HILLARY CLINTON ISN’T GETTING INDICTED. Â HERE’S WHY.
BY IAN MILLHISER of THINKPROGRESS NEWSÂ
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. She had to have acted with knowledge that specific information was classified when it was transmitted. There is little, if any, evidence that Clinton possessed this state of mind.
There is, however, one law which does require a mens rea other than knowledge in order to sustain a conviction. Under this provision,
Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—Shall be fined under this title or imprisoned not more than ten years, or both.
Yet, as 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.â€
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.â€
“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. For this reason, a former CIA general counsel told the Washington Post’s David Ignatius, “’it’s common’ that people end up using unclassified systems to transmit classified information.†“’It’s inevitable, because the classified systems are often cumbersome and lots of people have access to the classified e-mails or cables.’ People who need quick guidance about a sensitive matter often pick up the phone or send a message on an open system. They shouldn’t, but they do.â€
Indicting 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.
I watched the news conference and have read a couple of articles. Here it is in a nutshell.
Evidence was discovered to support the assertion that criminal acts happened. Evidence proved that Hillary did not speak the truth to the American people about her emails. Evidence supports the assertion that classified government documents may have been lost forever due to routine purging of old data on a private set of servers. It is apparent that the Clinton State Department was careless and clueless about the handling of classified information.
In spite of all of this evidence it is not established that Hillary and her cohorts had the presence of mind to know this so “willful breaking of these laws” has a very low probability of being proved so she avoids prosecution.
Hillary’s clueless digitally illiterate Grandma defense, coupled with her underlings case of mass amnesia has allowed her to avoid accountability. Now we sadly have to choose between a “reckless, clueless, lying” candidate and “Biff from Back to the Future” for president of the USA. Costa Rica is looking better every day.
Choosey mothers choose Biff…or Costa Rica. If Trump is the threat some believe, then the choice is between a slow or fast train wreck.
Joe. It’s not a criminal Act unless she intended to do these acts. Since she didn’t will fully do these acts they are NOT ILLEGAL OR CRIMINAL.
On one statute you are correct. On the other “gross negligence” is sufficient to convict. There is a very fine line between “extreme carelessness” which Comey attributed to the Clinton State Department and “gross negligence”. Quite frankly I think they are about the same thing.
The decision not to recommend prosecution as in all criminal recommendations was made on the strength of the evidence. The strength of the evidence to establish that crimes were committed was pretty darn high based on the words of Comey.
What must have been lacking is sufficient evidence to pin the crime on any particular donkey. When the front line staffers all developed cases of mass amnesia, the guy who installed the server plead the 5th, and the Queen Bee herself lawyered up, the truth was obfuscated from being able to prove which of the individuals could be proven guilty. Some may even consider the mass amnesia as obstruction of justice.
At least you acknowledge a Trump presidency would create chaos.
comey said crooked doormat harry clinton is without a doubt a liar………dumb as a box of rocks that fits nicely in the box that is barry husseins administration………………after this fbi report clinton should never ever be given a security clearance………….Mr.Trump has done nothing wrong except to the msm and commie radical left that hates the ideal of enforcing our imagration laws an making and putting America first……….Mr.TRUMP…………………2016……………..
Imagine that. We come a long way in non stick coatings since teflon.
Also next time a drunk drives over and kills innocent people the drunk just needs to plead the comey rule no intent no crime……………………
OH NO, what will Fox news talk about now?
Oh no what will msm talk about now
…………………….
…………………….oh…………….debbie…………………😯
WASHINGTON (The Borowitz Report)—In a stunning rebuke to one of the nation’s oldest and most established law-enforcement agencies, House Republicans voted unanimously on Tuesday to abolish the Federal Bureau of Investigation.
Unlike most House measures, which come up for a vote only after months or even years of sluggish effort, the bill to eliminate the F.B.I. was drafted in a matter of minutes on Tuesday morning, Republican staffers confirmed.
House Speaker Paul Ryan offered no specific reason for the Republicans’ sudden frenzy of activity to abolish the F.B.I., but said that the Bureau represented “big government at its worst.â€
“This is an agency that, when given even the simplest task to do, can’t manage to do it right,†he said.
Representative Trey Gowdy of South Carolina bemoaned the F.B.I.’s “bloated and wasteful†annual budget of eight billion dollars, which he said could easily pay for an additional eleven hundred Benghazi investigations…………..
It amazes me people care about some emails but not lying to start a war that cost thousands of lives and not to mention trillions of dollars. I’m no Hillary fan but this email thing is a joke.
Today’s date is July 6, 2016. Bush is no longer president, and the war is now Obama’s. I would like to wait for you to catch up, but tomorrow doesn’t wait. I am however encouraged that you are no Hillary fan.
With all of Hillary Clinton’s scandles, dishonesty and lack of personality, it amazes that she has a gnats ass of a chance to be elected President of the United States.
At least Donald Trump has the balls to call a turd for what it is. Let’s pray for a Trump Presidency!
If you are praying to God Hoyt, I imagine he would say, WTF!.
Just move to Canada and leave me out of this if you are that damn stupid.
Didn’t you learn nothing from the Bush-Cheney bullshit? – God may say.
Just my opinion on what God would say Hoyt.
And in that realm, my opinion is as good as any….
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