congress nor journalists like you, Sheryl, has yet mentioned the following.
First, in his initial announcement, Comey claimed that the FBI had searched for other cases that were similar to Hillary’s where the person was indicted … specifically when there was no intent to harm the US (as Comey claimed was the case with Hillary) … and found none. Yet here is one from just last year from the FBI’s own website: https://www.fbi.gov/sacramento/press-releases/2015/folsom-naval-reservist-is-sentenced-after-pleading-guilty-to-unauthorized-removal-and-retention-of-classified-materials . That case alone, which is extremely similar in detail after detail, proves that Comey lied and should have recommended indictment.
Second, Comey lied in his testimony to Congress when he claimed it’s FBI policy not to record interviews. He said “We don’t record.” But as of 2014, it is indeed policy for the FBI to record suspect interviews. Here are 3 links proving it: https://harvardlawreview.org/2015/03/dept-of-justice-new-department-policy-concerning-electronic-recording-of-statements/ , https://www.npr.org/sections/thetwo-way/2014/05/21/314616254/new-doj-policy-calls-for-videotaping-the-questioning-of-suspects , https://www.huffingtonpost.com/2014/05/22/fbi-recording-policy_n_5374413.html . The last one even quotes Eric Holder, who preceded Lynch, boasting about it.
Finally, Comey has demonstrably lied regarding the necessity of intent as well. Now that is something that’s been mentioned by Republicans and the conservative journalists, but I’d like to see them address the other two lies now. Clearly, Comey is not to be trusted. He’s protecting Lynch and Obama, at the very least, so they don’t have to make the explosive decision not to indict. Or Comey outright works for Hillary.
Either case, it’s time to see the House impeach Comey. Of course, he’d never be convicted in the Senate … too many Democrats … but impeachment would at least take the investigation out of the hands of the FBI, which clearly is a problem. Impeachment would mean that the agents who *supposedly* interviewed Hillary could be identified and questioned under oath (Comey refused to identify them). Impeachment would allow those FBI agents who want to speak out but who are now likely being silenced by gag orders to come forward. Impeachment would provide an avenue to the truth that right now the FBI, State Department and DOJ are now blocking. And impeachment would put the issue front and center in front of the American people in a manner they could not ignore.
Excellent summary. Keep up the good work. You are a journalist we can all trust.
Sharyl, if the FBI really wanted the missing emails why don’t they just contact the nsa? If you recall, the nsa saves every email. Makes me think the whole investigation is nonsense.
This concept (nsa info gathering) has not been brought up in anything I have read or seen in regard to Mrs Clinton.
Exactly right AC. In fact, if you read the mission statement and “core values” of the NSA this should be right in their wheel house and they should have been a close partner with the FBI in this investigation.
Copy/paste from their web site below …
NSA Mission Statement:
The National Security Agency/Central Security Service (NSA/CSS) leads the U.S. Government in cryptology that encompasses both Signals Intelligence (SIGINT) and Information Assurance (IA) products and services, and enables Computer Network Operations (CNO) in order to gain a decision advantage for the Nation and our allies under all circumstances.
NSA Core Values:
Honesty – We recognize that national leaders and the American people at large have placed great trust in us, and we strive at all times to be deserving of that trust. We will be truthful with each other, and honor the public’s need for openness, balanced against national security interests.
Respect for the Law – Everything that we undertake in our missions in grounded in our adherence to the U.S. Constitution and compliance with U.S. laws and regulations that govern our activities.
Integrity – We recognize that national leaders and the American people at large have placed great trust in us, and we strive at all times to be deserving of that trust. We will behave honorably and apply good judgment as we would if our activities were under intense public scrutiny.
Transparency – We embrace transparency to the fullest extent possible. We never forget that we, too, are Americans and that every activity we engage in is aimed at ensuring the safety, security, and liberty of our fellow citizens.
and Dems wanna talk about “inequality”?
As a person with a current clearance and a former TS EBI clearance I can’t say how totally disgusted I am. People have died to protect the secrets of this country including the methods used to protect the communications of those secrets. The other aspect that no one seems to be talking about, who were the people that crossed the boundary of the classified networks and put that information on her server in the first place?
I can think of two possible reasons that Comey let Hillary skate. One is that the statute she violated on mishandling classified material states that anyone with knowledge of the infraction is also guilty if they didn’t report it. Considering that Obama and everyone else Hillary emailed knew she was using a private server and email system, that would leave a lot of people open to indictment. That would include grounds for impeaching Obama and as we all know, he’s untouchable. The second is that the FBI wasn’t able to determine intent because the probable motivation for the email scheme, hiding the incestuous relationship between the State Department and the Clinton Foundation, can’t be assessed until access to the emails is provided by the State Department. And now it won’t be until 2018 until they’re released. So it may be that Comey decided to toss the ball into the new incoming Attorney General’s lap so that the two criminal activities can be linked. He certainly told the public in an unusual press conference just how nefarious Hillary has been, so perhaps he thinks that will derail her Presidential bid. Of course, there are other possible reasons why Comey failed to do his job. He may not have wanted to influence the Presidential election or he may have wanted to help ensure the Democrats have a weak candidate. He might even have simply been told that if he wants to keep his job, he’ll recommend not charging her. I hope Comey tells Congress the truth, but truth is a rare commodity in Washington these days.
You always provide us little regular American folk with important research, meticulously assembled and courageously proclaimed. Bravo, Ms. Attkisson!