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2016 Postmortem
In reply to the discussion: Hillary's Email Scandal for Non-Techy People [View all]Gothmog
(145,279 posts)101. ANALYSIS: No, Hillary Clinton Did Not Commit a Crime ... at Least Based on What We Know Today
There was not crime committed here. Dan Abrams (son of Floyd Abrams) has some good analysis here http://abcnews.go.com/Politics/analysis-hillary-clinton-commit-crime-based-today/story?id=36626499
In the Wall Street Journal, Judge Michael Mukasey seems to be arguing that because this all just feels wrong and even criminal-y, Clinton should at least be charged with a misdemeanor. That is, of course, not how the law can or should work. In fact, Judge Mukasey learned the hard way that misstating the law when discussing the case against Clinton can be hazardous. Judge Mukasey also echoed the conservative talking point that the case against Clinton is eerily similar to the charges against former general David Petraeus: "This is the same charge brought against Gen. David Petraeus for disclosing classified information in his personal notebooks to his biographer and mistress, who was herself an Army Reserve military intelligence officer cleared to see top secret information." Except that it is nothing like that case. Apart from the possible charge, there are actually few or no similarities from a factual perspective as the lead prosecutor in the Petreaus case explained in an op-ed in USA Today:
In the law, intent can be everything. Petraeus clearly knew he was violating the law, but based on what we know today, there is no evidence - not suppositions or partisan allegations but actual evidence - that Clinton knew that using a private email server was criminal or even improper at the time. Even assuming for argument's sake she created the server to keep her emails out of the public eye, that is in no way remotely comparable to the Petraeus case. Efforts to contrast the two cases fall flat factually and legally....
To be clear, none of this means Clinton won't be charged. There may be a trove of non-public evidence against her about which we simply do not know. It's also possible that the FBI recommends charges and federal prosecutors decide not to move forward as occurs in many cases. No question, that could create an explosive and politicized showdown. But based on what we do know from what has been made public, there doesn't seem to be a legitimate basis for any sort of criminal charge against her. I fear many commentators are allowing their analysis to become clouded by a long standing distrust, or even hatred of Hillary Clinton.
"During his tenure as the commander of the International Security Assistance Force in Afghanistan, Petraeus recorded handwritten notes in personal journals, including information he knew was classified at the very highest level. . .
Both the law and his oath required Petraeus to mark these books as 'top secret' and to store them in a Secured Compartmented Information Facility. He did neither. Rather, Petraeus allowed his biographer to take possession of the journals in order to use them as source material for his biography.
Importantly, Petraeus was well aware of the classified contents in his journals, saying to his biographer, Paula Broadwell on tape, 'I mean, they are highly classified, some of them. They don't have it on it, but I mean there's code word stuff in there.' When questioned by the FBI, Petraeus lied to agents in responding that he had neither improperly stored nor improperly provided classified information to his biographer. Petraeus knew at that time that there was classified information in the journals, and he knew they were stored improperly."
In the law, intent can be everything. Petraeus clearly knew he was violating the law, but based on what we know today, there is no evidence - not suppositions or partisan allegations but actual evidence - that Clinton knew that using a private email server was criminal or even improper at the time. Even assuming for argument's sake she created the server to keep her emails out of the public eye, that is in no way remotely comparable to the Petraeus case. Efforts to contrast the two cases fall flat factually and legally....
To be clear, none of this means Clinton won't be charged. There may be a trove of non-public evidence against her about which we simply do not know. It's also possible that the FBI recommends charges and federal prosecutors decide not to move forward as occurs in many cases. No question, that could create an explosive and politicized showdown. But based on what we do know from what has been made public, there doesn't seem to be a legitimate basis for any sort of criminal charge against her. I fear many commentators are allowing their analysis to become clouded by a long standing distrust, or even hatred of Hillary Clinton.
Dan is a good lawyer and this is a good analysis of the law on this issue
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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