CONGRESSIONAL PROBE FINDS EVIDENCE
OF FBI PROTECTING HILLARY CLINTON
IN E-MAIL INVESTIGATION
BY C. MITCHELL SHAW
republished below in full unedited for informational, educational, and research purposes:
Congressional investigators have turned up new information indicating
that high-level FBI officials including ousted director James Comey
decided ahead of time to exonerate Hillary Clinton (shown) of doing
anything illegal in her use of an unsecured, unauthorized, private
e-mail server to send and receive classified e-mails during her tenure
as secretary of state. Not only that, but evidence indicates that the
FBI buried facts regrading Clinton wrongdoing.
In the myriad investigations now swirling around Hillary Clinton, it
is reasonable to ponder which one she should be most concerned about.
Yet it would be difficult to imagine one that could do more to damage
her than the investigations connected to her use of a private server.
After all, not being indicted (yet!) is not the same thing as being
found not guilty. Clinton could presumably still be charged, tried, and
convicted for the multiplicity of crimes she committed by sending and
receiving at least 2,079 classified e-mails over her private server and
account. With congressional investigators looking into the matter, it is
not beyond the realm of possibility that she may yet have to face
charges for her actions.
As
The Hill reported
last week, a panel made up of “Republicans on three House committees
and the Senate Judiciary Committee” have newly uncovered irregularities
and contradictions inside the FBI’s probe of Hillary Clinton’s email
server.” As that report stated:
For the first time, investigators say
they have secured written evidence that the FBI believed there was
evidence that some laws were broken when the former secretary of State
and her top aides transmitted classified information through her
insecure private email server, lawmakers and investigators told The Hill.
That flies in the face of ousted FBI Director James Comey’s statement
when he publicly declined to recommend indicting Clinton because “our
judgment is that no reasonable prosecutor would bring such a case” since
the FBI did not find evidence of “intentional misconduct or indications
of disloyalty to the United States or efforts to obstruct justice.”
Because sending and receiving at least
2,079 classified e-mails, initially
refusing to turn over her server, and then
only turning the server over to investigators after having it wiped, and
claiming that she had turned over “all work-related” e-mails while actually deleting half as many as she turned over are all apparently, in Comey’s mind, the actions of someone who did not intend to break the law. Right.
Fortunately for the American people and the cause of justice (and
unfortunately for Clinton), congressional investigators don’t buy that.
And Comey — already summarily dismissed from his position (and none too
soon) — may have to answer for
his role in protecting Clinton.
As to whether Clinton intended to break the law, two important facts
should not be missed: First, her intent is irrelevant; second, she
certainly knew she was breaking the law and did so with full intent.
Her intent is irrelevant because the applicable statutes do not allow
for ignorance as an excuse; nor should they — national security demands
that those responsible for guarding it are held to a very high
standard: 18 USC Sec. 1924 criminalizes the unauthorized removal and
storage of classified information. Penalties can include fines and
imprisonment for up to one year. And while Clinton claimed early on that
many of the classified e-mails should not have been classified, she
lacked the authority to make that call.
In 2009, President Obama signed Executive Order 13526, which spells
out — in uncharacteristically clear language — the process for
declassifying intelligence and who has the authority to do so. One part
of the order says, "Information shall be declassified or downgraded by
... the official who authorized the original classification ... [or] the
originator's current successor." Since other agencies (
such as the CIA) classified the intelligence in those e-mails, Clinton could not simply decide it didn’t count.
Furthermore, 18 US Code 793 — which is part of the Espionage Act — says:
(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.
“Gross negligence” does not require intent. Clinton broke a slate of
laws designed to protect national security from actions exactly like
those she directed and performed. Intent is not the germane issue here.
And — just to put in the for-what-it’s-worth column — Clinton
certainly was aware of her responsibilities and the salient fact that
her actions were contrary to those responsibilities. In short, the
evidence is indisputable that Clinton knew she was breaking the law, and
she did so deliberately.
First, there are the two non-disclosure agreements (NDAs) that
Clinton signed as part of her employment as secretary of state. As this
writer said
when the first of those NDAs came to light in November 2015:
The NDA signed by Mrs. Clinton on her
second day as secretary of state spells out — in language so clear that
the meaning of the word "is" is quite unambiguous — her responsibility
in handling the sensitive information to which she would have access in
her new job. One part reads, "I have been advised that the unauthorized
disclosure, unauthorized retention, or negligent handling of SCI
[Sensitive Compartmented Information] by me could cause irreparable
injury to the United States or be used to advantage by a foreign
nation." The agreement goes on to address how Secretary Clinton could be
sure she was abiding by the letter and the spirit of the agreement. "I
understand that it is my responsibility to consult with appropriate
management authorities in the Department ... in order to ensure that I
know whether information or material within my knowledge or control ...
might be SCI," the NDA says.
And yet, while the ink of her signature
was still wet, Hillary made the decision to re-purpose Bill's old e-mail
server into her own server to be used for official government business.
She and her campaign have made much of the fact that she was permitted,
by State policy, to operate a private server. Par for the course,
though, the fact is conveniently left out that her server was not
authorized to contain, store, transmit, or receive classified
information.
Besides the NDAs showing that Clinton was well aware of her responsibilities under the law, there is the also fact that an
e-mail exchange,
dated June 22, 2015 and published by WikiLeaks in October 2016, shows
that Clinton’s inner circle didn’t even buy into her claim of ignorance
where the e-mail server was concerned. As this writer
reported
at the time, the e-mail was written by Erika Rottenberg, an attorney
with tremendous experience in matters related to the intersection of
technology and law. Given her résumé, Rottenberg can safely be assumed
to know a thing or two about the law as it relates to the mishandling of
information over an unsecured, unauthorized, private e-mail account.
The e-mail (addressed to Stephanie Hannon — who is the the chief
technical officer of the Clinton Campaign — and Ann O’Leary — who serves
as a senior policy advisor for the campaign) addresses the “twisted
truth” of the way Clinton claimed she “only used one device” (a
BlackBerry) “when 2 weeks earlier, it was an iphone, BB [BlackBerry] and
ipad.” But the most damning part of the e-mail is when Rottenberg says:
I know when I talk to my friends who are
attorneys we are all struggling with what happened to the emails and
aren't satisfied with answers to date. While we all know of the
occasional use of personal email addresses for business, none of my
friends circle can understand how it was viewed as ok/secure/appropriate
to use a private server for secure documents AND why further Hillary
took it upon herself to review them and delete documents without
providing anyone outside her circle a chance to weigh in. It smacks of
acting above the law and it smacks of the type of thing I've either
gotten discovery sanctions for, fired people for, etc.
Phrases like “secure documents,” “took it upon herself,” “above the
law,” and “discovery sanctions” — coming from a lawyer with so much
experience in matters of the law where technology is concerned — speak
volumes about Clinton’s intent.
Furthermore, if Clinton had no intent to break the law, her
deliberate actions — and those of her associates (read: accomplices) —
aimed at hiding her use of that private server, would make no sense: one
who is unaware she is breaking the law does not attempt to hide the
fact that she is breaking the law. But in February 2016, records
disclosed by Department of State as part of a Freedom of Information Act
(FOIA) lawsuit reveal that Hillary Clinton — and senior officials
within the State Department — acted to set up a hidden computer network
to allow her to access her private e-mail server without going through
the secured — and archived — government network.
As this writer
reported at the time:
The revelation came to light Monday when Judicial Watch made public the
records
received as the result of a court order in its FOIA lawsuit about the
private e-mail server and account Mrs. Clinton used during her time as
secretary of state. According to a release by Judicial Watch, the
records included an e-mail thread detailing plans to "set up a
stand-alone PC in the Secretary's office, connected to the internet (but
not through [the government] system) to enable her to check her emails
from her desk."
The e-mail thread — covering a two-day period right after Mrs.
Clinton was sworn in as secretary of state — destroys any doubt that
Mrs. Clinton and her accomplices were aware that they were keeping her
e-mails "off the grid." It discusses — in clear language — the plan to
allow “email be accessed remotely through the web using a non-DOS
[Department of State] computer” and to set up another office unconnected
to the government network “for HRC so she can go across hall regularly
to check her email.”
Given all of this, it is no wonder that congressional investigators
have found “irregularities” in the FBI investigation that claimed
Clinton did not intend to break the law.
Those investigators have also discovered more evidence that Comey’s
FBI had already decided to exonerate Clinton even before the
investigation was complete.
The Hill reported:
Some
Republicans on the committee say the findings and revelations have left
them more convinced than ever that FBI leadership rigged the outcome to
clear Clinton.
Matt Gaetz (R-Fla.) — who serves on the House Judiciary Committee —
said, “This was an effort to pre-bake the cake, pre-bake the outcome.”
His comment was prompted by revelations that Comey had already begun
drafting his report recommending against indictment before FBI
investigators had interviewed more than a dozen key witnesses including
Clinton herself and the computer firm employee who used the open-source
program (Bleachbit) to permanently wipe the private server before
Clinton turned it over to investigators. Gaetz’s analogy of pre-baking a
cake is spot on; in this case, the cake was taken out of the oven and
served before all of the ingredients were even assembled.
Senate Judiciary Committee Charles (Chuck) Grassley (R-Iowa) is equally critical of the FBI’s handling of the case.
The Hill quoted Grassley as saying:
Making a conclusion before you interview
key fact witnesses and the subject herself violates the very premise of
good investigation. You don't lock into a theory until you have the
facts. Here the evidence that isn't public yet shows they locked into
the theory and then edited out the facts that contradicted it.
While the investigation continues, the
Justice Department inspector general “is expected to release initial
findings” in the case in the first quarter of 2018, according to The Hill.
That probe has also been looking into “whether agents and supervisors
had political connections, ethical conflicts or biases that affected
their work.”
Any way you slice it, the Clinton e-mail scandal is not going away
any time soon. And before it is over Clinton and those who helped and
protected her may have to face the music.
