Gaius Publius: Picking Up James Comey’s Pieces — What He Did, What He Should Have Done & Why

Yves here. This post is detailed and carefully argued, so get a cup of coffee. If you want a companion piece as to why Comey’s arguments for letting Clinton off the hook were indefensible, the best one-stop shopping is 5 Reasons The Comey Hearing Was The Worst Education In Criminal Justice The American Public Has Ever Had. Please send this post and that link to Clinton defenders.

By Gaius Publius, a professional writer living on the West Coast of the United States and frequent contributor to DownWithTyranny, digby, Truthout, and Naked Capitalism. Follow him on Twitter @Gaius_Publius, Tumblr and Facebook. Originally published at at Down With Tyranny. GP article here

It’s going to be a while before the jury of informed comment returns a verdict regarding James Comey’s pre-emptive declaration of “no prosecution” for Hillary Clinton. But let’s see what a first look gets us. I want to start with a couple of points made by Marcy Wheeler, then amplify them from other sources. The questions at issue are:

  • Should James Comey have made the call not to prosecute?
  • Should Clinton be prosecuted at all?
  • If she should be prosecuted, why?
  • If she should have been prosecuted, why wasn’t she? 

Some of these questions we can answer now. Others will have to wait until the people who specialize in this material discuss it more fully, which could take a while.

Comey Had No Business Making a Prosecutorial Decision

We can start with something we’re sure of. From Marcy Wheeler, in a piece called “Does Jim Comey Think Thomas Drake Exhibited Disloyalty to the United States?” we find this initial point (bolding in original):

Before we get into his argument, consider a more basic point: It is not Jim Comey’s job to make prosecutorial decisions. Someone else — whichever US Attorney oversaw the prosecutors on this case, Deputy Attorney General Sally Yates, or Loretta Lynch — makes that decision. [H]e has no business making this decision, and even less business making it public in the way he did (the latter of which points former DOJ public affairs director Matthew Miller was bitching about).

Alex Emmons, writing at The Intercept, agrees:

FBI Director Comey Preempts Justice Department By Advising No Charges for Hillary Clinton

FBI Director James Comey took the unprecedented step of publicly preempting a Justice Department prosecution when he declared at a press conference Tuesday that “no reasonable prosecutor” would bring a case against Hillary Clinton for her use of a private email server.

The FBI’s job is to investigate crimes; it is Justice Department prosecutors who are supposed to decide whether or not to move forward. But in a case that had enormous political implications, Comey decided the FBI would act on its own.

“Although the Department of Justice makes final decisions on matters like this, we are expressing to Justice our view that no charges are appropriate in this case,” he said. Prosecutors could technically still file criminal charges, but it would require them to publicly disagree with their own investigators.

Matthew Miller, a former spokesman for the Justice Department under Eric Holder, also agrees, and is quoted by both Wheeler and Emmons. Emmons account (my emphasis):

Matthew Miller, who was a spokesman for the Department of Justice under Attorney General Eric Holder, called Comey’s press conference an “absolutely unprecedented, appalling, and a flagrant violation of Justice Department regulations.” He told The Intercept: “The thing that’s so damaging about this is that the Department of Justice is supposed to reach conclusions and put them in court filings. There’s a certain amount of due process there.”

Legal experts could not recall another time that the FBI had made its recommendation so publicly.

“It’s not unusual for the FBI to take a strong positions on whether charges should be brought in a case,” said University of Texas law professor Steve Vladeck. “The unusual part is publicizing it.”

Which leaves us with a mystery. Why did Comey do this?

It Looks Like Comey Said “No Prosecution” So Loretta Lynch Wouldn’t Have To

Wheeler thinks Comey is covering for Attorney General Loretta Lynch, his boss, whose reputation for impartiality was damaged by her recent tarmac meeting with Bill Clinton. Wheeler writes, “By overstepping the proper role of the FBI here, Comey surely gave Lynch cover — now she can back his decision without looking like Bill Clinton convinced her to do so on the tarmac.”

Emmons largely agrees:

Given the extraordinary circumstances, Vladeck called it “both unusual and completely unsurprising that Comey went out of his way to make this statement.”

He added: “It’s certainly preemptive on Comey’s part.”

Attorney General Loretta Lynch was widely criticized for meeting with former President Bill Clinton last week while his wife was still under investigation

You read that right: “unusual and completely unsurprising.” For Emmons and Vladeck it appears to be a case of insiders going out of their way, far out of their way in fact, to cover for insiders. Given how unprecedented Comey’s speech was, I think we have to accept this hypothesis until others weigh in with more likely alternatives. This seems perfectly plausible to me. I can think of another motives for Comey’s actions, but they don’t exclude this one.

Should Clinton Be Prosecuted Despite Loretta Lynch’s Refusal to Do So?

So far, we’ve been able to answer the first question, should Comey have made the call not to prosecute? The answer is clearly no. But that only gets us started. As to the prosecution itself — should she be prosecuted and why? — we’re in more complicated territory, which I hope to make clear.

(Note, by the way, that in my heading just above, I’m transferring responsibility for the refusal to prosecute from Comey back to the Justice Department, where it belongs. I suggest in thinking about this that you do the same. Comey notwithstanding, it’s Lynch who has the authority, and Lynch who is refusing to prosecute.)

About prosecution, there are many laws that Clinton appears to have broken. In fact, there may develop a minor cottage industry that lists them. Comey himself identified some transgressions during his post-announcement speech (my emphasis below):

[S]even 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.

Note that this confirms, by the way, the fact that Special Access Program (SAP) information — one of the highest, most sensitive levels of secret the government possesses — was indeed housed on the server. Brian Pagliano, in doing any number of maintenance chores at the Clinton IT home-headquarters, could have read it, as could anyone helping him. Risking SAP information will be a tripwire for many in the intelligence community, who are likely to regard its mishandling as unforgivable. This is one of those areas where we’ll know more over time as specialists weigh in. (The political response of the intel community, if any, could also be interesting, in a “drama of retaliation” way. This may not occur, but it’s one of the possibilities.)

Next Comey adds:

In addition to this highly sensitive information, we also found information that was properly classified as Secret by the U.S. Intelligence Community at the time it was discussed on e-mail (that is, excluding the later “up-classified” e-mails). None of these e-mails should have been on any kind of unclassified system, but their presence is especially concerning because all of these e-mails were housed on unclassified personal servers not even supported by full-time security staff, like those found at Departments and Agencies of the U.S. Government—or even with a commercial service like Gmail.

In other words, despite Ms. Clinton’s allegations that nothing she sent or received was “marked classified at the time” — her statements were incorrect. (Note that the extent of this violation is in doubt, however; i.e., the exact number of these “properly classified” emails and their contents was not revealed. Below, as you’ll read, Comey admits that the number of these emails is “very small.” Wikileaks disagrees.)


Separately, it is important to say something about the marking of classified information. Only a very small number of the e-mails containing classified information bore markings indicating the presence of classified information. But even if information is not marked “classified” in an e-mail, participants who know or should know that the subject matter is classified are still obligated to protect it.

The last is important. Some material is “born classified,” a phrase you’ve likely encountered if you’ve been following this story. If an admiral in World War II, for example, doodles a possible plan of attack against an enemy fleet, that doodle contains classified information, whether marked as such or not. And more, the duty to guard this information goes beyond not divulging it. It must be carefully protected in a non-negligent way.

Hillary Clinton and the Espionage Act

So should Clinton have been prosecuted? The duty to protect important government information is codified, among other places, in the Espionage Act, Title 18 of the criminal code, Sections 792 and following. I earlier wrote about Clinton’s vulnerability to this act, specifically Title 18, Section 793, here: “Three Data Points Regarding Clinton’s Email Server and the Law“. There I made two points: first, that the information covered by the act doesn’t require a formal “classified” designation to be relevant; and second, that “intent” (meaning intent to disclose) is not necessary to trigger the law’s penalties. “Gross negligence” in handling the information is sufficient to trigger prosecution. Part of this section reads:

(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—

Shall be fined under this title or imprisoned not more than ten years, or both.

To get the gist of this language as it applies to Clinton, just read the part bolded above. Cut down, it says:

Whoever, being entrusted with or having lawful possession or control of any document … relating to the national defense … or having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen … shall be fined under this title or imprisoned not more than ten years, or both.

If your consideration is whether Clinton violated the letter of the law, that’s pretty straight-forward. Storing the information listed by Comey in his non-indictment indictment of Clinton on her unsecured server (and sent, for a time, by unencrypted transmission) puts Clinton at clear risk of prosecution for violating the Espionage Act. And again, the bar isn’t “intent” to risk or violate national security information. The bar is “gross negligence” in its handling, a phrase that’s almost a dictionary synonym for what Comey meant when he accused Clinton and her colleagues of being “extremely careless in their handling of very sensitive, highly
classified information.”

Thus she’s very likely vulnerable under the letter of the law. Yet unlike others she will not be tried (a word that means “tested”), much less punished, for violating it. Her lack of prosecution, when others have been vigorously pursued in court for similar acts or less, explains much of what exercises her critics. To understand their frustration and anger, let’s look at those who have been prosecuted under the Act for negligence or worse. Then let’s look at the critical element that separates their situations from Clinton’s. (It’s not just her elevated status.)

The Espionage Act Under Obama

It turns out that the Espionage Act has become a popular tool of punishment under the Obama administration, which has broadened its application from use against actual espionage to use against unfriendly leakers and whistle-blowers:

Under the Obama administration, seven Espionage Act prosecutions have been related not to traditional espionage but to either withholding information or communicating with members of the media. Out of a total eleven prosecutions under the Espionage Act against government officials accused of providing classified information to the media, seven have occurred since Obama took office.[89] “Leaks related to national security can put people at risk,” the President said at a news conference in 2013. “They can put men and women in uniform that I’ve sent into the battlefield at risk. I don’t think the American people would expect me, as commander in chief, not to be concerned about information that might compromise their missions or might get them killed.”[90]

As Glenn Greenwald (among many others) has recently noted:

Secrecy is a virtual religion in Washington. Those who violate its dogma have been punished in the harshest and most excessive manner – at least when they possess little political power or influence. As has been widely noted, the Obama administration has prosecuted more leakers under the 1917 Espionage Act than all prior administrations combined. Secrecy in DC is so revered that even the most banal documents are reflexively marked classified, making their disclosure or mishandling a felony. As former CIA and NSA Director Michael Hayden said in 2010, “Everything’s secret. I mean, I got an email saying ‘Merry Christmas.’ It carried a top secret NSA classification marking.”

People who leak to media outlets for the selfless purpose of informing the public – Daniel Ellsberg, Tom Drake, Chelsea Manning, Edward Snowden – face decades in prison. Those who leak for more ignoble and self-serving ends – such as enabling hagiography (Leon Panetta, David Petreaus) or ingratiating oneself to one’s mistress (Petraeus) – face career destruction, though they are usually spared if they are sufficiently Important-in-DC. For low-level, powerless Nobodies-in-DC, even the mere mishandling of classified informationwithout any intent to leak but merely to, say, work from home – has resulted in criminal prosecution, career destruction and the permanent loss of security clearance.

Even when no leakage or other damage was contemplated or occurred, the Espionage Act was applied against violators. Here’s what happened to Naval Reserve Engineer Brian Nishimura (link via Greenwald above):

A Naval reservist was sentenced for mishandling classified military materials.

A federal attorney announced Wednesday that Bryan Nishimura of Folsom, California, pleaded guilty to the unauthorized removal and retention of classified materials.

Nishimura, deployed in Afghanistan in 2007 and 2008 as a regional engineer, admitted to downloading classified briefings and digital records onto his personal electronic devices. He carried the materials off base and brought them back to the U.S. when his deployment ended.

An FBI search of Nishimura’s home turned up classified materials, but did not reveal evidence he intended to distribute them.

How was his case handled? He was obviously prosecuted, as the lead paragraph tells us. Then:

He was sentenced to two years of probation and a $7,500 fine, and was ordered to surrender his security clearance. He is barred from seeking a future security clearance.

This is a Navy engineer who took home downloaded briefings and records. We’re not told under what act he was prosecuted, but we don’t need to be told, just that doing what he did was a crime. The Espionage Act is perfectly suited to that crime, if the prosecutors wished to use it.

Here’s a bit from the FBI’s description of Nishimura’s case:

According to court documents, Nishimura was a Naval reservist deployed in Afghanistan in 2007 and 2008. In his role as a Regional Engineer for the U.S. military in Afghanistan, Nishimura had access to classified briefings and digital records that could only be retained and viewed on authorized government computers. Nishimura, however, caused the materials to be downloaded and stored on his personal, unclassified electronic devices and storage media. … In the United States, Nishimura continued to maintain the information on unclassified systems in unauthorized locations, and copied the materials onto at least one additional unauthorized and unclassified system

Sounds like what Clinton did to a T. Should she be prosecuted? Loretta Lynch, speaking through James Comey, doesn’t think so. To understand why not, let’s look at three more notorious and more vigorously prosecuted cases: Jeffrey Sterling, Thomas Drake and Chelsea Manning. Those cases not only reveal why Clinton, in the eyes of many, should be prosecuted; they reveal why she wasn’t.

Jeffrey Sterling, Thomas Drake and Chelsea Manning

This gets to the heart of the problem related to when and why to prosecute. There’s first a question of what should happen and what does happen. Then there’s a question of intent, as in, what intent if any is the target of the law, and what intent is the target of prosecutors who apply the law. These are not the same.

Greenwald doesn’t think Clinton should be prosecuted, since in isolation her crime, as he sees it, doesn’t merit it. What Clinton did was attempt to shield all of her communications to the extent she could, an act that in his mind doesn’t deserve jail time, despite the letter of the law. I would add that we’re talking about applying the Espionage Act after all, and Clinton in no way committed or intended to commit espionage.

But that kind of sensible thinking isn’t what does happen. What does happen is that under Obama, certain people are prosecuted and sentenced very harshly. Greenwald again (bolded emphasis mine):

But this case does not exist in isolation. It exists in a political climate where secrecy is regarded as the highest end, where people have their lives destroyed for the most trivial – or, worse, the most well-intentioned – violations of secrecy laws, even in the absence of any evidence of harm or malignant intent. And these are injustices that Hillary Clinton and most of her stalwart Democratic followers have never once opposed – but rather enthusiastically cheered. In 2011, Army Private Chelsea Manning was charged with multiple felonies and faced decades in prison for leaking documents that she firmly believed the public had the right to see; unlike the documents Clinton recklessly mishandled, none of those was Top Secret. Nonetheless, this is what then-Secretary Clinton said in justifying her prosecution…

Clinton’s justification for Manning’s prosecution is this (emphasis Greenwald’s):

“I think that in an age where so much information is flying through cyberspace, we all have to be aware of the fact that some information which is sensitive, which does affect the security of individuals and relationships, deserves to be protected and we will continue to take necessary steps to do so.

Seems damning in retrospect, especially the emphasized portion. For Clinton, “necessary steps” to protect “sensitive” information that’s “flying through cyberspace” means the following:

In 2010, Chelsea (formerly Bradley) Manning, the United States Army Private First Class accused of the largest leak of state secrets in U.S. history, was charged under Article 134 of the Uniform Code of Military Justice, which incorporates parts of the Espionage Act 18 U.S.C. § 793(e). At the time, critics worried that the broad language of the Act could make news organizations, and anyone who reported, printed or disseminated information from WikiLeaks, subject to prosecution, although former prosecutors pushed back, citing Supreme Court precedent expanding First Amendment protections.[103] On July 30, 2013, following a judge-only trial by court-martial lasting eight weeks, Army judge Colonel Denise Lind convicted Manning on six counts of violating the Espionage Act, among other infractions.[98]

And the punishment was this:

Manning was sentenced in August 2013 to 35 years’ imprisonment, with the possibility of parole in the eighth year, and to be dishonorably discharged from the Army.[2]

That harsh punishment doesn’t count the torture she endured while in pre-trial detention. The fate that befell Chelsea Manning was (and is) draconian. Again, in retrospect Clinton’s words at the time are damning.

Let’s look at two more cases, starting with Jeffrey Sterling. As you read, see if you can see the thread that ties these three cases together:

Jeffrey Alexander Sterling, a former CIA agent was indicted under the [Espionage] Act in January 2011 for alleged unauthorized disclosure of national defense information to James Risen, a New York Times reporter, in 2003 regarding his book State of War. The indictment described his motive as revenge for the CIA’s refusal to allow him to publish his memoirs and its refusal to settle his racial discrimination lawsuit against the Agency. Others have described him as telling Risen about a backfired CIA plot against Iran in the 1990s.[91]

But the evidence of wrong-doing was almost non-existent, flimsily circumstantial, and the conviction relied heavily on the jury’s reaction to the government’s presentation of motive.

The government’s case consisted mostly of records of emails and phone calls between Sterling and Risen that began in 2001 and continued into 2005. The emails were very short, just a line or so, and did not reference any CIA programs. The phone calls were mostly short too, some just a few seconds, and the government did not introduce recordings or transcripts of any of them.

Sterling was represented by two lawyers, Edward MacMahon Jr. and Barry Pollack. In his opening statement, MacMahon pointed to the lack of hard evidence against his client.

“Mr. Trump is a fine lawyer,” MacMahon said. “If he had an email with details of these programs or a phone call, you would have heard it, and you’re not going to hear it in this case .… Mr. Trump told you that [Sterling] spoke to Risen. Did you hear where, when, or anything about what happened? No. That’s because there isn’t any such evidence of it whatsoever .… You don’t see a written communication to Mr. Risen from Mr. Sterling about the program at all, no evidence they even met in person.”

Nevertheless, despite this lack of real evidence:

[T]he jury convicted Sterling, based on what the judge, Leonie Brinkema, described at the sentencing as “very powerful circumstantial evidence.” She added, “In a perfect world, you’d only have direct evidence, but many times that’s not the case in a criminal case.” …

A few minutes before three in the afternoon, Judge Brinkema said that Sterling would go to prison for three and a half years. This was far below the sentencing guidelines — and was seen as a rebuke of the prosecution’s portrayal of Sterling as a traitor who had to be locked away for a long time. But that wasn’t much comfort for Sterling or his wife, because he would nonetheless be locked away. After the hearing ended, Sterling walked to the front row of seats to console his sobbing wife. You could hear her wails in the courtroom.

His lawyers requested that he be allowed to serve his sentence in his home state of Missouri, so that his wife and other family members could easily visit him. Earlier this week, Sterling reported to the prison that was selected for him. It is in Colorado.

We still don’t know for sure that Sterling was the person who leaked information to reporter James Risen. Nothing showing that they worked together was presented in court. Nothing. Yet the prosecutor did a good job of painting Sterling as “a traitor” motivated by “anger, bitterness, selfishness,” adding, “The defendant struck back at the CIA because he thought he had been treated unfairly. He had sued the agency for discrimination and demanded that they pay him $200,000 to settle his claim. When the agency refused, he struck back with the only weapon he had: secrets, the agency’s secrets.”

On that basis and almost no evidence, the jury convicted.

Finally, in the case of Thomas Drake, mentioned above by both Wheeler and Greenwald, this happened:

In April 2010, Thomas Andrews Drake, an official with the National Security Agency (NSA), was indicted under 18 U.S.C. § 793(e) for alleged willful retention of national defense information. The case arose from investigations into his communications with Siobhan Gorman of the Baltimore Sun and Diane Roark of the House Intelligence Committee as part of his attempt to blow the whistle on several issues including the NSA’s Trailblazer project.[92][93][94][95][96] Considering the prosecution of Drake, investigative journalist Jane Mayer wrote that “Because reporters often retain unauthorized defense documents, Drake’s conviction would establish a legal precedent making it possible to prosecute journalists as spies.”[97]

What sets Drake, Sterling and Manning apart from Clinton in the way their violations of the Espionage Act are treated? It’s not just her elite status.

Why Is Clinton’s Case Different?

Clinton may well have been let off because the Justice Department thought prosecution was just the wrong thing to do. Given all the arcane rules of classification, and the fact that Clinton, put plainly, is not a spy, Comey and Lynch may well have decided that prosecution was pointless. Espionage, after all, was never her intent, and getting Hillary Clinton convicted on espionage charges may have looked to them like a very heavy lift. Yet espionage was never the intent of Sterling, Drake or Manning, yet they had the proverbial book thrown at them, and more. (Read the rest of the article on Sterling to see how his prosecution nearly destroyed his life, literally.)

The government’s behavior in these four cases isn’t clarified when comparing motives, at least not initially. It could be argued that the motives of Sterling, Drake and Manning were entirely beneficial, since whistle-blowers intend to perform a societal good, whereas Clinton’s motives were more self-centered, less morally defensible, and possibly illegal — at the very least, she was attempting to move all of her communication beyond the reach of FOIA records requests. (We’ll have to wait to see if she may have had other motives, such as shielding the Clinton Foundation from embarrassing scrutiny, or worse. I keep seeing mention of a separate investigation into that.)

Which brings us to the the matter of intent — not the intent contemplated by the law (intent to steal or to otherwise mishandle government secrets), but the intent contemplated by the prosecutors in applying the law. Look again at the Sterling conviction and what the prosecution relied on to get it. The man was painted by his prosecutors as, in effect, evil — a man whose goal was to harm the government, a betrayer, a traitor, motivated by anger, bitterness, selfishness, a man taking revenge. Though most stark in Sterling’s prosecution (and in Manning’s torture), you see this thread in all three whistle-blower cases.

What separates these cases from Clinton’s is the desire of the government to punish “evil deeds,” attempts to harm the country as the prosecutors defined harm, then secondarily to use the Espionage Act as a tool of that punishment, wielded in such a heavy way as to frighten others. Note that this initial filter — looking for who has done the kind of harm deserving of punishment, as opposed to looking for who violated the law — precedes the prosecution itself. What doesn’t precede the prosecution — certainly not in Clinton’s case — is an even-handed application of the law.

Yes, this is selective prosecution, but it’s much more than elites protecting elites, though it’s that as well. It’s also and primarily using the prosecutorial weight of the established state to mercilessly crush the perceived enemies of that state, while protecting its friends from that weight should they also stray under the law’s dark umbrella.

In other words, the key to determining who will be prosecuted is indeed intent, but not intent to violate the law. What’s being prosecuted is intent to violate the state as the state perceives it.

So we return where we started, to Marcy Wheeler, who calls the real crime of Sterling and Drake “disloyalty” and not a violation of the Espionage Act itself. Wheeler (my emphasis):

I can only imagine Comey came to his improper public prosecutorial opinion via one of two mental tricks. Either he — again, not the prosecutor — decided the only crime at issue was mishandling classified information (elsewhere in his statement he describes having no evidence that thousands of work emails were withheld from DOJ with ill intent, which dismisses another possible crime), and from there he decided either that it’d be a lot harder to prosecute Hillary Clinton (or David Petraeus) than it would be someone DOJ spent years maligning like Sterling or Drake. Or maybe he decided that there are no indications that Hillary is disloyal to the US.

Understand, though: with Sterling and Drake, DOJ decided they were disloyal to the US, and then used their alleged mishandling of classified information as proof that they were disloyal to the US (Drake ultimately plead to Exceeding Authorized Use of a Computer).

Ultimately, it involves arbitrary decisions about who is disloyal to the US, and from that a determination that the crime of mishandling classified information occurred.

This entirely ignores the political dimension, which I’ll take up at another time. But it perfectly characterizes, as I see it, the legal one.

Too Big to Jail, Too Innocent to Flail, or Both

Should Clinton have been prosecuted at all? It depends on whether you wish to apply the law (many do), to apply what others consider common sense, or to rebalance the scale of unequal prosecution. And if the latter, rebalance in which direction? Should Clinton go to jail, or should Manning, among others, go free? I would personally be fine if Clinton never saw a courtroom and prisoners like Manning were freed. For the overall good of the nation, I would take that trade. Others, I’m sure, would choose differently.

Returning to why Clinton wasn’t prosecuted — was it just that Clinton is too important, too protected, to prosecute? “Too big to jail” in other words? Too high to be brought down by something as low as the law? After all, starting with Nixon, the circle of those who can never be punished for their crimes has grown constantly more inclusive. (I almost wrote “for their non-violent crimes,” but then I remembered the torturing George W. Bush.) That’s certainly a possible explanation, even a likely one, given our recent failure to prosecute even a straight-up thief like former Goldman Sachs chief, ex-governor and Democratic Party fundraiser Jon Corzine.

But we live in a punishing, prosecutorial state as well, one that treats its enemies as harshly as it treats its friends gently, especially its inner circle friends. It’s this second aspect, not just who is too big to jail, but who is too high-minded and innocent to torture and flail — too “loyal” to be treated, in other words, like Sterling and Manning — that must be considered before we can understand the unequal application of these laws. Clinton, for all her faults in James Comey’s eyes, was no Chelsea Manning.

As Wheeler says in her closing, this is “another way of saying our classification system is largely a way to arbitrarily label people you dislike disloyal.” On reflection, it’s hard to disagree.

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  1. EndOfTheWorld

    He keeps saying over and over again the meme that “Clinton in no way committed or intended to commit espionage.” How the hell does he know that? He’s reading the Hildabeast’s mind? Maybe she was paid off in cash or gold bullion by some foreign government for letting all this info be hackable. There is no proof one way or another.

    1. ColdWarVet

      In other words, the key to determining who will be prosecuted is indeed intent, but not intent to violate the law. What’s being prosecuted is intent to violate the state as the state [itself] perceives it.

      That’s the money line right there. Just as back in the 50’s, all of this is based on simplistic moralistic arguments concerning intent to harm the state. HRC virtually embodies the modern state, and thus, her intent cannot and will not ever be questioned. Game over.

      1. fresno dan

        July 13, 2016 at 7:36 am

        I agree absolutely. And I would add that the “state” now a days is far more of an ideological monolith than 60 or even 40 years ago. Any “serious” person in the upper echelons of the US governing class believes in the all security state, and whatever is necessary to maintain it.
        If Daniel Ellsberg had done today what he did in the ’70’s, he would be in solitary confinement in a maximum security prison, and there would be NONE in the high reaches of the US governing class opposed to this outcome.
        We live in a more EFFECTIVELY one party state than the Soviets or Red Chinese ever mustered…

        1. OpenThePodBayDoorsHAL

          “L’etat, c’est moi.”
          We recall what happened after that statement.

          1. Vatch

            Unfortunately, there was quite a lag. The phrase is attributed to Louis XIV, who died in 1715. Nearly 3/4 of a century elapsed before the events of 1789.

  2. Turd in the Punchbowl

    Two submerged legal protections show why the government is trying so hard to fend off human rights law. The authorities here are freedom of information in accordance with Article 19, and human rights defenders, who have protections under state and federal common law as customary international law. The US is legally committed to bring domestic law into compliance with human rights law, which is the supreme law of the land.

    The government tries to stuff this hero/traitor dichotomy up our butts but Manning, Sterling, and Drake are human rights defenders. Manning defended our right to information freedom. Sterling defended our human right to peace by denouncing illegal war propaganda. Drake defended our human right to privacy from illegal NSA surveillance.

    Chelsea Manning’s trial was a classic case for Francis Boyle’s civil resistance framework. The issue was not only information freedom but denunciation of war crimes. Under federal law and the Army Field Manual, disobedience was Manning’s legal duty. But we heard this drumbeat of he wouldn’t dare, he wouldn’t dare… The implication was, he’d be punished more harshly for explicitly complying with the federal law of war crimes.

    The government goes through increasingly ridiculous bad-faith contortions to escape this body of law. International forums are making a laughingstock of this government, shredding its pretensions to legitimacy. The last step is for human rights defenders to go over the head of this government to the world and argue the necessity of exposing this criminal state.

    Human rights defenders like Sakharov, Sharansky, and Slepak helped reform the USSR out of existence. Manning, Sterling, Drake, and the ones who come after them will do the same for all of us Americans trapped in the USA.

    1. steelhead23

      I like the way you think. Those who defend human rights by pointing fingers at the state for its transgressions are considered traitors, while those who embody the state, yet violate its laws are exonerated. Isn’t that pretty close to placing the state above the law – a police state?

  3. Romancing the Loan

    Yeah depending on to whom she was trading our government secrets for, it doesn’t really matter that it was (for example) through intermediaries like Blumenthal in exchange for donations to the Clinton Foundation and not out of loyalty to a foreign country. There is still the potential that she did things that constituted espionage.

  4. jgordon

    Hillary’s email debacle and subsequent lack of prosecution is an important milestone on the road to widespread recognition that America has become a third world banana republic. This has undermined belief in the system, credibility of government, and ultimately the global empire.

    It’s like the elites took out a payday loan; they get to play their little games and protect their corrupt friends for now–and in the future their creditors, the American people, will extract their pound of flesh (via the guillotine). Somewhere in that process the empire will collapse. Now if only we can avoid a nuclear Armageddon (ie by supporting Trump from here on out) I’d say that is a win-win for everyone in the world despite how bad it looks in the short term.

    1. Jim Haygood

      Fresh shark jumping by the Clintons:

      In the filing Tuesday [in a Judicial Watch FOIA case], longtime Clinton attorney David Kendall even offered the politically awkward contention that a general effort by Clinton to thwart FOIA would not be enough to give the Judicial Watch legal authority to proceed with its case.

      Kendall argued that a 1980 Supreme Court case that discussed the possibility of recovering records sought under FOIA but no longer in agency control “requires a close temporal connection between an official’s removal of records and a specific FOIA request.”

      “That standard cannot be satisfied here. Judicial Watch’s FOIA request was submitted nearly four months after Secretary Clinton left the State Department, and there is no evidence that Secretary Clinton or anyone else at the Department knew that Judicial Watch would submit the request, let alone intended to circumvent it,” Kendall wrote, along with attorneys Katherine Turner and Amy Zaharia.

      Four months after Clinton left the State Dept, she was still keeping her emails at home, in violation of a requirement to turn them over for official archiving. Had it not been for Guccifer, she would never have turned them over.

      It would be not be surprising at this point for Hillary to Arkancide “Bill,” and then plead for the court’s mercy because she is a widow.

      1. Pat

        I could be wrong, but I’m betting this just pisses off Sullivan even more. And Sullivan is pretty pissed off. And that requirement will probably be the basis on which he shreds that stand. I’m pretty sure he is going to point out that the material requested SHOULD have been at State when Clinton left AND that it not only was Clinton’s responsibility to have made sure it was there, she should have done so before swearing she had.

        Mind you, I cannot imagine the pressure that is now being put on Sullivan to end this. But it hasn’t happened so far.

        1. EndOfTheWorld

          If I were Emmet Sullivan, the pressure being put on me would be the thing that would piss me off more than anything else. The man has a lifetime job with almost no possibility of being fired, correct? If they actually murder one of his grandchildren, that would be a step too far, even for the Clintoons, so I think he can go ahead and do his job.

        2. Yves Smith Post author

          I would bet the game Clinton’s attorneys are now playing is to piss Sullivan off so much he makes an error out of pique that they can use to justify an appeal. Which is another reason for him to be measured.

        3. Glen

          The Repubs running Congress will be under tremendous pressure to impeach, and they have a good case.

  5. pretzelattack

    re retaliation, it would be nice, but the cia never retaliated against bush or cheney for outing plame, afaik. of course maybe it would be some secret retaliation.

      1. pretzelattack

        yeah, but i’ve not read that was engineered by the cia, in any case they knew it was cheney/bush.

  6. Tallichet

    Speaking as a former AUSA with years of experience making prosecution decisions in complex fraud cases, some of those decisions in agreement with recommendations made by the investigating agency (FBI and others), some in the teeth of opposition from the investigating agency, the only unusual aspect of the handling of the email affair I observed was DOJ’s decision to make public, through Comey’s speech, the reasoning behind the declination. Reasoning underlying prosecution decisions is, as a rule, never made public. Making the reasoning public was likely a nod to the highly politicized nature of the investigation and the need for absolute transparency.

    As for the assertion that the decision was made by the wrong person or department, FBI/Comey not Lynch the prosecutor, Lynch made it clear beyond dispute that she would defer to the fact finder’s recommendation when it was made. That decision was itself a prosecution decision made by Lynch, was within her authority and again, given the highly politicized nature of the investigation, was an obviously sensible decision, given her position as a cabinet member in a Democratic administration.

    1. Yves Smith Post author

      As a state prosecutor said via e-mail:

      The remark that this was “an obviously sensible decision, given her position as a cabinet member in a Democratic administration,” is also the kind of crap that I’ve gotten in the past from AUSA’s, who are one of the most intellectually (and ethically) captive groups I’ve ever dealt with. Everything that they do is for “show” value within the DOJ. If I bring up the public’s interest in justice, they look at me like I’m some kind of nut. The commenter is correct that Lynch’s actions make perfect sense within the rules of DOJ Kabuki theater. They very much like decisions to be made by somebody else.

      The commenter is looking at Comey’s unusual public statement through the lens of DOJ group-think makes it seem driven by “the need for absolute transparency.” This is how they pass the buck in that organization. Comey’s statement makes perfect sense inside the DOJ — his assertion that “no reasonable prosecutor” would file charges only makes sense to a careerist to whom pleasing their superiors is the only “sensible” and “reasonable” behavior, and to whom actual justice is a mere abstraction.

      Ironically, it is the precarious nature of legal employment as recently discussed on NC that has caused this sort of organizational behavior to be the norm in the profession any more, and it’s prevalence is why I’m getting out.

      1. fresno dan

        Yves Smith
        July 13, 2016 at 12:08 pm
        THANK YOU, THANK YOU, THANK YOU !!!! for your rebuttal of that evil BULLSH*T

      2. YankeeFrank

        This brings to mind the mantra “there’s justice… and then there’s the law”. Though when I’ve heard that said it was not as a defense of how little the latter mirrors the former but a criticism. Apparently at the DOJ, as with Antonin Scalia*, the law is not about right and wrong, innocence or guilt. Its about CYA and protecting the prerogatives of the state.

      3. Jim Haygood

        Read Bill Moushey’s 10-part “Win at All Costs” series on the federal conviction mill, and you would not even want an “AUSA” living in your neighborhood, for fear of being swept up in their mindless criminal dragnet.

        Federal prosecutors are like the poseur who knocks out an opponent with no arms, then claims to be Heavyweight Champion of the World.

        They don’t know what a fair adversary proceeding is anymore, since federal sentencing guidelines (1984) and other changes tilted the whole table in their favor.

        When 95% of federal criminal cases are plea-bargained under extreme duress for the defendant, prosecutors don’t need any skill whatsoever to put fresh pelts on the wall.

          1. run75441

            True which is why we are to concerned about fixing the wrong end of the process. Make the process equal in the beginning and not wait till sentencing.

      4. run75441


        I am going to disagree this time.

        What Tallichet is saying is indeed true. He is not making it up. The burden is upon the government to prove intent or “mens rea” evil mind. No reasonable prosecutor would take up another Ken Starr crusade for years to come to prove something which can not be proven. If you are young and maybe want a crusade (Starr did) then maybe you take it up to make a name for yourself.

        I have enough court time to know when a battle can be won and not won. Spent enough money doing it.

        1. Sluggeaux

          As a prosecutor of 32 years successful legal practice, let me just say: “You’re wrong.”

          The only mens rea required to prove a violation of 18 U.S.C. 1924 is General Criminal Intent, not Specific Intent. There is no legal requirement that a person accused of Unauthorized Removal and Retention of Classified Documents intend to break the law or damage the interests of the United States. The only requirement is that the accused person knowingly remove the materials and intentionally retain them at an unauthorized location.

          This sort of violation is the easiest thing in the world to prove to a judge or jury, and I’ve personally taken scores of unanimous jury verdicts involving General Intent crimes. Petraeus was easily convicted of this violation, and many men and women have been cashiered and/or imprisoned for it, especially by the Obama Justice Department. No Ken Starr crusade required — the evidence is beyond dispute.

          However, the difference is that I’ve been at my work for 32 years, and I’ve never had the slightest intention of walking through the revolving door of representing the very people who it was my duty to prosecute.

      5. Tallichet

        Your ability to generalize with such breadth and detail about a very large, diverse group of individuals is impressive. My experience as a state prosecutor, Federal prosecutor, defense attorney and thoughtful human being has taught me that such generalizations cannot be relied upon. I have interacted with many police and investigators from a multitude of agencies ranging from small town Texas pds to FBI and have found that some of them were tall, others short, some blue eyed, others brown eyed some smart others not so smart, some honest, others not. I have found the same diversity in other groups I have come to know through experience … judges, prosecutors, defense attorneys, women, men, blonds, brunettes … the list is really endless. Are you able to similarly generalize with such breadth and detail about groups within our society other than AUSAs?

        1. art guerrilla

          i dont know shit about ‘the law’, and NO LONGER CARE because it is a totaaly corrupted institution which serves the interests of the 1%…
          my pers,onal morals are a superset of ‘the law’, only mine are evenhanded, not corrupt…
          oh, you sound like quite the douche, hoping we have an opportunity to meet at a necktie party when the hard rain comes… lawyers will be escorted to the front of the line…

  7. m

    My brother is in the service with a security clearance and they are all furious. They said what she did is illegal and if anyone else did it they would be prosecuted .
    The Clintons are grifters and it would not surprise me if most of those deleted emails involved starting wars in other countries, TPP and scamming for the foundation. The claim she was too stupid to know what she was doing was wrong is ludicrous. If she wins the presidency we need a congress full of tea partiers so she cannot enact anything.

    1. jgordon

      I’d definitely be interested in reading more about how the email scandal is sowing distrust and discord in the national security state. Please share more about how people on the inside are feeling; it’s always reassuring to get confirmation that not all of these people are vile and mendacious crooks.

      1. EndOfTheWorld

        The retired LTG who was vetted by Trump for veep also said if it was him, he would be doing jail time for what Hill did. I’m sure that’s why Trump would love to have this guy as an attack dog on the campaign trail.

      2. savebyirony

        I have a cousin who is a commander in the Navy with Southern Command who nearly never talks publicly about “politics” or much that is in the media. He speaks with his near family and very close friends, but widely or on any sort of social media, no way. He is irate about Clinton not being prosecuted. He sees this as an issue of justice and national security and is very public about his views. I asked him why he was willing to be so public with his views in this instance and he explained it is based on the seriousness of the crimes and the undermining of all he believes he is serving for.

    2. Papa Bear

      I used to be a USAFA nuclear launch officer. One of my fellow officers (unthinkingly) brought a crew bag into the classified vault where we were processing a rev change (a periodic change to procedures, methods and/or targets). One of the sheets from the old rev slipped into his crew bag. He took the crew bag into the (occupied) squadron office where it sat for several hours. The destruction inventory came up short. The sheet was found in the officer’s crew bag.

      Consequences were brutal. He was immediately relieved of duty. I never saw him again. The entire squadron was given a mandatory security refresher and told that the consequences for being *involved* in such negligence would, at the least, result in a dishonorable discharge and quite likely would involve an extended stay in Leavenworth, KS. Involvement could include just being in the line of sight of unauthorized containers such as a crew bag.

    3. Ping

      It’s glaring that HRC sold the office and that is why a private server and hiding emails was essential.

      Puleeze can we stop being insulted that she didn’t know, wasn’t technically sophistocated ……!
      She went to GREAT Lenghts at considerable inconvenience to set up and operate seperate system…..

      Think of the opportunities to shape policy and approve/disapprove State Department transactions around Clinton Foundation contributors!!

      Allowing this obvious glaring conflict of interest to exist in the first place was incredible and an example of how corrupt and far down things have fallen.

      Where are the Clinton Foundation emails……??? Intent is a no brainer…

  8. harry

    The US and Russia continue to converge. I was once told that Russian law is such that it is very difficult for an official to avoid accidentally breaking the law. The issue was not the law but enforcement. Many I’d these silly laws were not generally enforced. However it gave the authorities the option to prosecute whenever they chose.

    1. EndOfTheWorld

      harry, so you’re saying the laws the Hildabeast broke were “silly” laws, only for the “little people”, right?

    2. Epistrophy

      It’s said about Russia’s Laws that you cannot comply with one without also breaking another.

      1. EndOfTheWorld

        Russia’s laws are completely irrelevant to the HRC e mail situation. “harry” is implying that the US laws are silly and if we prosecuted the Hildabeast for her admitted crimes we might turn into Russia.

    3. Robert

      I think this is a basic feature of a totalitarian or fascist state. Make a lot of laws and then enforce only the ones that serve your ends. Whether it’s the Espionage Act or a traffic violation, it’s then up to the state to decide who they want to punish. Now every time I hear the phrase “rule of law”, I think of this. I don’t know if we were ever “a nation of laws, not a nation of men”, but we can safely say now that we are officially not.

  9. George Laird

    Comey made the decision most everyone with skin in the game that’s not a Sander’s supporter wanted him to make. And in that regard there is one ultimate explanation that Trumps all others as it were. Though this can be parsed in two ways, to his credit Comey manages to cover both with his public statement. To wit, Either Comey, loyal Republican that he is, wants to see Trump elected president and figures that the best thing he can do in that respect is to issue a scathing non-indictment of Clinton, thereby wounding but not killing her candidacy – in full knowledge that polling has consistently shown Trump would likely fare much less well against Sanders, or perhaps another democrat who might replace Clinton; or, loyal republican that he is, Comey believes Trump would be even more of a disaster for the Republican party than he already is if he were actually elected president – thus Comey elicits sympathy for Clinton, casting himself as part of the vast right wing conspiracy against her by airing his belief in her culpability, yet he spares her political viability and himself the possibility of political retribution from her side down the line. Win-win for Comey. Brilliant! At one stroke he’s made the case to both Clinton and Trump that he would be the perfect nominee to fill Scalia’s slot on SCOTUS.

    1. local to oakland

      Nice analysis. My first thought when I read Comey’s statement was that he had delivered a huge passive aggressive fu to some person or persons who had told him what result they wanted. This was perfect if the goal was to make sure the issue didn’t go away politically for Clinton. Much more effective than delivering a pro indictment message that would be ignored quietly.

    2. sid_finster

      Come on! Team D will not nominate Bernie under any circumstances.

      If HRC were to die today, Team D would shove Biden into the nomination or trot out Kerry or even Al Gore if they must, but Bernie is a threat that must be dealt with.

  10. Epistrophy

    I would argue that the very fact that Comey issued a public opinion on prosecution (completely outside the FBI remit) should be clear evidence of bias and invalidate their investigation and his statements on the basis they were prejudiced. A clever counsel could, in fact, use this as a defence if HRC is indeed tried. Comey, like Lynch, should have been recused. There is bias written all over this entire debacle.

  11. apber

    The true smoking gun will be the Clinton Foundation, variously described by others as a fraud, a giant slush fund,or a private criminal hedge fund. Just the optics of the pay-for-play circumstances of arms deals, corporate takeovers, mineral concessions, etc. should be more than sufficient to empanel a Grand Jury. Less than $1billion of the $4billion raised for Haiti’s earthquake relief effort was ever spent. Where’s the rest? Remember the commercials? Poppy Bush and Bill sitting side by side pleading for money.

  12. Teejay

    My Captain does not answer, his lips are pale and still,
    My father does not feel my arm, he has no pulse or will,
    The ship is anchor’d safe and sound, its voyage closed and done
    From fearful trip the victor ship comes in with object won:
    Exult O shores, and ring O bells!
    But I with mournful tread,
    Walk the deck my Captain lies,
    Fallen cold and dead.

    Oh Captain! My Captain!

    One more sabre to the torso of democracy. How many more can we ThePeople endure and survive?

  13. a different chris

    >looking for who has done the kind of harm deserving of punishment, as opposed to looking for who violated the law — precedes the prosecution itself.

    This is a global takeaway from this article. I always hated the second “civil” prosecution of OJ Simpson almost as much as I hated OJ himself – the ability to keep bringing somebody “bad” to trial until something sticks is exactly what double-jeopardy is supposed to prevent.

    1. Harry Shearer

      Having covered the second OJ trial, I can say only this in its defense: the two trials asked juries to rule on two different questions. The first trial asked the jury whether the state had proved its case against Simpson beyond a reasonable doubt. The second asked the jury who was responsible for the killings of Brown and Goldman. Both juries, imho, answered correctly.

  14. Dou Gen

    This article doesn’t explain why a punishment such as the one given to Petraeus was not considered by Comey or the DOJ. Petraeus was an elite insider who was not a spy and did not threaten the state, yet he still received a minor punishment so as not to delegitimatize the legal system and in order to give at least a minimal impression of fairness. Since Comey said it was possible — and most experts say very possible — that foreign governments read Hillary’s emails, she may have caused significant damage to the US national interest over four years. Therefore even a loyal elite could expect to be at least fined for such gross negligence. Why wouldn’t a fine and a reprimand and/or temporary loss of security clearance be normal even for a loyal DC insider? This suggests that the power of the Clinton Machine and its real-world ability to deliver retribution was the deciding factor in the lack of any suggestion of indictment. Comey surely wants to keep his job.

    The article also fails to deal with the fact that Comey mistakenly claimed that only one person had ever been prosecuted under the 1917 Espionage Act. This is clearly not the case, and you list some of those prosecuted. There have also been several other convictions, including US vs. McGuinness in 1992 (see Andrew C. McCarthy, “Military Prosecutions Show That A Gross Negligence Prosecution Would Not Unfairly Single Out Mrs. Clinton” National Review (7/7/2016), CIA director John Deutch in 1997 (pardoned by Bill Clinton), James Hitselberger (who carried classified documents off his naval base in 1997 and simply kept them), and Jason Brezler, a Marine Major who sent classified information about a dangerous Afghan mayor in order to warn a colleague in 2014 (he is now appealing his conviction based on Comey’s criteria). Also please see Jared Beck, “Why Hillary Clinton’s Emails Matter: A Legal Analysis” (6/6/2016): Beck lists 4 convictions under 793(f) alone. Also see Beck’s “Comey’s Volley, Or The Indictment That Wasn’t” (7/11/2016). You also need to deal with the question of why Comey ignored the obvious fact that Hillary willfully and knowingly broke State Department rules in setting up the private server and therefore knew she was endangering security. The fact that Comey gave a false number of prosecutions under s. 793 and avoided mention of willful, knowing acts by Hillary suggests his decision to oppose indictment was a political decision, not a legal decision.

    The article also fails to deal with the theory that Comey, taking into account various evidence, such as his talks with DOJ attorneys and the fact that Lynch agreed to meet Bill Clinton, decided that that there was no possibility that the Democrat-staffed DOJ would indict Hillary. Therefore Comey decided to make the best of a difficult situation by giving a two-part speech that first laid out reasons why Hillary could be indicted and then explained that it was not “reasonable” to indict her. “Reasonable” is of course a legal term, but it also covers a variety of meanings, including political motives. Do you reject this theory, or were you just unaware of it?

    1. run75441

      Seriously? Go back and see what Petraeus did and admitted to and what Clinton did and did not admit to and then analyze what you said. You have not proven intent in Clinton’s case. You have a specious argument going on here.

      1. Yves Smith Post author

        Stop this. You are just plain wrong. You are not an attorney and you are out of your depth. Go read the link I provided in my into and the rebuttal to your comment above.

  15. TedWa

    I don’t know why everyone seems to be ignoring that she destroyed evidence, 30,000 e-mails, when she knew the investigation was zeroing in on her. Her claim that they were ALL about personal matters is totally suspect considering how much the Foundation received during that period and the global events that transpired.

    1. fresno dan

      One small point that drives me insane

      Say the 30,000 emails were private. Taking a very liberal assumption that she only spent 10 minutes ((read and respone – just 10 minutes – I really am bending over backwards)) on each, that means “private” email time took 5,000 hours. In 4 years, a government employee officially is suppose to put in 8, 348 hours. So more than half the time was spent on private emails???

      Now, for those who say that maybe some of these emails were done after hours….I say why weren’t they ALL done after hours? – On her own home private computer???
      WHAT was so damn urgent about those yoga pants???? (or does Goldman Sachs demand instant gratification???)
      I mean, the Secretary of State has time from her O SO BUSY schedule for all this private emailing….?????

      HMMMM…what president said he was SO, SO, SO busy he never would have time for a hummer in the oval office?????

  16. EndOfTheWorld

    Alex Jones (yes, I admit to being a fan, albeit less than totally devoted —and I can’t stand his heavy metal bumper music) has contracted to have airplanes towing “Hillary For Prison” banners over both the repug and dem conventions. I’m interested in seeing: (1) if these planes are even allowed in the air space by the relevant authorities, and (2) if they do fly, will there be any press coverage whatsoever. Jones already had his first contractor cancel, but his second aerial contractor apparently intends to go through with it.

      1. EndOfTheWorld

        Optimader, TFR applies to prez and veep—-the airplane guy has stated they won’t be able to fly on the last day of the dem convention, when Obama and/or Biden will be there. The other days should be OK, in his opinion.

        1. EndOfTheWorld

          OK, just today the FAA announce TFR for 10 nautical miles around both convention sites. Just the feds shutting down freedom of speech for your protection.

  17. Optimader

    Yes, well I hope that was all theraputic for GP, dont really need any more than the bold print.

    -HRC admits what she was doing;(parsing modivation is not relevant)
    -She knowingly has (is?) engaged in a series of illegal activities; (Everyone at the SofS dept down to secretaries were explicitly classroom trained how to appropriately handle anything that is gov info (including *.gov) and signed off on it. Those records exist
    -Her employees knowingly engaged with her in illegal activities (conspiracy, all premeditated);
    -HRC has serially lied about her activities, under oath or not, a pattern of knowingly trying to hide criminal behaviour;
    -Everyone involved who took an oath of office violated said oath;
    -The last one arguably applies to Comey as well. Comey concedes that his investigation confirmed the nuts and bolts of what HRC and her conspirators did yet he has attempted to intervene in the legal process in an unprecedented and illegal manner; (it doesnt matter what he thinks, descretion on prosecution is above his pay grade)
    -If Comey’s interview with HRC was infact not peformed under oath, you can probably take that deerpath into the woods on Comey as well; (is that normal procedure with a perp, no less when it is well established criminal activity has and probably still IS occurring – as a minimum she is still trying to coverup felonies allegations).

    This I confirmed in less than one beer floating in a pool.

    1. EndOfTheWorld

      Optimader, so have you bought your “Hillary for Prison” t-shirts yet? I haven’t, but I do have a “Hillary for Prison” bumper sticker placed, not on my car, but in an inconspicuous place on my property. I don’t want some rabid HillBot to slash my tires.

      1. optimader

        I tend to do my political missionary, (cranky lamenting) work first person, usually with a beer floatnig in a pool.

        When it comes to political bumper stickers, if at all, I take a tangential approach by reveling in the bottomless pit of venial corruption -witness my popular (and removable) God Bless Spiro Agnew vintage b. sticker in the rear window.

    2. fresno dan

      July 13, 2016 at 10:20 am

      Exceptional work for a mere one beer! My God, man! Drink a pitcher and reform the entire government!

  18. Steven Greenberg

    Another big difference is whether or not the higher ups have a social relation with the accused. If they have never even met the accused, they have no personal feelings about ruining the life of the accused and the lives of the relatives of the accused. If they have socialized with the accused and are in the same social class as the accused, they can believe the accused is such a nice person that the accused does not deserve severe punishment.

  19. Mikus Aurelius

    One of the amazing sub-texts to all of this is the secrecy that covers what should be public information. After all, Hillary did use a very public server to do her “business” as SoS. It should be understood that such information as she had on it (in spite of her obvious goal of keeping it secret from the Department, a really ludicrous attempt, given the spying ability of today’s governments and hackers) was public information to be seen by the citizens of this country, since she was, and will be as President, a public EMPLOYEE…

  20. posa

    This is a case of straight-forward, audacious corruption of the US judicial system.

    Comey claims that a “reasonable” prosecutor would not indict Clinton; and in the next breath insists that a “reasonable” prosecutor would savagely indict anyone else who committed the same acts as Clinton. And furthermore that the “intent” defense would never stand.

    What more needs to be said?

    The Clintons operate with full immunity. Always have, always will.

  21. Benedict@Large

    Let’s say Comey and Lynch get together and agree that Clinton should be indicted. That’s fine, but what, they ask, are the chances be of having a fair trial in a reasonable timeframe (i.e. before a Clinton inauguration made one meaningless)? What are the chances of it not turning into a highly politicized media circus? The answer of course is zero.

    The (perhaps not so) obvious solution to this would be to turn it over to the House, where the matter would be handled via impeachment. Instead of being halted by inauguration, and indictment would be triggered by one, and of course, impeachment by its very definition is meant to be a political (and media) event.

    Sure, it would be messy, but how would a criminal indictment be any less so. Hell, Clinton could even pardon herself with a criminal indictment, so impeachment isn’t merely an option, it is the only option that would even have a chance of functioning as it was supposed to.

    So that’s what (I believe) Comey and Lynch agreed upon. Send it to the House, and let the political process handle it.

    1. AnEducatedFool

      Lynch did not agree to turn it over to the House. We will find out what she receives if Clinton makes it to the White House. I expect her to either remain as AG or go into lobbying with a hefty pay raise.

      I also do not think that Clinton will win the White House. Republicans control important battle ground states and they will either help Trump steal the election if necessary or prevent Clinton from stealing the election if she is behind. Clinton only beat Sanders by rigging the electronic voting machines. I do not expect her to get away with that in states controlled by Republican governors.

      Jill Stein and Gary Johnson take more support from Clinton than Trump. Many Millennials or 35 and under will either go with Stein or Johnson. It may be enough to keep her out of the White House.

      Trump can win because he is a brilliant marketer (or at least maintaining and enhancing his own brand) and it appears that he is more under control. Clinton’s negatives will only increase as the House investigates Clinton for perjury followed by the debates where Trump will tear apart Clinton’s record whenever they attempt to attack Trump on Trump U, Molestation, or outsourcing. The latter is a cakewalk. The Clinton’s crafted the rules that Trump used. He was playing the game and they wrote the rules. How on Earth do they think that Trump will allow that line of attack to stick to him.

      I really go side tracked. Clinton passed on information to her husband and son in law. Her son in law received information about Greece as his hedge fund was entering the Greek market. She passed along information for private gain which is corruption but since this information was classified it was also espionage just not between states.

  22. john

    We judge no less. Uncle of Exeter,
    Enlarge the man committed yesterday,
    That rail’d against our person: we consider
    it was excess of wine that set him on;
    And on his more advice we pardon him.
    That’s mercy, but too much security:
    Let him be punish’d, sovereign, lest example
    Breed, by his sufferance, more of such a kind.
    O, let us yet be merciful.
    So may your highness, and yet punish too.
    You show great mercy, if you give him life,
    After the taste of much correction.
    And then there was Hillary:
    “I think that in an age where so much information is flying through cyberspace, we all have to be aware of the fact that some information which is sensitive, which does affect the security of individuals and relationships, deserves to be protected and we will continue to take necessary steps to do so.“ But Comey is no Henry and there is no Exeter to remove Hillary from the room

  23. Heliopause

    I will point out that regardless of the motives we impute to Comey his presentation on July 5 did real damage to HRC. She has lost ground in the polls taken since then and the GOP has resurrected this issue as a cudgel. Not sure if that makes people around here feel better or not.

  24. philnc

    Yeah. So a shoutout to the state prosecutor quoted by Yves, I’m with you bro (or sis). My own brief experience representing the state in the middle of the “Age of Reagan” provided similar experiences with how things work, although I didn’t see a lot of differences at the state and local level. Looking back, especially on the whole drug war thing, none of us had any excuse for going along. Props to Yves’ correspondent for at least trying. Too many of us didn’t. On their future plans: take it from this ex-lawyer who walked away under his own power while still in good standing, leaving the law was the best thing I ever did for myself and my family. Godspeed to you.

  25. Full Stop

    I am angry that powerful people don’t get indicted for crimes while regular folk do. But I am equally furious that HRC is the one getting busted based on a fishing expedition born out of the politicized Benghazi affair. If Benghazi had been about looking into whether or not the CIA was routing weapons to rebels in Syria, then I might be sympathetic. But no, this was about the fact that the administration didn’t use the right language in describing the attacks and may have alluded to the incident being caused by a video and was not quick enough to pin the blame on Al Qaida, even though their saying these things out loud would not have changed anything. In other words, a tragic event happened that was like countless tragic events that happens under any administration’s watch and the GOP started a fishing trip.

    We all know that if we want to bring down any president we just need to start a scandal and then spawn fishing trips. With the countless interactions a president and their staff has it is almost certain that they will be caught doing something wrong. Perhaps they will go to a campaign event while on an official government trip. Should they have skipped the event even though it would have been very convenient? How many people, from work, have used office phones to call up the mechanic and arrange for a time to take the car in? We all do it and we are all vulnerable. And we all know that if we chose to create a massive fishing expedition aimed at Trump we could find loads of dirt much more serious than what is confronting HRC.

    So in light of the context, do we really want to bring HRC down when we know this was the aim of the GOP all along and we all know that they are sitting on equally reprehensive acts that are going unpunished? And do we really think this will change things? As if, by punishing HRC we will somehow make it the norm to bust powerful people for their crimes. To me, that is the crux. If I believed for half a second that this would somehow set a new standard and that the Justice Department and the FBI and SEC and so on would actually start prosecuting powerful people for the crimes we know they are committing then I would say yes, she should be indicted. Lock her up. Lock them all up! Or, compare her crime to what others really are doing. Lying to get us into wars. CEOs who break the law to earn billions and get off with a small fine in comparison. How many politicians knowingly allow our banks to launder money for drug cartels and do nothing while actively throwing the book at low-level users and dealers? It’s rampant. And yet we are hung up on the fact that HRC sent classified emails on an unsecure server. Emails that probably shouldn’t have been classified. Content of classified emails that should be scrutinized more than their classification status. How about the fact that we don’t question the actions being discussed in those emails because they would be supported by GOP politicians anyway and they do not want those acts to be the focus of any investigation? Instead, we pretend that the mode of her communication is some kind of grave issue and we are willing to prevent her from being president over the guy who willfully scams people and admits to paying off politicians. We have all been played by the GOP’s scandal machine.

  26. KnotRP

    Why does everyone presume Clinton would not assist or otherwise allow information to land in the hands of foreigners?
    Seems like the unstated presumption of the article is that she wouldn’t sell out the US to a foreigner under any circumstances… that a good bet? Depends on what you mean by *is*?

  27. KnotRP

    Answering my own hypothetical, I think the presumption is that the SoS gets to pick who is a friend, and who is an enemy, of the US. So there is discretion inherent in the job.

    But how does oversight of that critical government function work, when Clinton has expended a remarkable amount of effort over a long period of time to directly undermine FOIA request & government records requirements? This is what I find appalling — that she had the time and motivation to scrub out the normal government records necessary to determine whether she is conducting official government business on behalf of the US, or not. Especially in the “if you are doing nothing wrong, what do you have to hide?” war on terror era she gets a free pass issued when normal non-governmental officials living private lives are having every email they’ve ever sent vacuumed up for evaluation relative to the national good.

    Double standard doesn’t begin to describe it.

  28. FortyYearsInThe UniversitySystem

    A thought: I am never convinced that any situation of political importance is all on the individual. I am not convinced of any unitary theories of command and control. In short, it ain’t Hilly or Billy but the outfit they clearly work for: the inheritors of the Rhodes dream of Anglo-Saxon ownership of the entire world, which is to say, the CFR. If not for the power of the CFR (which really means the combined power of the oligarchs represented by the CFR) neither of these two CFR aparatchiks would possess any immunity whatsoever. In the words of Captain Bryant in Bladerunner they would just be “little people”. So it seems almost to me that fretting about which stooge gets off this time is missing the point because there is always another stooge lined up for the job in case this one gets picked off. Always.

  29. WorldBLee

    Another question rarely addressed in these musings on the Clinton case is the accusation that her motivation for using her own server was to be able to keep any emails she wanted out of FOIA requests–which due to her deletion of many emails before their delivery to the government seems to have been accomplished successfully, at least so far. Whether she committed “espionage” or not, it’s widely acknowledged that she was doing dealmaking with the Clinton Foundation while serving as Secretary of State. Granted, there may not be hard evidence to prove this link but the circumstantial evidence in terms of donations to the CF and arms deals involving those countries is extremely damning.

  30. uncle tungsten

    Great story and love the comments. I can see why Bernie Sanders should be endorsing Clinton in a tactical sense. I will hazard an explanation.

    Comey (in his mind) fatally wounded Hillary Clinton without exposing himself as a coverup merchant. He is wrong of course but he definitely resides in a fool’s bubble. Comey handed enough specifics of evidence to enable a wholesale demolition any credibility HRC had left. The dogs of war are out baying for her blood as a result.

    Bernie Sanders has moved so close as to tactically shut out any third person chance to get the nomination should the dogs of war take her down. My guess is that Comeys antics will drive the detestation of HRC harder and deeper to point where she will have little margin with Trump. Consider that Bernie Sanders is clearly seen to be a solid Democrat supporter (and reformer), he did not traipse off after the hapless Greens as he has millions more support than they can muster, he did not maul HRC viciously (its not in his character) through the campaign, he brings vast numbers of new voters to the game to fulfill the adage that Democrats win when voter turnout is high.

    He is most likely the only Democrat who could pull off a last minute switch as nominee with any prospect of trouncing Trump. It is a long shot of course but starting a revolution and seeing it through is a long game necessitating tactics that include persistence against heavy odds, shock, surprise and tactical positioning in both political space and ethical behavior. I know many are seriously p!ssed with him but what else is there than catch the momentum and resources that can position a win now or in three years.

  31. Hill_Frog

    Would an indictment of Clinton over her handling of sensitive information via email forced the identification and indictment of those who exchanged that information with her?

  32. John Bennett

    I was in the Foreign Service for about 30 years. Early in my career, I left classified material on my desk twice and got caught. It didn’t happen again. Fear did its job.
    That may not work with senior people who think they are too important. They need to be protected with effective help or replaced. It really is that simple.

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