Why Hillary Clinton is unlikely to be indicted over her private email server
It is a shame that we have to keep going over and over the same material, but forlorn hope springs eternal in the right wing mind.
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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. Finally, the aggravating circumstance of false statements to federal agents is, as far as we know, absent.
The government used the same statute in 2005 against former national security adviser Sandy Berger , who was sentenced to probation and fined $50,000 . Here, too, the conduct was more evidently egregious than what the public record shows about Clinton’s. Berger, at the National Archives preparing for the 9/11 investigations, twice took copies of a classified report out of the building, hiding the documents in his clothes.
For Clinton, the worst public fact involves a 2011 email exchange with aide Jake Sullivan. When she has trouble receiving a secure fax, Clinton instructs Sullivan to “turn [it] into nonpaper [with] no identifying heading and send nonsecure.” But Clinton has said she was not asking for classified information. In any event, it does not appear her instructions were followed.
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 government has used the “gross negligence” provision to prosecute a Marine sergeant who accidentally put classified documents in his gym bag , then hid them in his garage rather than returning them, and an Air Force sergeant who put classified material in a Dumpster so he could get home early.
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.
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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.
Rather than a partisan pundit, this what an actual former federal prosecutor has to say:
T he known evidence that Mrs. Clinton committed federal crimes is abundant, perhaps even overwhelming . It is manifest that she lawlessly transmitted and stored classified information outside its secure system, and that she caused her underlings to do so. But remember, there is also the evidence that is unknown to the public — though it is being pored over by the FBI: the 32,000 e-mails Clinton refused to turn over to the State Department (which involved converting them to her private use) and attempted to destroy by trying to delete them (i.e., to wipe her private server clean).
As I’ve previously pointed out, the federal embezzlement statute makes it a felony to destroy government files or convert them to one’s private use. The FBI has reportedly been able to recover at least some and possibly all of the e-mails Clinton tried to erase. Unless you really believe that one of the busiest high officials in the U.S. government had time for 32,000 e-mails about yoga routines and Chelsea’s wedding dress, it is inevitable that some of those e-mails, probably a goodly portion, related to State Department business — i.e., they were government files.
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Like the Watergate incident , it only became a major issue when Nixon resorted to erase tapes . Likewise Hillary's complicity becomes more apparent when she tries to delete files from her private server ...
And here's a former Attorney General of the United States arguing charges are justifed:
I am not even a lawyer and I can dispose of this
from her direction that classification rules be disregarded,
not illegal, if it even happened
to the presence on her personal email server of information at the highest level of classification,
retroactively classified, no proof of intent
to her repeated falsehoods of a sort that juries are told every day may be treated as evidence of guilty knowledge
biased argumentation from a Republican partisan is not conclusive of criminality by Clinton
—it is nearly impossible to draw any conclusion other than that she knew enough to support a conviction at the least for mishandling classified information.
Sean , they have to prove that Clinton intentionally mishandled classified material.
I have posted over the months articles that contain the opinion of a dozen or so legal experts from all political persuasions who not only say there will be no indictment, they give detailed reasons.
Your desperation over this issue precedes you, and it is pretty funny.
Keep laughing at Hillary's attempts at covering up her misdeeds by wiping her private server files ...
ot illegal, if it even happened
Of course it is. Hillary doesn't have the power to disseminate information classified top secret by the CIA or other intelligence agencies. How could you believe otherwise?
i
retroactively classified, no proof of intent
Why do you say that like it means something legally? She signed a disclosure form stating that she understood information is classified regardless of markings.
to her repeated falsehoods of a sort that juries are told every day may be treated as evidence of guilty knowledge
How many lies have you repeated on this site from Clinton talking points only to have the facts prove otherwise? The story of the last year has been Clinton lying and then moving the goalposts when her lies are exposed.
"There's no classified material on the server" WHOOPS!
"There's a dispute about whether any of the information was classified" WHOOPS!
"She only passively received classified information, she didn't author any emails containing classified info," WHOOPS!
"The material wasn't classified at the time she received it" WHOOPS!
Etc etc...
How often are you going to parrot her lies before you realize you being played for a fool?
ntentionally mishandled classified material.
The private server with no security safeguards that she used to do her job is all the proof nessary of intent. Gross negligence is the standard under 18 U.S. Code & 793 subsection (f). Gross negligence doesn't require actual intent. The whole point of the server was to avoid legitimate oversight. Do you think Hillary wasn't aware that she'd be handling classified information in her position as Secretary of State. How dumb do you believe she is?
You are delusional.
Sean, how can Hillary Clinton have intended to pass along or receive classified information when she says she did not know it was classified (because it wasn't, until later)? Intent cannot be manufactured retroactively, as much as you wish it could be.
Stay in denial, it is your issue, not anyone else's.
If she cannot figure out why what she did was wrong, she isn't smart enough to be president. The reluctance of the Obama administration to even consider what she did was wrong is an example of the reason trump has so many supporters. Political families who are so powerful as to be above the law is one thing wrong with our great country.
She was secretary of State. Handling classified information is part of her job description. It was inevitable that she would send and receive classified information once she decided to ignore the rules and do her job using an unprotected server. The desire to perform her job, which necessitates dealing in classified information, without the required government oversight was the whole purpose of the private server. Intent doesn't get much plainer.
How dumb would she have to be to not understand that?
You don't have a case.
Sean, send her a letter and ask her how she handled classified information as Secretary Of State. Maybe you will learn something.
In my opinion Clinton will not be indicted, she probably should be but will not. I think the FBI will recommend charges be filed, and Attorney General Lynch will sit on the case. There is no law that says Lynch has to convene a pursue an indictment, she will simply do nothing just like in the fast and furious case. If Sanders or Clinton are elected you will have a democratic attorney general that will do nothing. If a republican is elected president there will not be an indictment because it will appear as though they are targeting a democratic female politician, which would burn to much political capital.
Clinton although more than likely guilty, will get through this without a scratch.