RUTHFULLY YOURS

Another day, another double-take reading the New York Times.

The latest shoe in the investigation of Hillary Clinton’s scandalous mishandling of classified information dropped heavily this week. It had already been reported that, contrary to her denials, hundreds of secret intelligence communications were transmitted over the private, unsecured e-mail system on which the former secretary of state recklessly conducted government business. It is now clear that some of these contained “top secret/SAP” information. (SAP is “special access programs.”) This indicates defense secrets of the highest order, the compromise of which can destroy vital intelligence programs, get covert agents killed, and imperil national security.

Yet, in reporting the story, the Times’ Mark Mazzetti took pains to stress: “The government has said that Mrs. Clinton is not a subject of the investigation.”

Really? Well, to put it in Clintonian terms: It all depends on what the definition of “subject” is.

Though you wouldn’t know it from the Times, “subject” is a term of art in criminal investigations. It refers to one of the three categories into which prosecutors fit every relevant actor. Subjects are people whose conduct is being scrutinized and who, depending on what evidence turns up, may or may not be charged. This distinguishes them from targets, who are suspects virtually certain to be indicted for an obvious crime; and from mere witnesses, whose interaction with a suspect suggests no criminality on their part (e.g., the teller in a bank hold-up, or the neighbor awakened by a fatal gunshot next door).

For law enforcement, targets and mere witnesses are easy to deal with. Targets usually decline to be interviewed (as is their right under the Fifth Amendment). Even if they are not guilty, it is often prudent for them to wait to see what the government alleges before they answer questions. Witnesses tend to speak freely because there is no reason not to.

It’s the political season, and I want to cut Sarah Palin some slack. She and her family have endured disgusting, unjust verbal abuse over the years, and I like her, personally.

But some things cannot be overlooked. I would not be discussing her son’s arrest this week except that, in the highest-profile way, at a Tulsa rally, she did something grotesque and disturbing: She blamed President Obama for the fact that her 26-year-old son beat up his girlfriend this week.

Allegedly, I must say, since he hasn’t yet been convicted. But Palin did not claim that her son was innocent; she instead said that, because he served in Iraq, post-traumatic stress disorder was responsible for his behavior: “I can talk personally about this. I guess it’s kind of the elephant in the room — because my own family, going through what we’re going through today with my son, a combat vet having served in a Stryker brigade fighting for you all, America, in the war zone. But my son, like so many others, they come back a bit different. They come back hardened,” Palin said.

As Politico reported her speech:

“They come back wondering if there is that respect for what their fellow soldiers and airmen and every other member of the military have given so sacrificially to this country, and that starts at the top,” she continued, touting Trump as the best choice for president. “It’s a shame that our military personnel even have to question, have to wonder if they’re respected anymore. It starts from the top. The question, though, it comes from the top, the question, though, that comes from our own president where they have to look at him and wonder, ‘Do you know what we go through? Do you know what we’re trying to do to secure America and to secure the freedoms that have been bequeathed us?’”

As a thought experiment, let us take Hillary Clinton at her word. The dismissive excuse that she has consistently offered is that, to paraphrase, the documents were not “marked” correctly such as to put her on proper legal notice that the specific information revealed therein was, in fact, “classified” at any secrecy level. By this argument, Hillary claims it was “AOK” for her to have “inadvertently” sent them over her unsecured home computer server because, after all, “how was one to know?” She cannot be faulted in any of this because she had no way of realizing at the time that she might be handling secret information — which “after all” was classified as such “retroactively.”

But isn’t this admission disqualifying for a presidential candidate? It raises automatic doubts about her level of mental acuity in reading, assessing, and (most emphatically) appreciating sensitive, high-level information, especially national security info. Whenever she and/or her aides viewed a satellite image did they assume it was from Google Maps? In effect, Hillary is saying that although she had reviewed dozens if not hundreds of emails bearing national security secrets — never once did she recognized on her own that the transmissions contained state secrets. We know this because Hillary cannot admit otherwise. For if Hillary had recognized that the emails carried unsecured state-secrets, this recognition would consequently have immediately burdened her with the duty and obligation to report the insecurity in her communications for correction.

The battle over Florida’s 25 Electoral College votes in the 2000 Presidential election will certainly come to mind when any political analyst thinks of very close, very consequential American ballot disputes.

But as Edward Foley makes clear in Ballot Battles: The History of Disputed Elections in the United States (Oxford Press, 2016), a comprehensive and entertaining history of many such battles over more than two centuries, Florida was only the latest such example.

And in fact, there have been several such battles since the Supreme Court ruled in Bush v Gore in December 2000. These included the gubernatorial race in Washington State in 2004, and the Minnesota U.S. Senate race in 2008. The Minnesota dispute, which lasted well into 2009 before being settled, gave the Democrats the 60th seat in the U.S. Senate enabling the party to overcome a Republican filibuster and pass the Affordable Care Act (“ObamaCare”).

Foley argues, convincingly I think, that the Founding Fathers did not adequately consider the processes for settling ballot disputes, especially when partisans on the local or state level, could corrupt an honest vote count or even use force to pressure voters, and then submit the results they were seeking for certification on a state or Congressional level. Of course, at the time of the drafting of the Constitution, the plan was for U.S. senators to be elected by state legislatures, and U.S. presidents to be elected by electors chosen by these same state legislatures. The popular election of presidents did not begin for several decades with many states first adopting the practice in 1824, and the popular election of U.S. senators not until more than a century later when the 17th Amendment was passed. In any case, the direct election of senators and presidents did not bring with it much in the way of consistent or fair processes for determining the winners in ballot disputes.