Indicting Hillary

By William Boardman, Reader Supported News

16 May 16

 

It’s the server, stupid!

t’s not yet clear whether Hillary Clinton will be indicted. It’s not even clear in the broader sense whether Hillary Clinton should be indicted. But it’s crystal clear that, even on the limited amount of credible evidence now available, Hillary Clinton could be indicted. She could be indicted for what might be characterized as privatizing her government office. That, in effect, is what the Secretary of State did when she moved pretty much all her public government communication to a private email server at her home in Chappaqua, New York. That deployment of a private server for a government official is, as far as we know, unprecedented. The public business of the Secretary of State does not belong in anyone’s private domain. It’s a gross violation of sane and honest public policy. And it’s also illegal.

That’s why Hillary Clinton could be indicted. She has committed a unique offense. But how serious is the offense? Until the FBI completes its investigation, including thousands of emails as well as the server, we can’t begin to know what weight to give it legally. Politically, we can infer that the Clinton camp is terrified of any full reckoning, since Clinton and her surrogates have been minimizing and lying about the case from the beginning.

When Bernie Sanders said in an early debate that people were sick and tired of hearing about Hillary Clinton’s “damn emails,” he may well have executed a shrewd and deft bit of political jiu jitsu. First, he framed himself as more interested in substantive issues, rather than political gossip. He surely knew that, if an email of actual importance turned up, the case would take on a well-deserved life of its own. Meanwhile he could take the high road, ignoring mere peccadillos. And quite possibly, Sanders understood even then that the core issue was the server, not the emails, and that the FBI under James Comey was a good bet to carry out a thorough and honorable investigation. Sanders successfully took a principled position on the “damn emails,” while knowing that all he had to do was wait to make the move a win-win for him (if that’s the way it would turn out, with nothing to lose if it didn’t).

Is the FBI investigation a ticking time bomb for Hillary?

The FBI investigation seems to have been relatively leak-free since it began in July 2015. In early March 2016, an anonymous “senior law enforcement official” let it be known that a Clinton employee had been granted limited, non-specific immunity from prosecution. Grants of immunity are an indication of an investigation’s progress toward the target, in this case Hillary Clinton. So far the only known grant of immunity has gone to Bryan Pagliano, a Clinton 2008 campaign worker who set up her private government email server in her home in 2009. Spokesmen at the FBI and Justice Department would not comment, but Pagliano’s attorney confirmed the immunity agreement was in place and his client was cooperating.

The flurry of reactions to the immunity deal at the time were mostly politically dishonest on one side or another, but C-Span on March 18 spent some 49 sober minutes exploring the case with attorney Joe diGenova, former U.S. attorney for the District of Columbia (1983-1988) and now in private practice in Washington. While diGenova tends to lean right politically, his discussion of the Clinton case was dispassionate and analytical. Asked what advice he might give Clinton now, he answered: “Do not be interviewed by the FBI. If you lie, you will be in the same boat as General Petraeus. When you lie to a federal investigator, that creates incentive to work harder on the case.”

Curious, perhaps, that diGenova didn’t just advise Clinton to tell the FBI the truth, but he didn’t say why. At the time, now almost two months ago, diGenova believed the FBI had “a locked case,” and already knew who was involved and who was lying. He named several people, suggesting that the key person might be Patrick Kennedy, a career diplomat who was Under Secretary for Management under Clinton, without explaining his possible significance. He offered Hillary Clinton this free legal advice on the air:

“If I were representing Mrs. Clinton, and I think this may be part of her defense, she will say: ‘Look, the State Department knew I had this set-up all along. They didn’t stop me. They didn’t tell me not to do it. No one came and seized the computer [server]. There is no correspondence saying I should not do this.’”

Professional legal analysis leaves little doubt as to Clinton’s Guilt

In January 2016, Clinton had already used a variation of that argument at a public forum: “I’m not willing to say it was an error in judgment because what – nothing that I did was wrong. It was not – it was not in any way prohibited.” On C-SPAN, diGenova rebutted this line of argument:

Unfortunately, that’s not a defense, because for her, she is one of the ten people in the United States Government who has the generic statutory authority to classify information. There’s only ten people who can do it. She has the power to assist in the declassification of that, so her duty in terms of knowing things about classified information is much higher. So, when Patrick Kennedy doesn’t stop her from putting in an email server in her home to conduct all government business, even though after January 2009 – people may not have known right away that Mrs. Clinton didn’t have a .gov account, but within a couple of months everybody knew: isn’t it funny there are no .gov emails from the Secretary or her staff. At that point, what the department did or didn’t do becomes irrelevant to the criminal investigation because she’s in line – as the Secretary of State – to be President of the United States. And along with her job, not only to conduct foreign policy, comes the duty to understand and know classified information. That is the envelope from which the FBI is operating. This is not a GS-2 [employee] who accidentally slips a piece of paper in the wrong file and it stays out all night on somebody’s desk. This is a person with the highest classification authority possible, who used a private server to conduct all of her government business. This has nothing to do with politics. That’s illegal, per se. And the reason is very simple. The government has a classified email system for a reason: it’s to protect the integrity of national security information, national defense information, and to prevent its disclosure to unauthorized persons. The existence of that server violates every known federal law on the protection of classified information.

How many laws have to be how badly broken before it matters?

The crux of the issue is that Hillary Clinton, by using a private server, took possession of information that did not belong to her. It was the legal property of the US government and, ultimately, the American people. When deGenova asserts that Clinton’s email server “violates every known federal law on the protection of classified information,” he no doubt has in mind, among others, these:

• Federal Records Act, starting with section 1301, which requires that: “The head of each Federal agency [i.e., Secretary of State] shall make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency and designed to furnish the information necessary to protect the legal and financial rights of the Government and of persons directly affected by the agency’s activities.” Clinton’s private email server did not fulfill her mandated public duty.


• Freedom of Information Act (FOIA), as amended to allow “public access to information in an electronic format.” Clinton’s private email server effectively made this law a nullity. (There are already FOIA lawsuits proceeding in court based on Clinton’s private email server.)


• National Archives and Records Administration’s regulations, which require in considerable detail a systematic method of identifying, organizing, and preserving government records. Clinton’s private email server violated the intent and letter of this law to “ensure that complete and accurate records are made and retained in the Federal Government … in all formats and media” (section 1222.12). (Clinton also appears to have violated section 1236.22, which requires her records to be kept by the State Department’s record keeping system, not a private email server.)


• US Criminal Code, Title 18, Section 1924 which provides that any government employee [i.e., Secretary of State] who “becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both.” Clinton’s private email server was a known unauthorized location that retained classified documents. Clinton’s intent would be argued at trial.


• US Criminal Code, Title 18, section 793, which applies to the mishandling of Defense information (presumably shared with the State Department) and provides that anyone convicted “Shall be fined under this title or imprisoned not more than ten years, or both.” (Arguably there is a prima facie case, a case clear on the known facts, that Clinton has committed a felony under this and other laws.)

Additionally, when she became Secretary of State, Clinton signed a formal “Classified Information Nondisclosure Agreement” between herself and the United States. The agreement states that “classified information is marked or unmarked classified information, including oral communications.” The agreement says Clinton “received a security indoctrination” and understood it. In the agreement, Clinton agrees to share information only with authorized persons, and to determine in advance who is authorized, and further: “I understand that if I am uncertain about the classification status of information, I am required to confirm from an authorized official that the information is unclassified before I may disclose it….”

Will we be seeing a July surprise or a September surprise or…?

The FBI has interviewed a number of State Department employees and Clinton aides, but has not yet interviewed Clinton herself, according to The Hill on May 8, based on the views of people outside the investigation. The Hill, an inside-the-beltway journal which calls this “decision time for the FBI on Clinton,” editorializes that it expects a happy ending for the candidate: “The end of the investigation would be a relief for Clinton and her allies, who have faced questions for months over her exclusive use of the personal server.” An indictment of any sort, no matter how minor the offense, would not be such a happy ending for Clinton, and the basis for an indictment appears minimally solid, since laws have clearly been violated, whether intentionally or not.

Of course the case is quintessentially political, made all the more so with a target who is currently the leading Democratic candidate for her party’s presidential nomination, creating a host of questions for people who must be under remarkable pressure to get it right, whatever “get it right” means in a given context:

• Will the FBI present a full and accurate case that withstands reasonable public scrutiny?


• Will the Democratic Attorney General allow even a compelling case to lead to an indictment of her party’s candidate?


• Will the Democratic President allow such a case to threaten Clinton?

There’s no way to know, and much depends on timing. An indictment before the convention is likely to have a very different impact from an indictment between the convention and the election. An indictment after the election would depend for its impact on whether or not Clinton was then the president-elect.

Similarly, a decision not to indict Clinton would have impact depending to great extent on the same timing factors. Additionally, a decision not to indict would have greater or lesser impact depending on the strength of the evidence, or on whether the evidence was made public promptly. For example, Clinton running against a Donald Trump screaming “cover-up” is not a pretty picture, regardless of the validity of the claim.

The failure to indict Clinton would provoke something of a crisis in the FBI and intelligence services, according to some who claim to know people inside the agencies who have seen the evidence. This is possibly a bluff, but it also could be the basis for President Obama’s equivalent of the 1973 Saturday Night Massacre when President Nixon tried to shut down the Watergate investigation.

However the Clinton email server story comes down, the consequences are uncertain. Full disclosure of all the emails, for example, might answer the complaints of Haitians in recent years that Bill and Hillary Clinton, and the Clinton Foundation, have stolen billions of dollars meant to be used for rebuilding Haiti, still devastated six years after the 2010 earthquake. Haitians protesting against the Clintons in Haiti and at the Clinton Foundation in New York have generated little media attention, even though protestors claim Clinton used her position as Secretary of State to help loot Haiti. According to Dahoud Andre of the Committee Against Dictatorship in Haiti:

“We are telling the world of the crimes that Bill and Hillary Clinton are responsible for in Haiti. And we are telling the American people that the over 32,000 emails that Hillary Clinton said she deleted have evidence of the crimes they have committed.”

Clinton’s indictment isn’t the only the elephant in the room. Stay tuned.

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William M. Boardman has over 40 years experience in theatre, radio, TV, print journalism, and non-fiction, including 20 years in the Vermont judiciary. He has received honors from Writers Guild of America, Corporation for Public Broadcasting, Vermont Life magazine, and an Emmy Award nomination from the Academy of Television Arts and Sciences.

Reader Supported News is the Publication of Origin for this work. Permission to republish is freely granted with credit and a link back to Reader Supported News.