Sunday, March 6, 2016

Hillary's Email Server

The Omnivore got into a lengthy Facebook discussion with a lawyer guy who told The Omnivore he should go to law school to learn how to read a statute, who claims that the case against Hillary and her use of a personal server is clear-cut and she will be going to jail soon. The Omnivore doesn't think it's that simple. Let's look.

A Blizzard Of Different Charges

There are a bunch of different allegations (the thumb drive! Records deletion! etc.). The Omnivore wants to focus on the most serious possible charge here--mishandling secure documents. The code in question seems to be 18 U.S. Code § 793 - Gathering, transmitting or losing defense information. You can read it.

The Section (d) Argument

There's a heck of a lot of verbiage there--but the case the lawyer in question made (or tried to make) is that Hillary's server was improper and therefore a defacto violation under the code--most specifically (d).

Section (d) is a violation where you have information lawfully in your possession and do something (intentionally or not) to cause the information to go to someone not entitled to have it (or to retain the data and not deliver it--but this isn't the focus here).

By his reading the ('plain') language of the statute applies because people who were not authorized (technicians, the company that ran the server, etc.

The Omnivore's take on this is that just having the server in your house does not meet this reading. For one thing, technicians who operate on a server (either at the state department or at her house) are not cleared for the information on it--and are not said to have had it delivered to them (or attempted to be delivered to them).

No--the case for Section (d) is if Hillary sent TS data to her aides who weren't clear. The case for that is here: 
If the reports are true about “Top Secret” information being disseminated amongst Clinton and her aides through e-mail, it absolutely increases the likelihood that investigators will find evidence of the sort of activity proscribed by Section 793 — whether through conduct of Clinton herself or by one or more of her aides
Clearly we'll have to wait and see if this happened--but, again, just having and using the personal email server does not trigger section (d).

The Section (f) Argument

The section (f) Argument holds more water. For that section to be in play there has to be "gross negligence" in Hillary's behavior--the use of an unsecured server being, in the basic formulation here, the equivalent of Hillary taking Top Secret Satellite imagery (which was in the emails!) and throwing it out on a public street.

There are two points in favor of this section:
  1. The FBI was said to be investigating section (f).
  2. In 1991 John Deutch was sanctioned (pardoned, though) for having Top Secret documents on his home, unsecured, laptop (under section (f)).
Does this apply more? That's a good question--the answer hinges on whether Hillary was engaged in gross negligence.  In the case of Deutch, he was taking or creating documents marked TOP SECRET home with him (without telling anyone) and working on them there. When he was caught, he was sanctioned.

Hillary, on the other hand, lasted 4 years--with people knowing what was going on--and no one said anything. This would seem to call into question the "gross negligence" element right away. Secondly, the whole question is complicated by the nature of classified information. The Omnivore is unable to verify whether Clinton sent information that was marked Top Secret (or otherwise classified) through her email server. Certainly a lot of the emails have been later marked classified or even Top Secret (the satellite imagery referenced above was incorrectly marked as not-secret according to the article)--but that would not trigger the section (f).

For whatever it is worth, Dan Abrams, Chief Legal Affairs Anchor for ABC News thinks that given what we know today Clinton's conduct does not meet the standard for "gross negligence." People will probably go: "Hey--Mainstream Media" but Abrams has been on the non-liberal side of several events previously--just not this one:
In fact, I recently expressed my view of this investigation to a friend who retorted “I didn’t know you are a Hillary guy?” I guess there is almost no way to analyze this case without being accused of partisanship but then please also mischaracterize me in this context as a Dennis Hastert guy, a George Zimmerman guy, a Brendan Dassey guy, a gun control guy and an anti-Obama guy (just to name a few).
Finally, there's one more point--

The FBI Investigation

We don't know what is going on--we do know that there is an FBI investigation--but whether there is the cited 100 agents or evidence to put Hillary away or not is all conjecture or unsourced rumor. It's clearly something the right wants to believe--and it may well come to pass (there's the Clinton Foundation, deletion of records, and the murder of Vince Foster if you go far enough back)--but it hasn't yet.

Clinton and Deception

One thing is clear: Clinton's use of a private email server was not a best-practice. It seems likely to The Omnivore that she did it to protect her conversation from exactly this kind of inquest. To a degree it (a) seems to have worked and (b) seems to have been justified (Hillary may be paranoid but the GOP really is out to get her). That said, it's still a hit against transparency and honesty--there can be little question about that.

The watchdog group Sunshine thinks Hillary violated the spirit of the law--but not the letter. Despite that, they're quite mad about it. The Omnivore agrees with this. On the other hand, as a NatSec guy writing to The Atlantic noted:
Secondly—and maybe I'm just overly cynical—every since President Ford pardoned Nixon, there's been a pretty clear unwritten rule that there are certain kinds of crimes that are simply not to be prosecuted by follow-on administrations. There is no doubt that very well-known incidents in prosecuting the Afghanistan and Iraq invasions in the aftermath of 9/11, from war crimes to massive financial malfeasance could have—and should have—been prosecuted. But I think Presidents very quickly come to recognize that way lies madness, and nobody wants to start down the slippery slope.
Additional Notes: The other party (in the first paragraph) notes that General Petraeus was charged under a different statute (Title 18 1924) which could well apply to Hillary as well. The trouble is (a) it's a misdemeanor and (b) it requires Hillary's personal email server to be an 'unauthorized location.'

Now, it does make logical sense that it could, in fact, be unauthorized--as far as The Omnivore can tell it isn't clear that anyone authorized it one way or the other--and the investigation into who knew she was doing it (logically: everyone. Officially? No one) is ongoing.

For what it is worth, the Obama administration is on the record saying that her use of a private server WAS authorized:
The Obama administration told a federal court Wednesday that former Secretary of State Hillary Rodham Clinton was within her legal rights to use of her own email account, to take messages with her when she left office and to be the one deciding which of those messages are government records that should be returned.
Now, clearly the Obama admin is in the tank for Hillary--but if the administration says it's allowed that makes the case that it wasn't less than a slam-dunk.

At any rate, The Omnivore's assessment is three-fold:

  1. What Petraeus did (email classified documents to a civilian reporter while conducting an extramarital affair with her) is entirely different than what Hillary did (day-to-day conduct of business using a private email server). While the guy above said what Hillary did is "much worse"--and that may be so--the line up is just not clear cut.
  2. Petraeus plea-bargained down what would likely have been a super-serious go-to-jail offense. In other words, the 1924 statute wasn't the primary offense they charged him with.In the Petraeus case, he was charged as soon as the acts were uncovered. In Clinton's case she did it for years without exactly hiding it (indeed, without hiding it at all). As such, it seems unlikely this would be a primary charge (it was a serious reduction for Petraeus and doesn't fit the model of what Hillary was doing either).
  3. If you, a why-isn't-Hillary-in-jail-right-now guy are moving from a felony a misdemeanor you are already answering your original question. Now, to be clear, the guy says this is just part of what she could be charged with. Okay, sure--but when the debate moves on from a much worse charge (Hillary is a traitor) to a much lesser charge (Hillary should pay a fine) The Omnivore asserts that it's because the former position was looking weak.


  1. Replies
    1. There is a degree of wishful thinking in this--but also if a smart guy like the person I was talking with thinks it's totally black-and-white it's because he's getting that from his world-view--and the media he consumes.


    2. And that's the real problem here. Fox fools some of the people all of the time to the point that down is up. Unless and until that fever swamp breaks, I don't see hope for a healthy, reality-based GOP.