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2016 Postmortem
In reply to the discussion: Hillary's Email Scandal for Non-Techy People [View all]Gothmog
(145,265 posts)97. Why Hillary Won't Be Indicted and Shouldn't Be: An Objective Legal Analysis
Here is a good legal analysis as to why Hillary Clinton will not be indicted http://prospect.org/article/why-hillary-wont-be-indicted-and-shouldnt-be-objective-legal-analysis
Relevant law is found in several statutes. To begin with, 18 USC, Section 798 provides in salient part: Whoever knowingly and willfully
[discloses] or uses in any manner prejudicial to the safety and interest of the United States [certain categories of classified information]
shall be fined
or imprisoned.
The most important words in this statute are the ones I have italicized. To violate this statute, Secretary Clinton would have had to know that she was dealing with classified information, and either that she was disclosing it to people who could not be trusted to protect the interests of the United States or that she was handling it in a way (e.g. by not keeping it adequately secure) that was at least arguably prejudicial to the safety or interest of the United States.
The statute also provides a definition of what constitutes classified information within the meaning of the subsection described above: [C]lassified information, means information which, at the time of a violation of this section, is specifically designated by a United States Government Agency for restricted dissemination.
Again, the most important words are the ones I have italicized. First, they indicate that the material must have been classified at the time of disclosure. Post hoc classification, which seems to characterize most of the classified material found on Clintons server, cannot support an indictment under this section. Second, information no matter how obviously sensitive does not classify itself; it must be officially and specifically designated as such.
Lesser penalties are provided under 18 USC 1924 which provides that an officer of the United States commits a criminal violation if that person possesses classified documents or materials and knowingly removes such materials without authority and with the intent to retain such materials at an unauthorized location.
Prosecutors would also encounter stumbling blocks if they charged Clinton under this law. First, it is unclear whether classified information conveyed in an email message would be considered a document or materials subject to removal. Moreover, with respect to information in messages sent to Clinton, it would be hard to see her as having knowingly removed anything, and the same is arguably true of information in messages that she originated. If, however, she were sent attachments that were classified and kept them on her server, this law might apply.
But even if this section did apply, a prosecutor would face difficulties. Heads of agencies have considerable authority with respect to classified information, including authority to approve some exceptions to rules regarding how classified information should be handled and authority to declassify material their agency has classified. It would also be hard to show that Clinton intended to retain any information sent to her if her usual response was to forward the information to another, and if she then deleted the material from her inbox, whether or not it was deleted from her computer......
Based on what has been revealed so far, there is no reason to think that Clinton committed any crimes with respect to the use of her email server, including her handling of classified information. While it is always possible that information not revealed will change this picture, at the moment Clintons optimism that she will not be criminally charged appears justified. The same is not necessarily true of those who sent her classified information. If it could be shown that they knowingly acquired information from classified sources and sent it unmarked to an unapproved server, their fate may be less kind than Clintons is likely to be.
The most important words in this statute are the ones I have italicized. To violate this statute, Secretary Clinton would have had to know that she was dealing with classified information, and either that she was disclosing it to people who could not be trusted to protect the interests of the United States or that she was handling it in a way (e.g. by not keeping it adequately secure) that was at least arguably prejudicial to the safety or interest of the United States.
The statute also provides a definition of what constitutes classified information within the meaning of the subsection described above: [C]lassified information, means information which, at the time of a violation of this section, is specifically designated by a United States Government Agency for restricted dissemination.
Again, the most important words are the ones I have italicized. First, they indicate that the material must have been classified at the time of disclosure. Post hoc classification, which seems to characterize most of the classified material found on Clintons server, cannot support an indictment under this section. Second, information no matter how obviously sensitive does not classify itself; it must be officially and specifically designated as such.
Lesser penalties are provided under 18 USC 1924 which provides that an officer of the United States commits a criminal violation if that person possesses classified documents or materials and knowingly removes such materials without authority and with the intent to retain such materials at an unauthorized location.
Prosecutors would also encounter stumbling blocks if they charged Clinton under this law. First, it is unclear whether classified information conveyed in an email message would be considered a document or materials subject to removal. Moreover, with respect to information in messages sent to Clinton, it would be hard to see her as having knowingly removed anything, and the same is arguably true of information in messages that she originated. If, however, she were sent attachments that were classified and kept them on her server, this law might apply.
But even if this section did apply, a prosecutor would face difficulties. Heads of agencies have considerable authority with respect to classified information, including authority to approve some exceptions to rules regarding how classified information should be handled and authority to declassify material their agency has classified. It would also be hard to show that Clinton intended to retain any information sent to her if her usual response was to forward the information to another, and if she then deleted the material from her inbox, whether or not it was deleted from her computer......
Based on what has been revealed so far, there is no reason to think that Clinton committed any crimes with respect to the use of her email server, including her handling of classified information. While it is always possible that information not revealed will change this picture, at the moment Clintons optimism that she will not be criminally charged appears justified. The same is not necessarily true of those who sent her classified information. If it could be shown that they knowingly acquired information from classified sources and sent it unmarked to an unapproved server, their fate may be less kind than Clintons is likely to be.
There will be no indictment
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It's actually unbelievable. Keystone Kops in a way. Secretary of State, FFS.
CentralCoaster
Apr 2016
#27
IdaBroggs, this is a concise explanation! Well done! However, I think you should add...
FourScore
Apr 2016
#69
ANALYSIS: No, Hillary Clinton Did Not Commit a Crime ... at Least Based on What We Know Today
Gothmog
Apr 2016
#101
That is not a good analysis. You can get ten years for leaving secret docs on a bar stool.
leveymg
Apr 2016
#139
Here's something I learned . . . there are NO government documents marked "classified"
pdsimdars
Apr 2016
#72
"Some Or All" Of Clinton Emails Designated SAP Referenced Public Information About U.S. Drone Strike
Gothmog
Apr 2016
#140
No. Much of the TS classified material was NSA information dealing with events in Libya.
leveymg
Apr 2016
#151
What I see: of 127 Sid emails, only one appears to have been partial redacted by the Comm.
leveymg
Apr 2016
#194
There was one email where a name was redacted unnecessarily. You failed to make your case here.
leveymg
Apr 2016
#196
I am amused that you actually think that you understand the legal concepts being discussed
Gothmog
Apr 2016
#184
Delighted you are amused. But, again you err. Petraeus' binders weren't marked classified, but
leveymg
Apr 2016
#185
Nowhere does that state that his books were marked classifed; Sec 1924 and 793 r different statutes
leveymg
Apr 2016
#188
I thought DiFi was busy lying to the American people about the wretched effects legal weed is having
Warren DeMontague
Apr 2016
#163
This is one of those bait and switch analyses. Doesn't mention Sec. 793 the statute most
leveymg
Apr 2016
#145
I make a living parsing federal and state statutes for things such as intent and mens rea.
leveymg
Apr 2016
#154
There are six separate crimes under 793. (e) and (f) do not require specific intent
leveymg
Apr 2016
#161
When was the last time that you or someone you knew had just one FBI agent investigating personaly
nolabels
Apr 2016
#99
GOP created this story, and did so to try and destroy Hillary Clinton's chances to be president.
Jackie Wilson Said
Apr 2016
#80
They didn't create *the facts* of what she did, which apparently warrant investigation, at a minimum
JudyM
Apr 2016
#84
He brought approx 150 emails when he was subpoenaed by the Benghazi committee.
IdaBriggs
Apr 2016
#88
TRUE: "The mere fact that it exists was a breach of security with potential consequences."
IdaBriggs
Apr 2016
#29
You can carry the conservative Republican water all you like, won't make this issue more palatable
Tarc
Apr 2016
#68
No, TARC is a liberal, a Democrat who supports the party and is aware
Jackie Wilson Said
Apr 2016
#81
So you openly have hatred for the Democratic Party, noted. I know why
Jackie Wilson Said
Apr 2016
#92
That is ludicrous. Which of us will vote to prevent women from dying from self abortions?
Jackie Wilson Said
Apr 2016
#94
That is not the point, is it. Your attitude is carried with you everywhere you go.
Jackie Wilson Said
Apr 2016
#105
Really, your very negative attitude about Hillary is only expressed here on DU?
Jackie Wilson Said
Apr 2016
#109
Again, categorically false, per the Inspector General of the Intelligence Community.
IdaBriggs
Apr 2016
#133
Sticking to the facts is a great idea-why don't you provide the sourcing for your so-called facts?
Gothmog
Apr 2016
#134
I'm ready for it to wrap up. Surely they have enough of whatever they're looking for. Let's do this!
WhaTHellsgoingonhere
Apr 2016
#43
She wanted a custom ultra secure BlackBerry like Barak's and they would not give her one.
gordianot
Apr 2016
#56
Thank you and bookmarking :) - Hillary's Email Scandal for Non-Techy People nt
slipslidingaway
Apr 2016
#48
I've seen a number of videos on this and this looks like a great job. . . THANKS!
pdsimdars
Apr 2016
#71
The fact that you are not disclosing your sourcing is all anyone needs to reject this sad OP
Gothmog
Apr 2016
#110
I like complicated which which is why I sourced each and every one of my posts
Gothmog
Apr 2016
#135
Government Officials: None Of The Emails Were Marked As "Classified" When They Were Sent.
Gothmog
Apr 2016
#130
The fact that you have no sourcing for your silly and false claims is sad but amusing
Gothmog
Apr 2016
#171
Guccifer took screen shots/made copies of Hillary & Sidney Blumenthal's email.
IdaBriggs
Apr 2016
#166
Yes, it helps a lot. What a bizarre twist to an already convoluted
Land of Enchantment
Apr 2016
#182
Condoleezza Rice Aides, Colin Powell Also Got Classified Info on Personal Emails
Gothmog
Apr 2016
#127