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://sattkisson.wpengine.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
Tom Lauterback says
I am flabbergasted, frustrated and incensed, but not the least bit surprised. For months, I've answered the "new orange pantsuit" and "Hillary for Jail 2016" posts saying the Clintons are American royalty and there was no chance she'd ever be prosecuted, let alone convicted. Despite the wishful thinking rife in the conservative blogosphere, the fix was in from day one. America has officially become a banana republic starting today. Even though the Clintons and Obamas loathe each other and Obama never showed much if any trust in Hillary when she was Secretary of State, he protected her because she knows too much about him, as do Blagojovich, Reczko, et. al.
Tina Howard says
God bless you Sharyl. You are a true professional, and we appreciate your determination to maintain fact-based reporting.
Mike Montie says
Great points Sharyl, as usual. Keep up the good work.
More to the point, this is not all about Hilly, but also is about her minions, who knowingly and intentionally mishandled classified information to make her life easier. They, too, are not subject to prosecution, though they should be. Sadly, if they were prosecuted, they would immediately turn on Hilly and burn her to the ground, telling, in effect, that it was Hilly who made them do it for her own convenience. The administration can't risk that, so every one of these criminals is allowed to walk. There are 2 systems of justice in this banana republic, one of Hilly and the wealthy, well-connected, and the other for the rest of us rubes. This is one of the saddest days in this country's history.
Was any of it illegal?
Sharyl, you're on target about the future implications and neutering of FOIA. Doing The People's business on private email servers and accounts is already a huge problem and not just at the top. In my home state of Kansas none of the state school board members and most local school board members don't have an official email address. That way they can skirt the state's open records laws. Today isn't the day the rule of law died. It's been dead for years but some people are just waking up to the fact.
Col. Bunny says
I thought that anyone's email is not private because, unless It's encrypted, it must pass through one's internet service provider and various modes until it reaches the addressee's ISP and is available for reading or download by means of one's email client software. Copies are maintained at various points during transmission and sometimes/always backed up at the ISP. Perhaps there is simply a log of what was transmitted or received. Heck, DHS supposedly hungers for the records of our Google searches and online purchases. Why would emails fly through the web like wraiths leaving no trace?
If this is accurate, I've not read that this particular trail of messages has been examined.
Trump's conclusion ["the system is rigged"] is totally correct!
By definition, Gross Negligence has NO intent element to satisfy! Comey LIED!
Earl Gately says
Has it ever been determined in her four years as SOS how she did handle classified documents and emails. If she never knowingly sent or received classified emails via her personal server, was there another means by which she received these emails? I have never heard anyone ask her this simple question. "How did you handle classified emails? Or is it as you claimed that for the entire tenure of your service you were never trusted with anything classified?"
Sharyl, once again you demonstrate your superlative journalistic skills and ability to break down an issue, especially where top officials display contempt for the people they serve.
But, I fear at the end of the day we the people, are nothing more than Cheswicks from “cuckoo’s nest” and all we can do and say is “I want something done”, “I want something done”, “I want something done”, “I want something done”….
Stan Welli says
I wonder if FBI Director Comey was just being realistic. Had he recommended prosecution I believe he would have simply forwarded the Clinton case file to the Department of Justice with very little, if any, comment other than "Now, we'll simply have to wait and see what happens."
But Comey was dealing with the same White House and Department of Justice that imposed executive privilege on e-mails showing that Attorney General Eric Holder was aware of the Fast and Furious gun walking scandal. That move stalled release of the e-mails for about four years, effectively killing Congressional and other action on the debacle.
It's also the same Department of Justice in which Barbara Bosserman, the lead attorney assigned the IRS scandal was found to have contributed $6,750 to President Obama's presidential campaign and the Democratic Committee since 2004. This is the scandal in which Barack Obama told Fox News' Bill O'Reilly in an interview on Super Bowl Sunday in 2014: "There's been some bone-headed decisions (by the IRS) but there's not one smidgeon of corruption."
Finally, there's the untimely (and certainly unseemly) "chance" meeting between former president Bill Clinton and Attorney General Loretta Lynch 'way out in Phoenix last week. Who knows what type of "land mines" may have been planted there?
Director Comey has been around and knows a stacked deck when he sees one. In explaining his decision not to recommend prosecution he educated the public while the scandal was still fresh and not "old news"
mark close says
So in doing us all a favor and "educating" we, the unenlightened .. Comey destroys whatever 'integrity' the FBI had left?
Doesn't sound like something a person who is supposed to uphold the law, a person of integrity would do?
BTW: What everyone has overlooked is .. this whole charade did not start with the 'chance' meeting between Bill Clinton and Loretta Lynch!
As everything else, it started with Obama!
Remember his endorsement of Hillary?
You think that might have sent a clear message?
Mary Lynne O'Brien says
Good job, Sharyl - it's about all of us in a larger framework, as I see it. As We the Peepers stand in the shadows clucking away and wagging our tongues in disgust at what is yet another "exception" made to the somewhat dubious rumored Rule of Law (what is that supposed to be, exactly, one wonders, says Ms. Talkin' outta Both of her Two Faces) ......we become the folks who judge from a distance, and casually become committed to crimes.....of We, the Witnesses. We are NOT, as Mrs. Clinton and her minions tend to see as, witless. We in fact, the Witnesses with Lists of Intentional Wrongdoing, regardless of how one spells the word "the", "mis-speaks" or omits pertinent FACTS. Whether we care to do anything about it will become credible only by OUR manifested INTENTIONS. Maybe it's actually time to rev up another Constitutional Convention and talk about what the Rule of Law is INTENDED to do for all of us that have just paid for the millions of Ben Franklins it took to pay for this "investigation" done by the FBI that just gave us this unfortunate FYI.
The heck with what she "intended". That's clear enough. As my Dad use to say, "if it walks like a duck and talks like a duck, well then, it must be a real quacker." Count on it.
Ellen Bloom says
We honestly appreciate the great work you are doing for us all. You are a hero to many so of us and your insights are enlightening to those of us outside the Beltway. Thank you!
David T. Swan, Col, USMC (Ret) says
I am a recent disciple of your columns and have nothing but praise for your work. Your dissection of Comey's script is inspiring. Having held a Government clearance at all levels during over 40 years of service (USMC & Federal GS @ FBI), I believe there was intention on Hillary's part to ensure no public discovery, through FOIA or any other means, of the records of her dialogue with anyone during her tenure at DOS. There was intent to establish a separate, non-governmental network outside of official channels to hide any mistakes or overt actions for which she could be held accountable as she punched her tickets at Senate and DOS with the undeniable intention to deceive inquisitors and thwart the efforts of any forensic audit of what were really public records under Federal law.
Further, I submit a recommendation to your twelfth finding, the following: 12.Did Clinton’s lawyers “clean” their devices in a way to “preclude complete forensic recovery”? Yes; and this overt act directed by Clinton was done with intent to prevent forensic recovery of deleted information and took full advantage of the blatantly unsecure email monitoring and retrieval system at DOS. That system and many other deficiencies have been identified in audits going as far back as 2003. But Hillary's folly greatly exacerbated an already corrupt system rigged to benefit the executive level of communications at DOS.
Last week I "reminded" Congressman Rob Wittman of Hillary's suspension from receiving classified briefings while under investigation. That probably fell on deaf ears in Congress, although Speaker Ryan mentioned it yesterday as a concern. I'm sure the President ordered briefings to continue, even though she demonstrates extreme carelessness with classified materials. Finally, Comey committed a very bad investigative faux pas when he rendered a personal or FBI opinion not supported by facts that no "reasonable prosecutor" would bring charges based upon the findings. Who was that message to? It was not the American Public, but was to the able-bodied lawyers at DOJ who probably wouldn't mind trying a potshot at the Queen. Of course, sweet Loretta had already rendered her decision knowing full well the outcome of Comey's brief well in advance. And so did the Clinton Campaign, thanks to Bill. Sorry for the length here, but I've been tracking this for a long time. No real surprise at the outcome though. American Justice died at 11 am on July 5, 2016. It truly is, and has been for some time, rigged.
Lower level officials, not in favor, will still be prosecuted. The lesson here is the law is what they say it is when they say it. Tomorrow it could change and be used a tool of control and oppression. These are the characteristics of a dictatorship.
Mike Thomas says
"But the FBI did not find “clear evidence” that they intended to violate laws."
Some of the emails still had the paragraph classifications (C,S,T) but the document itself was missing the classification (the document gets the highest classification of any paragraph). It is apparent someone cut and pasted the information from the document so the document classification would be omitted. This provides direct evidence of the intent to violate the law.
It would be interesting to see if the the wording in the emails exactly match known classified documents. Again, that would provide direct evidence of intent to violate the law.
Whoever sent those emails (likely not Hillary) should definitely be prosecuted.
Mike DeArmond says
So ignorance of the law is now a legal defense?
Feisty Hayseed says
Looking at the chain of events, I have concluded that it was all orchestrated, choreographed, scripted and every minion played their role very nicely. Consider, months ago Barry gave a televised interview in which he essentially said that Old Hillary did nothing wrong - did NOT jeopardize National Security and only admitted that she may have been careless! At the beginning of last week we learn that Slick Willie (the Don of the Clinton Crime Family) meets with AG Lynch in her plane at the airport, AG Lynch claims that they talked about their Golf Games and Grandchildren and then at the end of the week said that she would "accept" the recommendations of her DoJ Career Prosecutors, Old Hillary is questioned by the FBI on Saturday, James Comey comes out on Tuesday and lists the crimes chapter and verse that Old Hillary's committed and then says no "reasonable" prosecutor would indict her. On that very day Barry flies Old Hillary on Air Force One to her campaign rally and speaks for her. Today AG Lynch says "Case Closed" because her Career Prosecutors voted unanimously not to indict! The Fix was in from the moment that Barry made his comments months ago and Slick Willie met with AG Lynch just to lay out how it was going to go down.
David DeCleene says
You always provide us little regular American folk with important research, meticulously assembled and courageously proclaimed. Bravo, Ms. Attkisson!
Thomas Wolke says
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.
William Fredericks says
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?
Soren Roquentin says
and Dems wanna talk about "inequality"?
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.
Excellent summary. Keep up the good work. You are a journalist we can all trust.
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: http://harvardlawreview.org/2015/03/dept-of-justice-new-department-policy-concerning-electronic-recording-of-statements/ , http://www.npr.org/sections/thetwo-way/2014/05/21/314616254/new-doj-policy-calls-for-videotaping-the-questioning-of-suspects , http://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.
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.
Tom Billesley says
Malfeasance in office is a felony. It applies where there is "ignorance, inattention, or malice", with no explicit requirement for intent or knowledge