RUTHFULLY YOURS

It is galling the day after July 4th to be greeted by yet one more official at the highest level of government, who has declined to respect the rule of law in favor of giving a free pass to the Obama Administration.

FBI Director Comey indicted Hillary Clinton in the court of public opinion by laying out before the TV cameras, step by step, her gross negligence in handling classified material, including Top Secret information that would compromise our national security if made accessible to our enemies. He told us Clinton sent classified information over servers not as safe as a simple gmail account. He told us it is impossible for the FBI to ascertain what foreign hostile actors may have accessed her account, but there is good evidence to believe that the information was hacked.

We do assess that 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. We also assess that Secretary Clinton’s use of a personal e-mail domain was both known by a large number of people and readily apparent. She also used her personal e-mail extensively while outside the United States, including sending and receiving work-related e-mails in the territory of sophisticated adversaries. Given that combination of factors, we assess it is possible that hostile actors gained access to Secretary Clinton’s personal e-mail account.

He told us that it is a federal felony “to mishandle classified information …in a grossly negligent way.”

He told us a second statute makes “it a misdemeanor to knowingly remove classified information from appropriate systems or storage facilities.”

He then described in clear, specific detail how Sect. of State Clinton knowingly removed classified information from appropriate systems and storage facilities. He concluded “there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.”

According to former New York Mayor Giuliani the legal definition of gross negligence is to be extremely careless.

The definition of gross negligence under the law is extreme carelessness…the FBI clearly found a direct violation of 18 United States code section 793 which does not require intent — it requires only gross negligence in the handling of anything relating to the national defense. …It’s the first definition that comes up in the law dictionary…It’s the definition the judges give to juries when they charge injuries on gross negligence. Negligence equals carelessness. Gross negligence equals extreme carelessness. So that is a clear absolutely unassailable violation of 18 United States Code, section 793, which is not a minor statute, it carries ten years in prison.

“The big loser is the #NeverTrump movement. Instead of driving Hillary Clinton out of the race and enabling a Democrat with integrity to run, James Comey — perhaps terrified at the ramifications of indicting the presumptive nominee of a major political party just weeks before its national convention — has helped to bring an ignorant, unhinged, bigoted, lying, demagogue ever closer to the White House.”

With his announcement that he will recommend against prosecution of Hillary Clinton for her email peccadilloes, FBI Director James Comey has set off a political IED, with shrapnel flying in all directions.

The most severely injured is the #NeverTrump movement, of which I am a proud member.

As a purely legal matter, Comey had the stuff to nail the former Secretary of State to the wall of a federal penitentiary. Top-secret information is officially defined as material the unauthorized disclosure of which could be expected to cause “exceptionally grave damage” to national security.
Hillary Clinton sent and/or received such ultra-sensitive information using her homebrew servers, exposing it to hacking. If that is not the “gross negligence” in handling classified materials defined and punishable by statute, then nothing is.

Yet Comey, relying on prosecutorial discretion, recommends against indicting Clinton, distinguishing her case from other security-violation prosecutions in the past.

Four factors were involved in those, he says, that were absent here: obstruction of justice, disloyalty to the United States, disclosure of “vast quantities” of secrets in a way that supports an inference of “intentional misconduct,” and, finally, “clearly intentional and willful mishandling of classified information.”

It seems that the FBI found no trace of the first three. But what about the last? Comey reports evidence that Clinton and her associates “were extremely careless in their handling of very sensitive, highly classified information.” But, relying on a remarkably pinched conception of “intentional and willful,” he lets them off the hook.The players here are all highly experienced national-security hands who had been briefed innumerable times on information security regulations. If setting up a private server to handle official communications was not an intentional and willful act, what was it, somnambulism?It cannot be disputed that if any rank-and-file foreign service officer had done a scintilla of what Team Hillary did to circumvent security, he or she would be looking at a long stay behind bars.

WASHINGTON — Hillary Clinton and her team clearly skirted the most basic rules for the handling of classified information, and their actions as outlined Tuesday by the director of the FBI went well beyond carelessness to an open flouting of known practices, security experts inside and outside the administration said Tuesday.

Experts were especially disdainful of the FBI’s finding that highly classified information turned up in emails that Clinton sent and received on her unsecured server. That alone was in violation of the Foreign Affairs Manual, a comprehensive set of State Department policies, that, among other restrictions, require that a different computer system be used when dealing with classified documents and that a physical distance, or “air gap,” separate it from other computers.

“If she didn’t want to carry two systems, she could have had a staffer or one of the agents assigned to her protective detail hand her the (other) system,” said Scott Stewart, vice president of tactical analysis for Stratfor, an Austin, Texas-based global security consultancy. Stewart is a former Diplomatic Security Service special agent for the State Department.

Failing to maintain that dual system “is just unconscionable, especially if we are putting code-word material on an unclassified system,” Stewart said, referring to the practice of compartmentalizing classified cables or documents with code words that ensure access only on a “need-to-know” basis. Seven of the emails found on Clinton’s email server were classified Top Secret/Special Access Program, FBI Director James B. Comey said.

“That’s not carelessness. That was intentional,” Stewart said.

Comey said that Clinton also used her personal email extensively “in the territory of sophisticated adversaries,” a practice he said made it “possible that hostile actors gained access to Secretary Clinton’s personal email account.”

He did not name the countries — Clinton traveled to 112 nations while in office — but the U.S. government has warned repeatedly in recent years about the dangers of cyber intrusions throughout the world. Last year, President Barack Obama stopped staying at the iconic Waldorf-Astoria Hotel in Manhattan for the annual United Nations General Assembly session because the property had been sold to an insurance company in China, a nation that would certainly qualify as a “sophisticated adversary.”

Here’s the good news for Hillary Clinton: The FBI has recommended no charges be broughtfollowings its investigation of the former secretary of state’s private email server.

Here’s the bad news: Just about everything else.

FBI Director James Comey dismantled large portions of Clinton’s long-told story about her private server and what she sent or received on it during a stirring 15-minute news conference following which he took no questions. While Comey exonerated Clinton legally speaking, he provided huge amounts of fodder that could badly hamstring her in the court of public opinion.

Most importantly, Comey said the FBI found 110 emails on Clinton’s server that were classified at the time they were sent or received. That stands in direct contradiction to Clinton’s repeated insistence she never sent or received any classified emails. And, it even stands in contrast to her amended statement that she never knowingly sent or received anyclassified information.

Comey condemned Clinton and her top aides as “extremely careless” in how they handled classified information during her time as the head of the State Department, adding: “Any reasonable person … should have known that an unclassified system was no place” for that sort of information.

There was more — much more. Comey said Clinton had used not one but multiple private email servers during her time at State. He said Clinton used multiple email devices during that time. (She had offered her desire to use a single device for “convenience” as the main reason she set up the private server.) He noted that the lawyers tasked by Clinton with sorting her private emails from her professional ones never actually read all of the emails (as the FBI did in the course of its investigation). Comey said that while the FBI found no evidence that Clinton’s private server was hacked by foreign governments, it was “possible” that it had been. He argued that the Clinton lawyers had deleted emails as personal that contained professional content and that while the FBI found some of those emails in its investigation, it was certainly possible more existed that they were unable to track down.

FBI Director James B. Comey spoke Tuesday about the bureau’s investigation into Hillary Clinton’s handling of emails while she was secretary of state. During his remarks, Comey touched on or revealed six new things about the probe:

1. More than 100 messages across dozens of chains contained classified information when they were sent or received

Comey said that investigators looked through tens of thousands of emails and found dozens with information that was deemed classified when they were sent.

“From the group of 30,000 emails returned to the State Department, 110 emails in 52 email chains have been determined by the owning agency to contain classified information at the time they were sent or received,” Comey said, according to his prepared remarks. “Eight of those chains contained information that was Top Secret at the time they were sent; 36 chains contained Secret information at the time; and eight contained Confidential information, which is the lowest level of classification.”

Comey also said that among thousands of emails investigators found that were not turned over by Clinton’s lawyers (more on that in a moment), three of them were classified when they were sent — one at the “Secret” level, and two at the “Confidential” level.

Though Comey said that “only a very small number” of the emails containing classified information were marked to note that fact, he added that even without the marking, people “who know or should know that the subject matter is classified are still obligated to protect it.”

In addition, Comey also said another 2,000 emails investigators reviewed were “up-classified” to become confidential. That means the information in these emails was not classified when it was sent, but some agency later changed that classification.

2. “Several thousand work-related emails” were not among those Clinton returned to the State Department

In 2014, lawyers for Clinton gave the State Department more than 30,000 emails that she said had represented all of her work-related correspondence during her time as secretary of state.

However, Comey said that investigators “discovered several thousand work-related emails that were not in the group of 30,000 that were returned by Secretary Clinton to State in 2014.”

Comey outlined how the FBI wound up finding these emails, describing a painstaking process that involved using everything from archived government accounts to looking through different severs.

“We found those additional emails in a variety of ways,” Comey said. “Some had been deleted over the years and we found traces of them on devices that supported or were connected to the private email domain. Others we found by reviewing the archived government email accounts of people who had been government employees at the same time as Secretary Clinton, including high-ranking officials at other agencies, people with whom a secretary of state might naturally correspond. This helped us recover work-related emails that were not among the 30,000 produced to State.”

Comey said that agents “found no evidence” that any of the emails not among the 30,000 returned in 2014 were deleted as a way to hide them, but he also said it was not a surprise to learn many emails were found outside of that batch.

Read these: FBI Rewrites Federal Law to Let Hillary Off the Hook
By Andrew C. McCarthy — July 5, 2016
http://www.nationalreview.com/node/437479/print

There is no way of getting around this: According to Director James Comey (disclosure: a former colleague and longtime friend of mine), Hillary Clinton checked every box required for a felony violation of Section 793(f) of the federal penal code (Title 18): With lawful access to highly classified information she acted with gross negligence in removing and causing it to be removed it from its proper place of custody, and she transmitted it and caused it to be transmitted to others not authorized to have it, in patent violation of her trust. Director Comey even conceded that former Secretary Clinton was “extremely careless” and strongly suggested that her recklessness very likely led to communications (her own and those she corresponded with) being intercepted by foreign intelligence services.

Yet, Director Comey recommended against prosecution of the law violations he clearly found on the ground that there was no intent to harm the United States.
In essence, in order to give Mrs. Clinton a pass, the FBI rewrote the statute, inserting an intent element that Congress did not require. The added intent element, moreover, makes no sense: The point of having a statute that criminalizes gross negligence is to underscore that government officials have a special obligation to safeguard national defense secrets; when they fail to carry out that obligation due to gross negligence, they are guilty of serious wrongdoing. The lack of intent to harm our country is irrelevant. People never intend the bad things that happen due to gross negligence.

I would point out, moreover, that there are other statutes that criminalize unlawfully removing and transmitting highly classified information with intent to harm the United States. Being not guilty (and, indeed, not even accused) of Offense B does not absolve a person of guilt on Offense A, which she has committed.

It is a common tactic of defense lawyers in criminal trials to set up a straw-man for the jury: a crime the defendant has not committed. The idea is that by knocking down a crime the prosecution does not allege and cannot prove, the defense may confuse the jury into believing the defendant is not guilty of the crime charged. Judges generally do not allow such sleight-of-hand because innocence on an uncharged crime is irrelevant to the consideration of the crimes that actually have been charged.

It seems to me that this is what the FBI has done today. It has told the public that because Mrs. Clinton did not have intent to harm the United States we should not prosecute her on a felony that does not require proof of intent to harm the United States. Meanwhile, although there may have been profound harm to national security caused by her grossly negligent mishandling of classified information, we’ve decided she shouldn’t be prosecuted for grossly negligent mishandling of classified information.

I think highly of Jim Comey personally and professionally, but this makes no sense to me.

Finally, I was especially unpersuaded by Director Comey’s claim that no reasonable prosecutor would bring a case based on the evidence uncovered by the FBI. To my mind, a reasonable prosecutor would ask: Why did Congress criminalize the mishandling of classified information through gross negligence? The answer, obviously, is to prevent harm to national security. So then the reasonable prosecutor asks: Was the statute clearly violated, and if yes, is it likely that Mrs. Clinton’s conduct caused harm to national security? If those two questions are answered in the affirmative, I believe many, if not most, reasonable prosecutors would feel obliged to bring the case.

Hillary’s Banana Republic FBI Director James Comey meticulously outlined Hillary Clinton’s wrongdoing and lies — before announcing she would face no consequences.
By David French — July 5, 2016

Tuesday morning, FBI Director James Comey stepped up to a podium and calmly and methodically demolished every single Hillary Clinton lie, spin, and evasion regarding her misuse of classified information. Months of deception blew up in her face. And then Comey decided to make her president of the United States.

Rarely have 30 minutes of television so perfectly encapsulated the decline and fall of the rule of law and the extraordinary privileges enjoyed by America’s liberal elite. After listing abuse after abuse — and detailing lie after lie — Comey declared that “no reasonable prosecutor” would prosecute Hillary for her obvious and manifest crimes. It’s good to be a Clinton.

As we ponder the magnitude of Hillary’s wrongdoing, consider the facts as uncovered by the FBI investigation. Begin with the stunning and sobering reality that Clinton sent and received Secret and Top Secret information from her unclassified, unsecured e-mail account. Here’s Comey:

Seven e-mail chains concern matters that were classified at the Top Secret/Special Access Program level when they were sent and received. These chains involved Secretary Clinton both sending e-mails about those matters and receiving e-mails from others about the same matters. There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation. (Emphasis mine.)

Federal Bureau of Investigation Director James Comey opened and closed his statement to the press Tuesday with expressions of gratitude and pride to be associated with the bureau. His description of FBI agents’ work on the Hillary Clinton email investigation showed why he feels that way. Whether the rest of his statement—explaining why he wasn’t recommending prosecution of Mrs. Clinton—should make the feeling mutual is an open question.

The agents had to reconstruct thousands of emails from a series of private servers used and abandoned over the years, some of them turned into confetti in the process. The FBI agents also had to tease out from the files of other government employees emails that they might have received from or sent to Mrs. Clinton during her tenure as secretary of state, and weigh their importance.

Unlike Mrs. Clinton’s own lawyers—who decided which emails to produce by reading just the headings—the agents read each of the many thousands of emails and fragments that passed through their hands. The job was made no easier by the decision of those lawyers to obliterate the email record they had examined, making it impenetrable to forensic examination. All in all, these tasks of the agents bear comparison with the labors of Hercules.
Moreover, that the FBI seems to have limited its inquiry to the two federal criminal statutes mentioned in Mr. Comey’s statement appears entirely reasonable. The level of intent and specificity necessary to prove purposeful intent to destroy government records, or intent to obstruct justice—even assuming such activity was afoot—would have required testimony by an actively cooperating participant. Plainly, no such cooperation was forthcoming.

That left the two statutes discussed in Mr. Comey’s statement—one a felony, the other a misdemeanor—and here the announced decision is harder to understand.

It is a felony for anyone entrusted with lawful possession of information relating to national defense to permit it, through “gross negligence,” to be removed from its proper place of custody and disclosed. “Gross negligence” rather than purposeful conduct is enough. Yet Mr. Comey appears to have based his recommendation not to prosecute on the absence of “clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information”—though he did say in the same sentence that there was “evidence that they were extremely careless in their handling of very sensitive, highly classified information.”

As an example of the kind of information at stake, he described seven email chains classified at the Top Secret/Special Access Program level. These were the emails that the government had said earlier are so sensitive that they will never be disclosed publicly. Mr. Comey went further, citing “evidence to support a conclusion that any reasonable person in Secretary Clinton’s position . . . should have known that an unclassified system was no place for that conversation.” To be “extremely careless” in the handling of information that sensitive is synonymous with being grossly negligent.

And what of the finding that the investigation did not disclose “clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information”? Even the felony statute requires no such evidence, and no such intent.

The misdemeanor involves simply the knowing removal of classified documents to an unauthorized location. That is the statute to which David Petraeus, the former U.S. Army general and Central Intelligence Agency director, pleaded guilty in 2015. (He had disclosed classified documents to his biographer/mistress, who also had top-secret clearance, returned the information to him and never disclosed it in his biography or elsewhere.)

Mr. Comey mentioned three considerations prosecutors weigh in considering charges: the strength of the evidence, “especially regarding intent”; “the context of a person’s actions”; and “how similar situations have been handled in the past.”

Criminal intent of the usual sort, as noted, is not a requirement of either statute.

The only reference to context in the statement—other than repeated references to the extreme secrecy of the information—is the disclosure that the “security culture” of the State Department pertaining to email in particular was “generally lacking in the kind of care . . . found elsewhere in the government.” If that is meant to suggest that Mrs. Clinton was the victim of a bad culture, it seems fair to point out that she headed the agency where it existed.

The “similar situations in the past” in which prosecutions were brought were said to be limited to those involving “clearly intentional and willful mishandling of classified information” or “vast quantities” of information disclosed with an inference of intent; or evidence of disloyalty or obstruction of justice. CONTINUE AT SITE

For our money, the most revealing words in FBI Director James Comey’s statement Tuesday explaining his decision not to recommend prosecuting Hillary Clinton for mishandling classified information were these: “This is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences. To the contrary, those individuals are often subject to security or administrative sanctions.”

So there it is in the political raw: One standard exists for a Democratic candidate for President and another for the hoi polloi. We’re not sure if Mr. Comey, the erstwhile Eliot Ness, intended to be so obvious, but what a depressing moment this is for the American rule of law. No wonder so many voters think Washington is rigged for the powerful.
***

Mr. Comey spent nearly all of his media appearance laying out the multiple ways in which Mrs. Clinton’s use of a private email server for official State Department business had violated official policy and jeopardized America’s secrets. Yet at the end he declined to recommend prosecution because her behavior was merely “extremely careless” rather than “grossly negligent” as the law requires. This is a rhetorical distinction without a difference that deserves to be mocked.

Mr. Comey’s facts grossly—if we may use that word—belie his conclusion. Of the 30,000 work-related emails Mrs. Clinton turned over to State, 110 contained classified information at the time they were sent or received. Eight email chains contained information judged to be Top Secret. The FBI also found three emails containing classified information among emails that Mrs. Clinton had deleted (rather than turned over to State)—but which the FBI was able to find through forensic analysis.
The FBI chief’s statement also had the effect of exposing the many lies Mrs. Clinton has told about her emails.

• Mrs. Clinton claimed she “did not email any classified material” over her private email. Mr. Comey refuted this with precise numbers.

• She said her private server was permitted under State policy. Mr. Comey said “none of these e-mails should have been on any kind of unclassified system.”

• She said the emails she sent or received weren’t “marked” classified. Mr. Comey said that, marked or not, “participants who know or should know that the subject matter is classified are still obligated to protect it.”

• Mrs. Clinton said she used personal email merely for the “convenience” of using one device. Mr. Comey revealed that she had “used numerous mobile devices to view and send email on that personal domain” as well as numerous servers.

• Mrs. Clinton claimed she turned over all work-related email to State. Mr. Comey said the FBI found “several thousand” work-related emails that were not turned over. He also dropped the astonishing news that Mrs. Clinton’s lawyers hadn’t even read her emails when deciding what to turn in. They relied on “header information” and search terms, and then “cleaned their devices in such a way as to preclude complete forensic recovery.”

• Mrs. Clinton claimed her email was stored in a safe and secure manner, and not hacked. Mr. Comey said “hostile actors” had accessed the private account of “people with whom Secretary Clinton was in regular contact from her personal account.” Her personal email was known about and “readily apparent.”

He said she “used her personal email extensively while outside the United States, including sending and receiving work-related emails in the territory of sophisticated adversaries.” Therefore, he added, “it is possible that hostile actors gained access to Secretary Clinton’s personal email account.”

Despite this list of indictable particulars, Mr. Comey concluded that none of it warrants a criminal prosecution. His justification is that her behavior didn’t meet the standard of “clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice.” CONTINUE AT SITE

We are the hollow men
We are the stuffed men
Leaning together
Headpiece filled with straw. Alas!
Our dried voices, when
We whisper together
Are quiet and meaningless
As wind in dry grass
Or rats’ feet over broken glass
In our dry cellar

Shape without form, shade without colour,
Paralysed force, gesture without motion.

— T. S. Eliot

In Merced or Dayton, if an insurance agent, eager to help his wife facing indictment, barged into a restaurant where the local DA is known to lunch, he would almost certainly be told to get the hell out.

But among the Washington elite, the scenario is apparently quite different. The two parties, in supposedly serendipitous fashion, just happen to touch down at the same time on the Phoenix corporate tarmac, with their private planes pulling up nose to nose. Then the attorney general of the United States and her husband, in secrecy enforced by federal security details, welcome the ex-president onto her government plane. Afterward, and only when caught, the prosecutor and the husband of the person under investigation assure the world that they talked about everything except Hillary Clinton’s possible indictment, Loretta Lynch’s past appointment by Bill Clinton and likely judicial future, or the general quandary of 2016.

There has been a lot of talk since Brexit and the rise of Donald Trump of the corrosive power and influence of the “elite” and the “establishment.” But to quote Butch Cassidy to the Sundance Kid, “Who are those guys?”

In the case of the ancient Romans or of the traditional British ruling classes, land, birth, education, money, government service, and cultural notoriety were among the ingredients that made one an establishmentarian. But our modern American elite is a bit different.

Residence, either in the Boston–Washington, D.C., or the San Francisco–Los Angeles corridor, often is a requisite. Celebrity and public exposure count — e.g., access to traditional television outlets (as opposed to hoi polloi Internet blogging). So does education — again, most often a coastal-corridor thing: Harvard, Yale, Princeton, Berkeley, Stanford, etc.

Net worth, whether made or inherited, helps. But lots of billionaires, especially Midwestern sorts, are not part of the elite, in that their money does not necessarily translate into much political or cultural influence — or influence of the right sort. (Exceptions are Chicago traders who bundle millions for Hillary.)