Clinton Email Investigations: Trump Justice Department Revives Them
Hillary Clinton
The Justice Department is reviving investigations involving Hillary Clintonâs emails and the degree to which the State Department during Mrs. Clintonâs tenure as secretary was put in the service of the Clinton Foundation. Good. Indeed  it is long overdue. It underscores a point weâve tried to make repeatedly here: You donât need a special counsel for this kind of thing; such investigations are what we have a Justice Department full of career prosecutors for. The perverse institution of the independent prosecutor should be shunned whenever possible â and its jurisdiction tightly confined in the rare necessary case.
Obamaâs first point led to one of the great head-fakes in modern law-enforcement history â one that reverberates to this day. Using his bully pulpit  the president framed the  Clinton  case as one of negligence. The portrayal stuck: Incessantly  the Justice Department  the media  and eventually James Comey  then-director of the FBI  addressed the case in terms of Mrs. Clintonâs purported carelessness â a hardworking public officialâs regrettable but forgivable inattention to detail.
Even now  critics of  Clinton  and the FBI are in a lather over reports that  as Comeyâs team drafted his remarks exonerating  Clinton  (notwithstanding that key witnesses  including  Clinton   herself   had not been interviewed)  agent Peter Strzok changed the term âgrossly negligentâ to âextremely careless.â Substantively  these terms are indistinguishable. The emendation is said to be critical  though  because the statute applicable to  Clinton âs conduct criminalizes âgross negligence.â If Comey had said the words âgrossly negligent â so the story goes  it would be the equivalent of pronouncing  Clinton  guilty.
This was a straightforward case of criminal intent. Negligence was the fallback position â for a prosecutor  an âeven ifâ theory  as in: âEven if youâre not convinced by our overwhelming evidence of  Clinton âs willfully illegal retention and transmission of classified information  you can still comfortably find  her  guilty if you conclude that  she  was grossly negligent â which  as the judge will tell you in his instructions  simply means âextremely careless.ââ
Mrs. Clintonâs criminal intent was so clear that its obfuscation also required Obamaâs second point: Mrs. Clintonâs lack of intent to imperil the United States. Director Comey hammered his bossâs legerdemain again and again. And why not? After all  it was true  â Clinton  unquestionably had no desire to endanger our country. Itâs always good to go with the truth . . . especially if you have the luxury of a Democrat-smitten media that wonât ask whether the truth youâve highlighted is relevant to the matter under investigation.
Second  you may be saying to yourself: âBut âintent to harm the United Statesâ is significant  so it should be part of a classified-information offense.â Thatâs right  and thatâs why it is a part of a classified-information offense â it just happens not to be the offense weâre talking about in Mrs.  Clinton âs case.
If an official illegally transmits classified information âwith an intent or reason to believe that the information is to be used to the injury of the United States â then that official commits the more serious felony offense prescribed at the top of the Espionage Actâs scale â subsection (a). If someone had suggested charging  Mrs. Clinton  with this treasonous offense  then  she   President Obama  and Director Comey would have been quite right to stress that  she  had no such intent. But no one suggested that. Rather  it was urged that  she  had transmitted classified information on purpose  but not with intent to do the country harm. That is less heinous than the treasonous offense. But it is still egregious. It is a crime that puts the lives of intelligence sources and the effectiveness of life-saving intelligence operations at risk.
That  Clinton  did not intend that any harm come to the United States does not make  her  innocent of willfully transmitting classified information to unauthorized persons or places.
Moreover  it is a black-letter principle that a personâs innocence of Crime A is inadmissible to prove that the person has not committed Crime B. For example  the fact that I have not personally sold drugs has no bearing on whether I laundered drug money. And the fact that  Mrs. Clinton  did not intend that any harm come to the United States does not make  her  innocent of willfully transmitting classified information to unauthorized persons or places  or of retaining it when  she  left the government and when the State Department finally requested that  she  surrender the government records in  her  possession.
Regardless of whether my motive theory is sound  however  the evidence that  Clinton  willfully mishandled classified information is mountainous.
Before she was ever secretary of state   Clinton  lived and worked in a White House where classified-information protocols were observed.  She  had to apply these protocols for years as a senator whose committee assignments were intelligence-intensive. Before becoming secretary of state   she  was indoctrinated in the handling of classified information and signed documentation attesting that  she  had read and understood the relevant executive orders about intelligence classification and handling.
 Clinton  well understood that the position of secretary of state involved immersion in classified information.  She  wrote in  her  memoir about the extraordinary steps  she  was required to take to safeguard classified information. Given the nature of  her  responsibilities for foreign relations and national security   her  decision to conduct all  her  government business on a private server system made it inevitable that classified information would be transmitted in and stored on the private system. There is no possibility that  she  did not know this. The private system  she  set up was in violation of government and State Department regulations.  Her  loyal staff fought efforts to bring  her  into the government email system â even though  she  forced the resignation of an ambassador over  among other things  his conducting of government business over an unauthorized private email system.
When the request was made that  Clinton  surrender  her  emails to the State Department   she  turned them over to  her  own lawyers and subordinates who did not have the security clearances required for access to the information.  She  destroyed tens of thousands of emails  even though they were under subpoena  so that they could not be reviewed by the State Department or the FBI. Of the 30 000  she  deigned to surrender to the State Department  over 2 000 contained classified information  some of it among the nationâs most highly classified national-defense secrets. And  she  serially lied in  her  public statements about  her  emails  in congressional testimony (in which  she  brazenly claimed to have turned over all work-related email to the State Department  and that  her  lawyers had carefully reviewed every email before designating which should be surrendered and which withheld)  and in  her  FBI interview (in which  she  pretended not to know what the ubiquitous â[C]â designation â for confidential â in classified documents meant).
Any prosecutor who understood there was no need to prove intent to harm the United States would be delighted to take that case to the jury â especially once the prosecutor realized heâd get to tell the jury: âEven if you suspend disbelief and buy the defense argument that  she  didnât mean to horde and transmit classified information  you must still find  her  guilty if you conclude  she  was grossly negligent â as in âextremely carelessâ.â
The Justice Department is reviving investigations involving  [TGT] âs emails and the degree to which the State Department during Mrs. Clintonâs tenure as secretary was put in the service of the Clinton Foundation. Good. Indeed  it is long overdue. It underscores a point weâve tried to make repeatedly here: You donât need a special counsel for this kind of thing; such investigations are what we have a Justice Department full of career prosecutors for. The perverse institution of the independent prosecutor should be shunned whenever possible â and its jurisdiction tightly confined in the rare necessary case.
Obamaâs first point led to one of the great head-fakes in modern law-enforcement history â one that reverberates to this day. Using his bully pulpit  the president framed the  Clinton  case as one of negligence. The portrayal stuck: Incessantly  the Justice Department  the media  and eventually James Comey  then-director of the FBI  addressed the case in terms of Mrs. Clintonâs purported carelessness â a hardworking public officialâs regrettable but forgivable inattention to detail.
Even now  critics of  Clinton  and the FBI are in a lather over reports that  as Comeyâs team drafted his remarks exonerating  Clinton  (notwithstanding that key witnesses  including  Clinton   herself   had not been interviewed)  agent Peter Strzok changed the term âgrossly negligentâ to âextremely careless.â Substantively  these terms are indistinguishable. The emendation is said to be critical  though  because the statute applicable to  Clinton âs conduct criminalizes âgross negligence.â If Comey had said the words âgrossly negligent â so the story goes  it would be the equivalent of pronouncing  Clinton  guilty.
This was a straightforward case of criminal intent. Negligence was the fallback position â for a prosecutor  an âeven ifâ theory  as in: âEven if youâre not convinced by our overwhelming evidence of  Clinton âs willfully illegal retention and transmission of classified information  you can still comfortably find  her  guilty if you conclude that  she  was grossly negligent â which  as the judge will tell you in his instructions  simply means âextremely careless.ââ
Mrs. Clintonâs criminal intent was so clear that its obfuscation also required Obamaâs second point: Mrs. Clintonâs lack of intent to imperil the United States. Director Comey hammered his bossâs legerdemain again and again. And why not? After all  it was true  â Clinton  unquestionably had no desire to endanger our country. Itâs always good to go with the truth . . . especially if you have the luxury of a Democrat-smitten media that wonât ask whether the truth youâve highlighted is relevant to the matter under investigation.
Second  you may be saying to yourself: âBut âintent to harm the United Statesâ is significant  so it should be part of a classified-information offense.â Thatâs right  and thatâs why it is a part of a classified-information offense â it just happens not to be the offense weâre talking about in Mrs.  Clinton âs case.
If an official illegally transmits classified information âwith an intent or reason to believe that the information is to be used to the injury of the United States â then that official commits the more serious felony offense prescribed at the top of the Espionage Actâs scale â subsection (a). If someone had suggested charging  Mrs. Clinton  with this treasonous offense  then  she   President Obama  and Director Comey would have been quite right to stress that  she  had no such intent. But no one suggested that. Rather  it was urged that  she  had transmitted classified information on purpose  but not with intent to do the country harm. That is less heinous than the treasonous offense. But it is still egregious. It is a crime that puts the lives of intelligence sources and the effectiveness of life-saving intelligence operations at risk.
That  Clinton  did not intend that any harm come to the United States does not make  her  innocent of willfully transmitting classified information to unauthorized persons or places.
Moreover  it is a black-letter principle that a personâs innocence of Crime A is inadmissible to prove that the person has not committed Crime B. For example  the fact that I have not personally sold drugs has no bearing on whether I laundered drug money. And the fact that  Mrs. Clinton  did not intend that any harm come to the United States does not make  her  innocent of willfully transmitting classified information to unauthorized persons or places  or of retaining it when  she  left the government and when the State Department finally requested that  she  surrender the government records in  her  possession.
Regardless of whether my motive theory is sound  however  the evidence that  Clinton  willfully mishandled classified information is mountainous.
Before she was ever secretary of state   Clinton  lived and worked in a White House where classified-information protocols were observed.  She  had to apply these protocols for years as a senator whose committee assignments were intelligence-intensive. Before becoming secretary of state   she  was indoctrinated in the handling of classified information and signed documentation attesting that  she  had read and understood the relevant executive orders about intelligence classification and handling.
 Clinton  well understood that the position of secretary of state involved immersion in classified information.  She  wrote in  her  memoir about the extraordinary steps  she  was required to take to safeguard classified information. Given the nature of  her  responsibilities for foreign relations and national security   her  decision to conduct all  her  government business on a private server system made it inevitable that classified information would be transmitted in and stored on the private system. There is no possibility that  she  did not know this. The private system  she  set up was in violation of government and State Department regulations.  Her  loyal staff fought efforts to bring  her  into the government email system â even though  she  forced the resignation of an ambassador over  among other things  his conducting of government business over an unauthorized private email system.
When the request was made that  Clinton  surrender  her  emails to the State Department   she  turned them over to  her  own lawyers and subordinates who did not have the security clearances required for access to the information.  She  destroyed tens of thousands of emails  even though they were under subpoena  so that they could not be reviewed by the State Department or the FBI. Of the 30 000  she  deigned to surrender to the State Department  over 2 000 contained classified information  some of it among the nationâs most highly classified national-defense secrets. And  she  serially lied in  her  public statements about  her  emails  in congressional testimony (in which  she  brazenly claimed to have turned over all work-related email to the State Department  and that  her  lawyers had carefully reviewed every email before designating which should be surrendered and which withheld)  and in  her  FBI interview (in which  she  pretended not to know what the ubiquitous â[C]â designation â for confidential â in classified documents meant).
Any prosecutor who understood there was no need to prove intent to harm the United States would be delighted to take that case to the jury â especially once the prosecutor realized heâd get to tell the jury: âEven if you suspend disbelief and buy the defense argument that  she  didnât mean to horde and transmit classified information  you must still find  her  guilty if you conclude  she  was grossly negligent â as in âextremely carelessâ.â