For the Record: Yes, Hillary Clinton Should Have Been Prosecuted for Willful Gross Negligence

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Posted: Jun 19, 2018 10:25 AM
For the Record: Yes, Hillary Clinton Should Have Been Prosecuted for Willful Gross Negligence

Late last week, as the furor over the Inspector General report was raging, I devoted a fair amount of my radio show to arguing that Hillary Clinton should have been charged and prosecuted over her email scandal -- the DOJ's handling of which was the subject of the IG's findings.  I've already written extensively about Mrs. Clinton's egregious misconduct, highlighting the reasons why it wasn't just a series of stupid mistakes, and pushing back against unpersuasive arguments about the nature of her actions.  It seems as though this same sticking point has also been bothering Harvard-trained attorney, former JAG officer, and former Cornell Law School lecturer David French, who made his case for prosecution at National Review Online on Friday.  His indictment, rooted in personal experience and deep understanding of the relevant statutes, is compelling:

After reading the analysis, I just flat-out don’t buy that Hillary’s conduct — and her senior team’s conduct — didn’t meet that standard. The key reason for my skepticism is the nature of the classified information sent and received. Remember, as Comey outlined in his infamous July 5, 2016 statement, Hillary sent and received information that was classified at extraordinarily high levels...If you’ve ever handled classified information, you understand that there are often judgment calls at the margins. When I was in Iraq, I often made the first call about classification. In other words, I determined whether to send information up the chain via the unclassified system (NIPRNet) or the classified system (SIPRNet). Entire categories of information were deemed classified by default. Other categories were commonly unclassified. But sometimes, I had to make a choice. And sometimes, the choice wasn’t clear.

The lack of clarity, however, wasn’t between unclassified and Top Secret. Much less between unclassified and Top Secret/Special Access Program (TS/SAP). There might be tough calls between unclassified and confidential — or maybe between unclassified and secret. But the gap between unclassified and Top Secret, much less SAP, was and is vast, yawning, and obvious. In fact, the IG noted that “some witnesses expressed concern or surprise when they saw some of the classified content in unclassified emails.” I bet they did...It’s important to remember that one can’t generally simply copy/paste or forward emails from classified to unclassified systems. (That’s likely why the emails on her homebrew system didn’t contain classified headers.) A person has take information from one source and summarize it or painstakingly type it out on another platform. All of that takes effort. All of it requires intention.

'Over-classification' may be a real issue, but as French states, the problem here was not "at the margins." Obviously and very highly classified material -- including about dealings with Iran and North Korea's nuclear program -- were sent and received through Hillary's bootleg server, to the point that some witnesses were shocked to learn about the type content that was recklessly compromised.  As for his point about the effort and intent that's required to move classified information from a classified system into an unclassified one, that was illustrated in stark relief by Hillary's own virtual paper trail in at least one case, in which she ordered a subordinate to strip the 'identifying heading' from a classified memo and send it over regular email, "nonsecure."  Hillary repeatedly claimed that none of the emails on her server were classified (a laughable lie), then switched to saying none were classified at the time they were disseminated (also a lie).  Desperate, she then turned to arguing that none were marked classified at the time they were disseminated.  

This distinction is irrelevant, a misleading tautology, and also a lie.  It's irrelevant because she signed a binding nondisclosure agreement, under penalty of perjury, that it was her duty to recognize and safeguard classified information, explicitly marked and unmarked as such.  Go back and read French's argument about why the top secret and Special Access Program content was unambiguously classified.  She knew better.  It's a misleading tautology because in any cases, in order for emails to be marked as classified, they would have to go through a review process.  In the vast majority of instances involving her home-brew server, emails were never reviewed (and therefore never marked) because the official system was bypassed; that was the whole point.  It is also a lie because in at least two instances, there were classified markings on the messages.  Hillary told investigators that she didn't know what they meant.  They didn't believe her because her explanation was insultingly absurd.  But they couldn't definitively prove that she was lying.  I repeat: All of this required intent and constituted extreme recklessness that rose to the level of gross negligence.

French also writes, "the IG time and again noted that (among other things) the FBI focused on the apparent lack of intent to violate the law and the lack of a clear precedent for initiating a prosecution under similar facts. It also describes how the FBI wrestled with the definition of 'gross negligence' — concluding that the term encompassed conduct 'so gross as to almost suggest deliberate intention' or 'something that falls just short of being willful.'" Even though the portion of the Espionage Act that applied to Hillary's actions does not call for proof of intent to merit charges, that was the standard Comey decided to consider (and defensibly so, according to the IG).  I'd therefore like to close with three more observations about Mrs. Clinton's demonstrable intent:

(1) The initial act of going through the hassle and process of establishing a private, off-book email server practically screams intent. Clinton's motivation was very likely to work around official channels in order to exert full control over the flow of information (even while making it much easier for hostile actors to penetrate) vis-a-vis public records requests.  She was planning on running for president again, and wanted to be able to use email in such a way that was convenient for her, but impervious to oversight.  If and when she needed inconvenient emails do disappear, she controlled the server on which they were housed, and she could destroy them as needed.  She ended up doing precisely that, too, deleting thousands of emails -- many of which were never recovered.  She lied about whether any of them were work-related (a large number were, and at least three were classified).  She also lied about why she installed the server in the first place.  Her provable lies purporting to explain her actions further legitimize the more cynical explanations and point to intent.

(2) Within three weeks of the existence of Clinton's rules-breaking, unsecure server being publicly exposed, an underling destroyed the contents of her inbox and used a digital tool called BleachBit to permanently wipe the server clean. He later told FBI agents that this was precipitated by an "oh sh*t" moment.  Again, Clinton proceeded to lie about the nature of those deleted emails.  This is the destruction of evidence, followed by lying about what had been destroyed.  Short of a video recording of Mrs. Clinton stating, "I intend to handle classified material in a grossly negligent manner," what more is needed to divine intent?

(3)  All the lying matters.  As Trey Gowdy so skillfully demonstrated in his grilling of Director Comey under oath, prosecutors often use "false exculpatory statements" -- i.e. lies -- to prove criminal intent.  It's arguably true that Mrs. Clinton may not have verifiably lied to the feds (though she was almost certainly misleading in some answers, and FBI agents believed that she'd lied to them).  But it's unquestionably true that she lied, routinely and brazenly, to the American people about these matters.  When you add the reams of false exculpatory statements on top of Clinton's willful act of commission (ordering the server be installed), and the deliberate, frantic destruction of important evidence that could have shed further light on the extent of her recklessness, the "intent" picture looks quite clear.  James Comey gave Hillary the ultimate gift by declining to recommend charges, despite his subsequent actions and decisions that harmed her campaign.