Tuesday, July 5, 2016

My thoughts on Clinton's FBI pardon

The logic of the FBI's decision to not push for charges against Clinton was that all previous similar convictions have exhibited an element of intent. For instance, Petraeus, who got off easy himself, willfully divulged secret information to the reporter he was having an affair with. Whereas with Clinton, the unsecure handling of state secrets was more of a side effect of her activities. At the very least, he uses sound logic, which I appreciate. Although appointed by Obama, Comey is actually a lifelong Republican. Now, not all conservatives use logic well, but a liberal who uses logic well is a rare bird indeed these days. Nevertheless,  I take a few issues with his decision, and with where that leaves us, as listed here.

Clinton was not absolved of guilt

Comey never explicitly states whether Clinton broke the law, but his description of her actions clearly detail that she did. His argument is not that no crime was committed, but that they were of a nature that has no history of successful prosecution. His conclusion was not that federal laws were not broken, but that no prosecutor would take on the case.

The FBI has in fact prosecuted for similar crimes

Bryan H. Nishimura was investigated by the FBI for removing classified materials to personal devices and storage media. While he had no intent for that information to be vulnerable to foreign access, he was still prosecuted and pled guilty. Comey seems to ignore this case in asserting there is no precedent. I wonder how many others there are.

It sets precedent of some laws being unenforceable

The law states that for these kinds of security breeches, lack of intent does not matter. Clearly it does, because the FBI Director has just said that violations without intent are not legally enforceable. Clearly there is a disconnect between the laws being created by Congress and the enforcement by the executive branch. Even in other areas, like HIPPA, negligence of private information is forbidden by an act of Congress. While the FBI decision does not carry legal precedent like a court ruling, it sure will set a precedent in the minds of all Americans. That message is either (a) negligence to protect sensitive material as dictated by federal law is not actually enforceable, or (b) there is a massive double standard between what is punished for those in the highest tiers of government and the regular people.

It is still a damning conclusion

"Extremely careless" with government secrets is no endorsement for a candidate seeking the highest office in the land. It should be a career killer. Also, she should have her security clearance permanently revoked, as would happen to anyone who was declared to be reckless with secret information by both the FBI and the State Department Inspector General. So do we elect a president with no security clearance, or, again, do we say that due process for these things does not apply to certain people?

It proves that Clinton lied about her emails

Initially she said she sent no classified information. Then she said it wasn't classified at the time she sent it. Both confirmed to be false by the Director of the FBI. Of course, Hillary is already known to be capable of deliberately lying in her public statements, so there is no news here. In other words, if her supporters don't care about her previous lying, they won't care about more proven examples of her lying either.

It ignores her intent to violate other federal laws

While her loose handling of state secrets might have been incidental, the whole point of the email server seems to have been to avoid FOIA requests. This also falls under federal jurisdiction, but was not mentioned by Comey.

Plus, the lack of intent notion is a can of worms. No one says she intended to distribute the information. The question was if she moved the information to a non-secure area. Obviously she intended to do so when she conducted business on a private server.

It assumes the emails weren't compromised by foreign governments

Comey says there is no evidence that the servers were hacked, but admits there is no proof they weren't. Further he admits that the FBI doesn't know the contents off all the emails that were on her server. So we don't know what might have been leaked. This is scary for 2 reasons. First, there was classified information up to the level of SAP/SAR, a fact not mentioned by Comey, but widely reported a few weeks ago. Any leaks of this level have the potential to compromise the entire special access program. So at this point it is possible that black-world programs have been compromised, and the US government doesn't know.

Second, it opens a real threat for blackmail against the potential president. He does seem to indicate that, of the deleted emails that were recovered, not much classified information was found. And yet, do we want to elect a woman who probably didn't expose the most sensitive of government information, and who probably isn't being blackmailed?

I have to wonder what will happen if the Russians, who are rumored to have hacked the server, end up releasing her missing emails. If that is even possible, Comey has made a very risky move. So either (a) he took the risk of having the entire year-long investigation, and his decision to not push charges, invalidated immediately by foreign action. (b) He is supremely confident her server was never hacked. (c) They've come to some agreement with Russia directly. Only (b) sounds real likely. I can't imagine him taking the risk of (a), and (c) sounds a bit shadowy, although not impossible.


Ostensibly Clinton's status has been moved from "possibly criminally negligent" to "confirmed extremely careless." But, as I've argued, even that's false, because she was criminally negligent. Comey doesn't think she'll be successfully prosecuted, and that's that. Yes, Bryan H. Nishimura was prosecuted for a similar deal, but he's a little person. Director Comey doesn't think the courts can convict a Clinton.

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