- The American Conservative - https://www.theamericanconservative.com -

Hillary Clinton, Vindicated?

The FBI has decided not to recommend criminal charges for Hillary Clinton over her use of a private email server, but Director James Comey’s explanation [1] of the decision provides some additional information [2] on what occurred and how. Among the 30,000 emails turned over by Hillary’s lawyers were eight chains classified at the highest level—“Top Secret”—plus 36 chains that were “Secret” and eight more that were “Confidential.” Comey went on to describe Hillary Clinton and her aides as “extremely careless in their handling of very sensitive, highly classified information.” Clinton’s behavior was “especially concerning” because her email system was not protected by a full-time government security team—or even by a sophisticated private service such as are employed by companies like Yahoo! and Gmail.

The FBI could find no sign of an intrusion into Clinton’s emails, but Comey noted that the nature of her system, which ultimately employed a number of servers, made it unlikely that the bureau could find such evidence even if an intrusion had occurred. One particular concern was that Clinton’s use of the private server while overseas—within the reach of “sophisticated adversaries”—rendered it “possible” that hackers had gained access. And Comey was careful to note that under normal circumstances, despite an FBI recommendation against criminal charges, behavior like Clinton’s might result in “security or administrative sanctions.”

What Comey did not say, though he suggested it, was that based on precedent, the possibility of obtaining a conviction in court would be minimal given the apparent lack of “intent” to defeat the security system in place with a clear understanding that the activity was illegal. The FBI clearly believed that Hillary Clinton had set up the private server for her own personal convenience—and to maintain control over her emails given her political ambitions, rather than letting them go into the government archive, where they might someday become accessible to the public and media.

As a former government employee who has had Top Secret, Codeword, and Special Access Clearances from the Department of Defense, Central Intelligence Agency, and State Department, I find the Clinton defense that she and her team considered the private server to be acceptable practice untenable. Anyone who has handled classified information knows very well that you do not copy it, you do not send it somewhere else or share it with someone who has no need to know, and you do not edit it down to make it unclassified in your opinion. It is not a matter for discussion, debate, or interpretation. For me and the former government employees in my circle, the entire Clinton charade that has been playing out for so many months is unfathomable. Apart from Clinton’s ignoring the guidelines for proper handling of classified information, outlined in Executive Order 13526 and 18 U.S.C Sec. 793(f) of the federal code, there is also some evidence of a cover-up regarding what was compromised, as many emails were erased. This itself would be a violation of the 2009 Federal Records Act and the Freedom of Information Act.

And then there is the political aspect of the investigation. In retrospect, it is interesting to note President Obama’s two statements regarding the inquiry. His first comment [3] was that he would do nothing to impede the investigation and possible charges, elaborating that “That is institutionally how we have always operated: I do not talk to the attorney general about pending investigations. I do not talk to FBI directors about pending investigations. We have a strict line.” But he followed up by stating that [4] “There’s carelessness in terms of managing emails, that she has owned, and she recognizes. I continue to believe that she has not jeopardized America’s national security.”

This suggests to me that Obama knew in advance where the investigation was going in spite of his disclaimers, and his signal that Hillary would in no way be punished for her actions is particularly telling. He recently endorsed Clinton and is participating actively in her campaign, which he would not have committed to if he’d had any concerns about her being indicted. He had to have known what was going to happen; secure in that knowledge, he has been able to do what he can to make Hillary Clinton the next president of the United States.

But even given all of that, I have to believe that the cautious James Comey did Hillary no favors. Comey has challenged her decisionmaking and as much as conceded that if she were currently a government employee she would be fired. Surely some voters, at least, will pay attention to that. As Robert Gates, who was CIA director under George H.W. Bush and defense secretary under George W. Bush and Obama, recently commented, the “whole email thing … is really a concern in terms of her judgment.” He added, “I don’t know what originally prompted her to think that was a good idea.”

Obama’s denial that national security has been compromised is also suspect. Comey carefully left the door open on that issue, and there have been reports that a Romanian hacker who goes by the name Guccifer repeatedly hacked Clinton’s server. He described the server as “like an open orchid on the Internet” and said “it was easy … easy for me, for everybody.” There have also been claims that Russian intelligence and other foreign services were able to hack the secretary’s server. Anyone with the proper equipment, knowledge, and motivation might have been able to obtain access. That is what hackers are able to do, with considerable success, against government servers that are far better protected than a private email setup located in an official’s New York State home.

change_me

The national media is awash with stories suggesting that Hillary Clinton has been vindicated by the Comey report, but I think not. The reality is much more complex than that, as the Clintons’ contempt for what many might consider “the rules” is again manifest. If Hillary Clinton had been an employee of State Department rather than the politically appointed head of the organization, I have no doubt that she would have been fired at a minimum or, more likely, sentenced to some jail time or subject to punitive fines. I say this because her setting up of a private server to handle government work is so outside the realm of acceptability that there should have been all kinds of warning bells and whistles going off when she decided to do it.

That no one within her entourage objected demonstrates how loyalty to powerful individuals who can advance one’s career, rather than to a government institution and the Constitution, plays out in Washington. It should serve as a warning for what might be coming in January 2017.

Philip Giraldi, a former CIA officer, is executive director of the Council for the National Interest.

30 Comments (Open | Close)

30 Comments To "Hillary Clinton, Vindicated?"

#1 Comment By DES On July 6, 2016 @ 11:43 am

“What Comey did not say, though he suggested it, was that based on precedent, the possibility of obtaining a conviction in court would be minimal given the apparent lack of ‘intent’ to defeat the security system in place with a clear understanding that the activity was illegal.”

If this is what Comey suggested, it reveals an appalling ignorance of the law (I’m being charitable). First of all, the only “intent” required by the relevant statute is gross negligence, which requires only the intent to commit the act itself. There can be no doubt that Hillary “intended” set up a private server in her house with knowledge that it would receive and hold classified information. Whether that amounts to gross negligence would be for the judge to explain and the jury to decide.

If I drive 80 mph through a school district, I am probably guilty of gross negligence. If in the process I injure someone, the issue is not whether I intended to cause the injury. The only question is whether I intended to drive 80 mph (or, for example, did my accelerator get stuck?).

The same holds for the question whether Hillary had “a clear understanding that the activity was illegal.” As every schoolchild knows (or used to know), ignorance of the law is no defense. To return to my earlier scenario, I could not defend myself by arguing that I failed to see the posted 25 mph speed limit.

All in all, this was a disgusting display of legal ignorance and political favoritism.

#2 Comment By John On July 6, 2016 @ 12:15 pm

You know, I’m sure The American Conservative did a story about how 88 members of the Bush White House (including Karl Rove, Andrew Card and Ken Mehlman) transacted official and possibly classified business on RNC-domain email accounts, with the emails of 51 of those being deleted entirely in spite of the Presidential Records Act. I’m sure that it covered the episode in the same breathless, end-of-the-rule-of-law tone as this, and ascribed the same motives and computer savvy to all involved as Hillary Clinton and her aides. But I’m having trouble locating it, for some reason. Could you include a citation here, please? Thanks for your help.

#3 Comment By Kurt Gayle On July 6, 2016 @ 12:40 pm

On May 15, 2015 Hugh Hewitt interviewed former CIA Acting Director and long time Deputy Director Michael Morell. The Q & A came to the matter of Secretary of State Hillary Clinton having a private server in her house:

“HH: As a professional matter, do you believe that at least one or perhaps many foreign intelligence servers, services have everything that went to and from that server?

“MM: So I think that foreign intelligence services, the good ones, the good ones, have everything on any unclassified network that the government uses, whether it’s a private server or a public one. They’re that good.

“HH: So that’s a yes?

“MM: Yup.

With respect Morell’s comments, Hewitt wrote 3 days ago (July 3rd): “Which is why you shouldn’t vote for Hillary Clinton even if she isn’t indicted. Ask yourself how you would feel if your worst…enemies had every bit of email, text and direct messages you had sent and received for the past five years. Would you be vulnerable to them? Could they manipulate you or your correspondents? Could they do so without you knowing? Would they have a detailed knowledge of you, your methods and operations, your strengths and your weaknesses?”

Is this the way that you see it, Philip?

#4 Comment By Kurt Gayle On July 6, 2016 @ 1:19 pm

You say, Philip: “What Comey did not say, though he suggested it, was that based on precedent, the possibility of obtaining a conviction in court would be minimal given the apparent lack of ‘intent’ to defeat the security system in place with a clear understanding that the activity was illegal.”

Rand Paul takes a different view with respect to “intent” and the applicable law:

“There are plainly written laws about this—Title 18 USC Sections 793 and 798, among others. The FBI director singlehandedly changed the meaning of the law Tuesday when he decided that if the intent to harm was not present, then there is no violation. That’s clearly wrong both by plain reading of the law and by practice of previous prosecutions. Gross negligence is the standard, not intentional harm. The top law enforcement officers in our country should know this… This is a loss for the rule of law and further degrades Americans’ faith in the justice system.”

#5 Comment By Jim D On July 6, 2016 @ 1:24 pm

Why didn’t Bill Clinton express objections to her private server? He is savvy enough to understand the cyber security dangers of doing government business on her private server.

#6 Comment By toe the line On July 6, 2016 @ 4:16 pm

“As Robert Gates, who was CIA director under George H.W. Bush and defense secretary under George W. Bush and Obama, recently commented, the “whole email thing … is really a concern in terms of her judgment.”

It also suggests shocking ignorance of basic contemporary technology. She has long had the reputation of living in a bubble – one is reminded of her gaping in wonder at bar code scanners a few years ago (her handlers had persuaded her to visit a supermarket to help humanize her image).

Exacerbated by her sense of impunity and privilege, this ignorance had consequences. Under Clinton, State’s compliance with the already comparatively weak Federal cybersecurity regime fell every year, from a mediocre 79 percent in 2010 to a very poor 50 something percent by 2013.

In sum, jeopardizing national security by “extremely careless” and “reckless” behavior with her own classified official communications is of a piece with the general level of sloppiness, ignorance, and mismanagement that characterized her tenure at State.

#7 Comment By Flavius On July 6, 2016 @ 4:18 pm

There is so much wrong with the progression of this inquiry/investigation that it is impossible to know where to begin and how to plumb the mischief.
It is the responsibility of the President to insure that the administration of justice is conducted without impropriety and without even the appearance of impropriety. The confluence of events since the President endorsed his former Secretary of State while she was under investigation by his Department of Justice and the FBI for serious felony violations, culminating yesterday in Comey’s disjointed press conference, destroys the appearance of propriety.
What is a ‘reasonable’ person to make of an investigation of almost a year involving hundreds, if not thousands, of Agent man hours collapsing into a tarmac meeting between the Attorney General and the subject’s husband, a Saturday interview on the 4th of July weekend with the subject of the investigation, 2 days to digest the results and integrate them into the overall frame of the case, followed by Comey’s announcement that yes there is a case to be made, but no, no action to be taken; while on that very day the President and the subject of the investigation, who has just that moment been let off the hook, albeit with serious prejudice attached, carry on politics as usual on a campaign stop in N.C. as though nothing had ever happened.
Two conclusions: the Agents who worked on that case are seething; something is very rotten in our Executive Branch of government.

#8 Comment By Fred Bowman On July 6, 2016 @ 4:44 pm

IMHO, the fix was in early and what could Comey say that wouldn’t jeopardize his career. It’s sad when the FBI Director is reduce to that of a “messenger boy”. But then, did anybody really expect anything different to happen?

#9 Comment By Neal On July 6, 2016 @ 4:53 pm

Clinton has terrible ideas about foreign policy. She played loose with secrets surrounding those bad ideas. I really wish the media spent as much time debating the terrible ideas as they do her silly email server.

We all have our priorities backwards.

#10 Comment By John On July 6, 2016 @ 6:07 pm

@Kurt Gayle/1:19 p.m.:

Gross negligence is “a conscious and voluntary disregard of the need to use reasonable care, which is likely to cause foreseeable grave injury or harm to persons, property, or both.” It differs from ordinary negligence, which is a “a mere failure to exercise reasonable care.”

To prove gross negligence, Comey would have to prove that Clinton had consciously chosen to disregard classified information protocol (hard to do, if it’s not marked as such), in instances where it might have caused foreseeable and grave injury to national security. That’s a lot to prove – conscious of the problem; acted in reckless disregard; definite instances of injury to national security that could have been anticipated as being grave. To know absolutely whether he had a set of facts which might allow him to do that, you would have to be Comey or a member of the team briefed on everything the investigation turned up.

Mere negligence? Yeah, sure. But gross negligence is a much higher bar, and every personal injury lawyer in America knows it. I wish everybody who complains about how “the fix was in” would just think about what these investigators were being asked to prove here.

#11 Comment By Terry On July 6, 2016 @ 7:50 pm

Mr. Giraldi, is an organized protest being organized?

Where I work there are many with active security clearances who very angry about this abuse of law and corruption, which is obviously fueled by politics.

Will the VIPS help organize a protest? I would happy to help however I can.

#12 Comment By TR On July 6, 2016 @ 8:04 pm

Gates is right as quoted in one of the comments. It’s a “concern in terms of her judgment.” Political judgment, that is. If any important “secrets” had been released, surely with our super-duper intelligence organization, we would know about it by now.

If you consider how many staffers and members of congress have access to “classified information,” and then think of how many have been caught doing all kinds of stupid things on e-mail, you have to suspect that Hillary is not alone.

For years we are told that “top secret” gets stamped on documents for all kinds of inane reasons. And we are shown “freedom of information” requests filled with so many redactions that the absurdity of most classified information speaks for itself.

I don’t think in this highly charged political climate we can have a real discussion on the need for classification and the perils of digital communication, but after November we really should.

#13 Comment By Kurt Gayle On July 6, 2016 @ 8:40 pm

John says: “You know, I’m sure The American Conservative did a story about how 88 members of the Bush White House (including Karl Rove, Andrew Card and Ken Mehlman) transacted official and possibly classified business on RNC-domain email accounts, with the emails of 51 of those being deleted entirely in spite of the Presidential Records Act. I’m sure that it covered the episode in the same breathless, end-of-the-rule-of-law tone as this, and ascribed the same motives and computer savvy to all involved as Hillary Clinton and her aides. But I’m having trouble locating it, for some reason. Could you include a citation here, please? Thanks for your help.”

You made a similar point in The American Conservative on March 10, 2015 in response to a Rod Dreher article. You wrote:

“I would hope the same draconian penalties that were meted out to Karl Rove, Andrew Card, Ken Mehlman and others in the Vice President’s office back in 2007 would also be applied to Mrs. Clinton.”

On March 5, 2015 — five days before your comment in TAC — Fox News Insider ran a piece (with an accompanying video) entitled “Perino: Clinton’s Email Scandal is Not Like 2007 Bush Email Controversy”:

“[Gretchen] Carlson explained that in 2007, Clinton was outraged while she was a senator about what some claimed was President George W. Bush’s administration hiding information on secret email servers. Clinton bashed the administration in a video stating that “our Constitution is being shredded…we know about the secret White House email accounts. It is a stunning record of secrecy and corruption…”

“Fox News chief White House correspondent, Ed Henry, and former White House press secretary, Dana Perino, explained to Carlson what was really going on in 2007 and how it is different from the current situation Clinton is in.”

[5]

#14 Comment By Clint On July 6, 2016 @ 8:46 pm

Obama’s FBI Director Comey has given Trump and his surrogates ammunition to take down Hillary Clinton’s presidential ambitions,more than if he had called for her prosecution.
Comey has just placed Hillary Clinton’s incompetence,lack of veracity (Lies),lack of judgment,gross negligence and her Ruling Class double standard elitist flaunting of the Law into the spotlight for the American voters to see.

#15 Comment By Junior On July 6, 2016 @ 8:56 pm

@John

“You know, I’m sure The American Conservative did a story about how 88 members of the Bush White House…”

I think that you may have confused The American Conservative(TAC) with some NeoCon rag, like The Weekly Standard or National Review, where your questioning of their hypocrisy would be far more apropos.

While I also didn’t find any articles about the Rove deleting of emails in searches of TAC, I did find a plethora of articles condemning the Bush administration like this one about an article from the first issue of TAC:
[6]

And in particular, the author of this article, Mr. Giraldi, has written many an article condemning the NeoCons and calling for accountability in our system:
[7]

While I agree with you COMPLETELY about the crimes of the Bush-Cheney criminal enterprise, you should be just as outraged by the blatant collusion between Lynch/Bill and blatant corruption of the Clinton criminal enterprise. I think that a FAR better question than your questioning of why no articles in TAC about the Rove deleting of emails, is…

Why didn’t the Obama administration do anything about the Rove deletions and hold the Bush administration accountable for their criminal actions?

THAT is what you need to ask yourself and I think that you’ll come to the realization that it’s because they are all feeding at the same corrupted trough.

On a side note…Hey, TAC, what’s with no articles about the Rove deletions? 😉

#16 Comment By Rossbach On July 6, 2016 @ 10:06 pm

Hillary was vindicated to the extent that she truly believes that the wealthy and powerful are not subject to the laws that govern the conduct of ordinary people. She was proven right – again.

#17 Comment By Jim Bovard On July 6, 2016 @ 10:46 pm

Excellent piece, Phil! Thanks for shedding the light of your experience of this charade.

#18 Comment By John On July 7, 2016 @ 1:11 am

@John

[8]

[9]

I would be the first to state how little I expect from Turd Blossom and Company. (In general, there is a fair dose of hypocrisy involved in any modern American political scandal on the part of the prosecuting political party, from Watergate to Lewinsky.) But it’s been well documented for over a year now that what Hillary has done goes a little beyond that. General Patraeus is a more apt comparison than Karl Rove.

Besides, Rove was a pasty ward heeler who existed on Dubya’s good will. Clinton was a power in her own right, a co-head of a major international foundation with many dubious goings-on and the Secretary of State who was the clear heir apparent in the Democratic Party. One is more likely than the other to be targeted by foreign intelligence services than the other, both for actual intelligence and for potential future blackmail. And if Guccifer got in without much of a problem, the GRU would without a trace. Comey more or less implied this during his speech as strongly as he could while still maintaining plausible legal cause to not recommend indictment.

#19 Comment By Ebenezer Arvigenius On July 7, 2016 @ 6:05 am

“There are plainly written laws about this—Title 18 USC Sections 793 and 798, among others. The FBI director singlehandedly changed the meaning of the law Tuesday when he decided that if the intent to harm was not present, then there is no violation.

Given that he has no education in law and that Section 798 makes no mention of negligence I’m at a loss why his uninformed opinion should be of any relevance whatsoever.

#20 Comment By Egypt Steve On July 7, 2016 @ 8:45 am

re: “Why didn’t Bill Clinton express objections to her private server? He is savvy enough to understand the cyber security dangers of doing government business on her private server.”

HRC has said repeatedly she just used the server that had already been set up by WJC for his own use; I assume the whole thing was probably his idea in the first place. As for Clinton being savvy enough to recognize political danger and acting accordingly …

#21 Comment By Clint On July 7, 2016 @ 10:52 am

Rudy Giuliani,
“I am shocked at his (Comey’s) conclusion for two reasons.First of all, he actually clearly concluded that she violated 18 United States Code Section 793, when he said that she was extremely negligent.
That statute does not require intent; it just requires gross negligence, and gross negligence is defined by judges in their charge as extremely negligent.
I don’t know how he could possibly avoid section 793 subsection F, which says impertinent in part, whoever being trusted with or having lawful possession or control of any document related to national defense through gross negligence permits the same to be removed from its proper place of custody shall be fined under this title or imprisoned more than 10 years or both.”

Giuliani was the United States Attorney for the Southern District of New York and Comey’s former boss.

#22 Comment By John On July 7, 2016 @ 11:42 am

My point is, there were no House subcommittee hearings about Colin Powell or Condi Rice’s email practices in 2007. There were no bills asking for the appointment of an independent prosecutor from Nancy Pelosi or Harry Reid, much less any accusations that the Attorney General or FBI Director were following orders not to investigate or indict. So, please, dispense with the hyperbole about how the Republic is dead, the rule of law is over, and the fix is in.

Maybe you might indict her just to see what happens, because you’d really like to litigate this election by means other than a popular vote or the Electoral College. Comey is a career prosecutor and former Republican appointee at the Department of Justice, and he would have had no future in a Clinton administration regardless of what he said on Tuesday. If he says that no reasonable prosecutor would bring this case, maybe it’s worth listening to his professional opinion.

#23 Comment By DES On July 7, 2016 @ 12:41 pm

John says: “Gross negligence is ‘a conscious and voluntary disregard of the need to use reasonable care, which is likely to cause foreseeable grave injury or harm to persons, property, or both.’” And “I wish everybody…would just think about what these investigators were being asked to prove here.”

Accepting arguendo your definition of “gross negligence,” let’s look at what a prosecutor would have had to prove. (Note that “investigators” don’t have to prove anything; they are merely asked to decide whether there a reasonable probability that a crime has been committed.)

Did Hillary “consciously and voluntarily” direct others to set up what she knew was an unprotected private server in her house? Did she do this in violation of the State Department rules, and did she even inquire whether such a practice was permitted thereby? Since this server was clearly to be a “permanent” fixture during her term in office, did she realize that during this period it would very likely receive and hold highly classified information. Did this represent “reasonable care” to protect our national secrets? Did she understand that the possible disclosure of this information to outsiders could “cause foreseeable grave injury or harm” to our national security.

The questions answer themselves. Plus, she later evidenced a guilty state of mind by falsely claiming that none of the emails were marked confidential when she received them.

Bear in mind that we’re dealing here with Yale-educated lawyer, former first lady and U.S.senator, not someone who fell off the turnip wagon.

Any competent prosecutor would have had a field day with these facts. Not a difficult case to prove at all. I’m sure her lawyers would have so advised her and suggested that she attempt to plea-bargain for misdemeanor conviction.

#24 Comment By James Kabala On July 7, 2016 @ 4:33 pm

toe the line:

I find it interesting that the famous exaggerated/false story about George H. W. Bush and bar code scanners has now apparently transferred itself to Hillary. Perhaps it will become one of those stories that lives on with new protagonists for generations to come (although it will scarcely be plausible if told about anyone (e.g., Ted Cruz) born in 1970 or later).

#25 Comment By Victor On July 8, 2016 @ 12:21 am

The only reason Hillary is not going to be charged and prosecuted is that she is a part of a global web of crooked politicians who are paid by global corporations.
Just like we learned not long ago with big banks and corporations they are Too Big To Fail.

#26 Comment By BobPM On July 8, 2016 @ 12:36 pm

The key testimony elicited by the Gowdy investigation was that of the state department IT head, wherein he stated that NO Secretary of State before Kerry used the state.gov email. The question then is how you rate Clinton’s failure to correct what was a pervasive and ubiquitous use of non-governmental email accounts by the prior Secretary’s of State.

It’s hypocritical nonsense to jump on Clinton for what was the standard practice of top officials in the prior administration. At least she did not destroy 22 million emails during an investigation into violations of the Hatch Act.

#27 Comment By floaters On July 8, 2016 @ 8:23 pm

“It’s hypocritical nonsense to jump on Clinton for what was the standard practice of top officials in the prior administration. “

I like this idea. Henceforth, as laws, regulations, and standard practice change, I’ll do as I please and tell people who don’t like it that it’s hypocritical nonsense to jump on me for doing what people used to do before the laws, regs, and standards changed.

#28 Comment By Egypt Steve On July 11, 2016 @ 1:12 am

re: “Giuliani was the United States Attorney for the Southern District of New York and Comey’s former boss.”

Giuliani also tried to foist that mobbed up hack Bernie Kerrick on us as Secretary of Homeland Security, and he embezzled many tens of thousands of dollars from the taxpayers of the City of New York, paying for his jaunts out to the Hamptons to bang his mistress. I don’t wanna hear anything that Giuliani has to say about anything connected to good or ethical governance.

#29 Comment By Junior On July 11, 2016 @ 6:34 pm

@John

“Comey is a career prosecutor and former Republican appointee at the Department of Justice, and he would have had no future in a Clinton administration regardless of what he said on Tuesday.”

You clearly have no understanding of what the Deep State is. You act as if the final goal of these corrupted individuals is public service. The payoff comes AFTER they have sold out the American public when they return to the private sector. If you doubt this in any way, please take a look at where Mr. Too-Big-To-Fail-So-No-Prosecutions Eric Holder went after selling the American public down the river to the banks for personal gain. I might add that the article below is from Salon, so spare us the “right-wing conspiracy” BS.

[10]

#30 Comment By Junior On July 11, 2016 @ 6:55 pm

@John

[11]