Does anyone know exactly which federal statute Hillary might be suspected of violating? I cannot think of a single statute (though I am sure there must be some) in which a willful intent to violate the law is an element of the crime. I cannot imagine how her purported behavior in this case can be anything other than illegal whether or not she intended to violate the law. Anyone know the elements of the crime she is being investigated for committing?
At present, just administrative stuff: whether she was in full compliance with departmental regulations. There is no “crime” under investigation at all.
By setting up her own private e-mail server used to transmit and receive FOUO and classified information, Clinton potentially violated at least three laws:
[LIST=1*
[li]18 USC Sect 793(f) - Gathering, transmitting, or losing defense information[/li][li]44 USC 2209 - Disclosure requirement for official business conducted using non-official electronic messaging accounts[/li][li]5 USC 552 - Freedom of Information Act (FOIA) and its subsequent amendments and modifications[/li][/LIST]
To suggest that setting up a private, non-authoritized or government auditable server which was deliberately used for the transmittal and receipt of official government communications is “just administrative stuff” is completely disingenuous. If a private citizen with a security clearance working as or for a government contractor handling government data had, say, set up an e-mail server at home and sent himself FOUO as a pattern of behavior, he would be suspended or summarily terminated, investigated by DSS, the pertinent customer agency, and if classified data were involved the FBI and US Attorney’s office. This is an issue that anyone holding a security clearance as to attend a briefing on an annual basis, so there is no pretext that the data handling and reporting requirements were not understood.
Stranger
This is the standard Clinton campaign spin, and until recently was more or less tenable. But no longer.
Here’s an article that shows how the DOJ has (rather quietly) confirmed it’s not about “administrative stuff”: How a FOIA Request into Hillary Clinton’s Emails Revealed a Criminal Investigation
And here’s an interesting take on the situation from Huffpost: Hillary Clinton Should Concede to Bernie Sanders Before The FBI Reveals Its Findings
Sending classified materials to an unsecured email address might be a crime. Receiving such emails is not a crime.
Well, number 3 is not a criminal law. It imposes obligations on the State Department. That is, it is just administrative stuff.
Number 2 only became law on November 26, 2014, or about 18 months after she left the State Department.
Number 1 is a gif of a guy using a rocket-powered wingsuit to kick people in the chest. If Hilary is guilty of that, she is the awesomest presidential candidate in the history of the world.
[quote=“Stranger_On_A_Train, post:3, topic:754047”]
By setting up her own private e-mail server used to transmit and receive FOUO and classified information, Clinton potentially violated at least three laws:
[LIST=1*
[li]18 USC Sect 793(f) - Gathering, transmitting, or losing defense information[/li][/quote]
That law kicks ass. It’s clearly the most exciting part of the U.S. Code.
But back to the factual matter, this law sets up a pretty high bar. It requires that someone entrusted with defense information that allows someone else to obtain that information. This is a far, far different matter than the situation Stranger posits, in which someone shows that they can’t be trusted to appropriately handle sensitive information and faces termination or a revoked clearance – but the hurdle of revoking a security clearance or firing someone is a substantially lower bar than convicting them of violating the Espionage Act.
I don’t know the facts well enough (and who does, really?) to guess whether there exists probable cause to argue that Clinton committed this crime such that an indictment can be expected, but her defense would probably argue that defense information wasn’t “lost” in the way the statute lays out, and that her actions may have been casually negligent, but not grossly negligent.
Of course, these matters go to the issue of criminal culpability. There’s of course opposing sides as to whether this is a matter of character.
These laws do not apparently have any consequences in terms of criminal penalties. Again, one can debate whether one should have a lower opinion of Clinton because of these legal responsibilities for all government officials, but it doesn’t appear that there are criminal penalties for failing to conform to FOIA laws.
The HuffPost “article” is by a dead-ender Sanders partisan with no knowledge of or interest in the facts.
Occam’s razor tells you everything you need to know about the investigation: if there were anything to it beyond partisanship, something would have come up that the Republicans could wave like a bloody shirt. Instead, there have been years of '“what might further investigation show”? That’s all there is now. That’s all there will ever be.
However, not reporting the receipt of information known or suspected to be classified on a non-secure server or computer is certainly a violation of a contractor or government agent’s security clearance agreement, and allowing access of that information to a non-cleared person could be viewed as espionage, even if no malicious or treasonous intent was involved.
Shit fuck ass…I do not know how that happened, but here is 18 USC 793 which details the requirements and penalties for gathering, transmitting, and mishandling of classified defense information. Agreed that if Ms. Clinton could fly and kick ass like that, she should be given some substantial role, albeit more in an operational context–say, as the leader of some kind of top secret NSC commando squad–than president.
There are not penalties for violating FOIA, as the intent of the law was to compel agencies to make available to the public records which are maintained by those government agencies and agents in the performance of their duties. However, as Secretary of State, Hillary Clinton was very aware of her responsibility to maintain publicly accessible documentation about her duties and interactions with various counsel or influences, and make deliberate efforts to obstruct ready availability to that information.
Now, to be clear, this is not an issue restricted to Ms. Clinton; the problem of government actors at all levels using commercial or private e-mail servers and accounts to conduct official business is a pernicious problem that crosses party and ideological lines. Part of the problem is that the government e-mails systems themselves often pose an obstruction to efficient performance of job duties, to the point that they cannot be readily accessed while on travel or otherwise acting in a normal capacity. There is no evidence that Hillary intended any malfeasance in terms of how the data was used or disseminated, e.g. she wasn’t providing data to hostile parties or non-US persons. But this wasn’t a case of just forwarding a few e-mails to her Yahoo.com account so she could read them at home; she made a deliberate, concerted, and ongoing effort to get around the security and auditing requirements that the government has determined are necessary to comply with FOIA and other laws, and then was resistant to providing access to her private server after it was determined to be used in an inappropriate fashion.
This does not speak well for transparency of a hypothetical future Clinton administration, nor to Ms. Clinton’s respect for the law and belief that she is subject to it. As an employee working for a private contractor, if I had done such a thing, I would be fired, clearance permanently revoked, and would likely be facing indictment for violating provisions of 18 US 793 and possibly other laws. Arguing that Hillary Clinton, acting in the role as Secretary of State, should be treated in a different fashion than a lower level government functionary or private contractor holding a clearance is disingenuous to an extreme. I doubt that Donald Trump would have any more respect for such laws (although since he has never held any government agent or elected position there is no factual basis to say what he would or wouldn’t do in a similar situation) so it isn’t an issue of differentiating between the integrity of candidates but just an observation that Ms. Clinton clearly sees herself as above the laws that she, as a clearance holder and government actor, is obligated and has agreed to follow.
Stranger
But so far, there has been nothing sent to the server that was classified at the time it was sent (a handful of emails were classified later).
As for the article, every two weeks for the past six months there’s been an article saying, “This is it, no shit, Hillary is going down. It’s real this time. I promise.” And none of them have turned out to be true. You’d think people would learn.
Just to be clear, you’re saying over two thousand is a handful?
This is the best thing I’ve seen all day :). Good show, Stranger!
Those are all fine opinions to have, and everyone is entitled to their opinion on Clinton’s character, but very little of the post has to do with the factual question of what criminal law is at stake and the related question of what the law means.
Again, the standard for wrongdoing under 793(f) is “gross negligence,” which is "more than a simple act of inadvertance." In the context of protecting national security information, I would tend to think of gross negligence as leaving a classified document unattended on a city bus, or something along those lines.
There’s another law that could play in this investigation, which is 18 USC 1924. This is a misdemeanor that prohibits the knowing removal of classified documents without authority and with the intent to retain the documents at an unauthorized location.
If Clinton knew that her emails contained classified information, and she used a private email system to communicate that information, on the face of it, it would seem to be a “knowing” retention of classified information. If, however, the facts are that the information was not actually classified at the time of the emails, then it would seem impossible that anyone could be penalized for retaining information that was unclassified when it was obtained, but later deemed to be classified.
The investigation would have to suss out such matters, but clearly some people have formed an opinion on Clinton’s suitability for the office of President without respect to whether any criminal law was violated or not.
You Americans are just so darned cute when you get all riled up about these things! The rest of the world just wants to offer you a cookie and suggest you take a nap;)
agreed that not reporting the leakage of any information she knew or suspected of being classified is a violation of her security clearance agreement, assuming she had one, but one would have to first find some evidence that she knew or suspected these emails were classified. To date, I don’t believe any such evidence has even been alleged. I have heard people say that since emails were subsequently classified, that is sufficient. I can’t imagine that holding up in any kind of hearing. I think we all agree that her chances of obtaining a government security clearance has shrunk to zero with this case.
Good thing she doesn’t need a clearance to be President. 
As far as espionage, seriously? Doesn’t that require the deliberate transmittal of classified information to a foreign power? This case doesn’t satisfy any single part of those requirements.
Everyone including Mrs. Clinton acknowledges that retrospect using a private email server was a bad idea. At the time, it seemed like a good idea. Oops.
I agree with below, time for a cookie and a nap. Unfortunately, this will remain one small part of the campaign until election day. After that, no one will care.
Like no one cared about Obama’s birth certificate?
I’m pretty sure no one cared about that before *or after *the campaign.
Oh, gods. Well, it’s still a step up from impeaching a sitting president for getting a blowjob.
Stranger
Moderating
In the interest of keeping this in GQ, let’s avoid this kind of side commentary. Let’s focus on the specifics of the legal issues.
Colibri
General Questions Moderator
“FOUO”?