‘Gross Negligence’ The espionage law Mrs. Clinton might have broken. By James Taranto
http://www.wsj.com/articles/gross-negligence-1445017423
If you’re Bernie Sanders, you’ll want to stop reading now, because you’re sick and tired of hearing about the subject of today’s column. For everyone else:
Fox News reports that the FBI investigation into Hillary Clinton’s illicit email server “is now focused on whether there were violations of an Espionage Act subsection pertaining to ‘gross negligence’ in the safekeeping of national defense information”—this according to “an intelligence source familiar with the investigation”:
Under 18 USC 793 subsection F, the information does not have to be classified to count as a violation. The intelligence source, who spoke on the condition of anonymity citing the sensitivity of the ongoing probe, said the subsection requires the “lawful possession” of national defense information by a security clearance holder who “through gross negligence,” such as the use of an unsecure computer network, permits the material to be removed or abstracted from its proper, secure location.
Subsection F also requires the clearance holder “to make prompt report of such loss, theft, abstraction, or destruction to his superior officer. “A failure to do so “shall be fined under this title or imprisoned not more than ten years, or both.”
Power Line Blog’s Paul Mirengoff quotes the statute in full, while the DailyMail.com offers this pithy headline summary: “Investigation Into Hillary’s Email Server Focuses on Espionage Act and Could Get Her 10 Years in Jail as FBI Agent Says She Could Be Prosecuted Just for Failing to Tell Obama.” Since she was in the cabinet, the president was her “superior officer.”
Fox’s source “said investigators are also focused on possible obstruction of justice”:
A former FBI agent, who is not involved in the case, said the inconsistent release of emails, with new documents coming to light from outside accounts, such as that of adviser Sidney Blumenthal, could constitute obstruction. In addition, [Mrs.] Clinton’s March statement that there was no classified material on her private server has proven false, after more than 400 emails containing classified information were documented.
The New York Times, meanwhile, reports that the agents working on the case were “angered” by President Obama’s assertion in a CBS interview—noted here Tuesday—that “this is not a situation in which America’s national security was endangered”:
To investigators, it sounded as if Mr. Obama had already decided the answers to their questions and cleared anyone involved of wrongdoing.
The White House quickly backed off the president’s remarks and said Mr. Obama was not trying to influence the investigation. But his comments spread quickly, raising the ire of officials who saw an instance of the president trying to influence the outcome of a continuing investigation—and not for the first time. . . .
The White House said Thursday that Mr. Obama was not commenting on the merits of the investigation, but rather was explaining why he believes the controversy over Mrs. Clinton’s emails has been overblown.
In other words, the White House defense is that the president was just talking out his—well, this is a family newspaper, so let’s say he was blowing smoke. The agents’ concern echoes a Wall Street Journal editorial: “Our guess is the President knew exactly how he was compromising the FBI investigation.”
An earlier example of such presidential kibitzing, the Times notes, involved David Petraeus, the former CIA director who shared classified information with his inamorata. “I have no evidence at this point, from what I’ve seen, that classified information was disclosed that in any way would have had a negative impact on our national security,” Obama said in 2012, while that investigation was under way.
In the Petraeus case, “the F.B.I. ultimately concluded that Mr. Petraeus should face felony charges and a possible prison sentence.” The FBI director, James Comey, “made the case to the attorney general, Eric H. Holder Jr.”:
But the Justice Department overruled the F.B.I., and earlier this year the department allowed Mr. Petraeus to plead guilty to a misdemeanor.” . . .
Although current and former senior officials at the Justice Department who were involved in the case said the decision was not influenced by the White House, F.B.I. agents came to view Mr. Obama’s remarks about Mr. Petraeus as a harbinger of the ultimate outcome.
Something similar happened in the case of another former CIA director, John Deutch, who was discovered to have stored classified information on a home computer connected to the Internet. A 2000 CIA Inspector General report disclosed that the agency investigated and referred the case to then-Attorney General Janet Reno, who declined to prosecute.
Later, however, Deutch reportedly agreed to plead guilty to a misdemeanor count of mishandling government secrets. But as the Associated Press reported in 2001, Mrs. Clinton’s husband, then president of the United States, pardoned him on his last day in office, before the Justice Department had filed the requisite paperwork. Obama could forestall any indictment of Mrs. Clinton by pardoning her, but as that would imply that she’s guilty of something, the politics of such a move would be dodgy to say the least.
Both Fox and the Times quote Comey as saying earlier this month: “If you know my folks, you know they don’t give a rip about politics.” No doubt that’s true, but the as-yet-unanswered question is how many rips the new attorney general, Loretta Lynch, gives.
Meanwhile, Sen. Sanders’s “sick and tired” remark has raised an objection from a surprising source: Mother Jones, the left-wing magazine. “Some Americans are not sick and tired of her damn emails, and they want to hear more,” notes reporter AJ Vincens:
The Republican members of the Benghazi committee and FBI investigators, who are currently looking into how classified material ended up on the server, are well-known examples. But there are also 32 separate lawsuits related to public-records requests for the disputed emails from [Mrs.] Clinton and some top staffers during her time as secretary of state.
These requesters range from media outlets to Republican activists. Many of the suits are focused on specific foreign policy issues that she was likely to have addressed while secretary of state.
Among them is a Vincens colleague: “Shane Bauer, a Mother Jones reporter, who is suing the CIA, the FBI, and the State Department for records related to each agency’s handling of his imprisonment in Iran.”
In 2013, as the Hill noted, Obama made the rather preposterous claim that “this is the most transparent administration in history”:
The president said this holds true even on the issue of the attack on a U.S. Consulate in Benghazi, Libya, a controversy which he said was “driven by campaign” politics and one that Congressional Republicans were clinging to even though they’ve “run out of questions.”
“Benghazi is not a good example,” Obama said. “We’ve had more testimony and more paper than ever before.”
That was long before the House empaneled its Select Committee on Benghazi, which discovered that Mrs. Clinton was using a private server for all her emails. If Obama’s administration is far from the most transparent in history, once he leaves office he may be able to claim credibly that it is no longer the least transparent. Should Mrs. Clinton succeed him, her administration will be only, as she puts it, “as transparent as I know how to be.”
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