Thursday, July 07, 2016


Political Mayhem Thursday: The Clinton Email Investigation

Many followers of the Razor have, at one time or another, sat in my Criminal Practice class. It is the first class I ever taught, and my favorite-- it is the class that I wish I had taken in law school, the one that lays out how things really work (or at least that is my intent).

The class focuses on a few important things, including the respective roles of investigators and prosecutors and the importance of the elements of a crime.

Let's talk about elements first. In the investigation of Hillary Clinton's emails, one of the statutes in play was 18 USC 1924, which reads as follows:

(a) Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, 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.
(b) For purposes of this section, the provision of documents and materials to the Congress shall not constitute an offense under subsection (a).
(c) In this section, the term “classified information of the United States” means information originated, owned, or possessed by the United States Government concerning the national defense or foreign relations of the United States that has been determined pursuant to law or Executive order to require protection against unauthorized disclosure in the interests of national security.

Based on the things FBI Director Jim Comey (who was a classmate of IPLawGuy at William and Mary) said this week, it seems that a good argument can be made that the elements of this crime were met. Clinton was an employee of the United States. By virtue of her office she possessed documents. These documents contained classified information (almost by definition-- remember that any Secretary of State is going to generate  as well as receive classified documents that she knows contain sensitive information, given that so much of her job involves state secrets). She removed these documents to a server at her home. Her home server was not an authorized location for those documents.  She intended to retain those documents there.

Right?  So the elements seem to be met.

Now let's talk about investigators and prosecutors. Admittedly, Comey is a lawyer, a former prosecutor, and a former Deputy Attorney General. However, his role here was as an investigator.

Both an investigator and a prosecutor have lots of discretion. The investigator has the discretion not to refer a case to the prosecutor-- that is, they can just drop it.  The prosecutor, if they get the case, can choose to charge it or not. (The charge above is a misdemeanor, and would not need to go to a Grand Jury).

Usually, unless there are compelling circumstances or the case is very minor, investigators are expected to present a case to the prosecutor if there is good evidence on each element. The prosecutor then decides if the case is worth pursuing, and evaluates the proof on each element. That did not happen here.

The usual process was subverted in large part because the Attorney General recused herself and announcing that she would defer to whatever the investigators decided. Thus, the investigator did not leave it up to the prosecutor to decide if the elements were met and the case worthy; instead, he decided that "any reasonable prosecutor" would have declined the case, and then did not present it for prosecution. Lynch then closed the case.

I think he should have handed the file over to prosecutors to make the determination of whether or not the elements were met and prosecution was warranted.With Lynch recused, he could have gone to the US Attorney in New York.

One factor that merits more analysis, and appears to have been central to the decision Comey made, is that no comparable case exists-- prior cases involved people carrying hard-form data out of an office. That reflects a static analysis that doesn't take into account the way that people use data now. You don't carry home a floppy disk-- you email things to yourself, an act that seems to constitute "removing documents." The law cannot look for guidance to a different technological era in a case involving modern technology; we have to look at how things are now. I am not sure that happened here.

Well,... I'll dive in on this (and, in advance, please excuse my rather pedestrian background in the inner workings of the law). It seems clear to me (even as a Democrat) that what Clinton did was technically illegal, and should be a cause for outrage. As a Democrat, I am not at all happy about it and am dumbfounded by the stupidity of the act, although I understand the bunker mentality that lead to it.

Seems to me that the decision to prosecute hinges on her intent as well as the government's past enforcement precedents for such actions. As to intent, There's not much evidence that she intended to willfully distribute the material to outside interests for personal (as was the case with General Petraeus). She was merely clumsy and felt privileged in her ability to do this. Sad, but not criminal. In this regard she is not alone. Reading the Washington Post's extensive summary of the content of the emails several months ago, it became crystal clear to me that there would not be an indictment. The reason I felt there would be no indictment was the government's tendency to over-classify and the widespread disregard that process has instilled in its officials. Essentially, DOJ would have to indict large numbers of current and former high-level officials, including Clinton subordinates and associates as well as Colin Powell and Condoleeza Rice. That is, if we are to assert that equal protection means anything.

As to precedent, There isn't much as as Mr. Comey made clear. We have far more aggregious and suspicious intermingling of personal and public email systems that have gone unpunished in past administrations with far more willful steps taken to hide their actions. Forgive the partisan nature of this piece, but I am feeling lazy:

So to flip an old axiom around, what's good for the gander, is good for the goose. I think Director Comey made the right decision - clearly he didn't like the taste it left in his mouth, considering the highly unusual public tongue lashing he provided at the announcement. Was Clinton's act criminal? Perhaps on paper, but not in the way the government under both parties governance have administered the law. Regardless of what the FBI and DOJ decided, it was inescapably going to be a highly political affair. The decision not to prosecute was wise and in keeping with precedent.

If we'd like our government to start enforcing these laws in a different manner, so be it; but not in the middle of a Presidential election.
The Washington Post -- the ultimate repository of Beltway wisdom -- said in an editorial (reprinted in the Strib this morning) that clumsiness was not a crime, as it lacked intent. Professor Osler succinctly describes here why the Post is dead wrong.

There are other examples where gross negligence can get you convicted of a serious crime: vehicular homicide being one of them.

The Post also huffed and puffed and said that Comey had forgotten his place in the Beltway scheme of things: that his remarks about Clinton's conduct were extracurricular, and that he should have just he recommended no indictment. But I think the Comey statement was in the finest Beltway tradition, neither too cold or too hot, but rather a mushy, compromising warm.

But there is another shoe to drop here, and I will bring that up a little later.
I think a lot of us that don't practice criminal law on a regular basis (including those of us who have taken your class, i.e. me) could use a refresher on the different types of intent.

The phrases "specific intent" and "general intent" come to mind, but without googling them, you got me on the definitions, other than the obvious.

We have an idea of how this works in practice. We know for example that if you intend to take a specific action, you essentially intend the logical consequences of your actions. But then there are details, and laws that change the underlying common law when it comes to specific crimes. And without practicing criminal law, all the details get mixed up.

For example: three people knowingly pull the trigger on their gun and kill someone. One lay in wait for his lover and shot her in cold blood. One attended a political rally and got really excited when the ku klux klan showed up and called him really really really bad names (that is three bads, no small matter), so he decided to "shut them up" by "scaring" them. He swears he only meant to shoot the gun over their head. The last one was hunting. He missed the deer and hit the guy standing 200 yards away on the opposite ridge.

We intuitively know these are three different crimes, if a crime at all in the case of the last one, and intent plays a pivotal role in distinguishing them, even though in each case the actor intended to pull the trigger on the gun.

Here, the FBI director seemed to apply a different standard than your basic, she intended to do the act standard (whatever that is called.) He stated or implied that because she did not intend the logical consequence, there was no crime. That makes sense, if and only if there is a statutory basis for that change in the standard.

Or maybe I'm wrong, and actually that makes sense in the real world under the heading of "discretion" and/or "case law."

One article I read on this really focused on the latter. (I wish I could find the article right now.) He said that while a law student (or professor?) could definitely make the case that Clinton broke the law, that at least two recent examples suggest otherwise; Sec. Powell's use of a public email service like gmail to a much smaller degree than Clinton, and Gen. Petraeus giving classified documents to his biographer and lover. The latter plead guilty to a misdemeanor for actions that arguably had a higher degree of intent than Clinton's, and no one is really concerned about Powell's actions.

So in conclusion, what do you make of the use of the word intent in this case? Did Comey apply a different standard than was called for under the law, and if so, was that a reasonable act of discretion?

This comment has been removed by the author.
The mens rea requirement for the statute I cited is this: That she intended to retain classified material in an unauthorized location, and that she knew the material was classified. There seems to be good evidence as to both.

It is a crime if the elements are met. Prosecutors have discretion to charge crimes or not (and they often don't.

But... you are saying it is not a crime ("Sad, but not criminal"). Look at the statute. Which element stated there fails in this case? Elements are what define a crime.
Given that it is a crime, what do you make of his use of discretion, given the Powell and and Petraeus examples, and the changes in technology that you alluded to?

It is a jump-ball call. I think that Comey split the baby by attacking Clinton in the press conference but not forwarding the misdemeanor for prosecution.
Here's the text of a tweet from Reuters:

"UPDATE: FBI director says questionable whether Clinton had sophisticated-enough understanding to recognize classified email markings"

Why am I not reassured?

I also read this week at we've successfully prosecuted a 29-year-old enlisted sailor for taking a photo of a nuclear submarine. The Obama administration has been very aggressive in prosecuting taking away and retention of classified information. The little people, anyway.

That's another annoying aspect of the WaPo editorial I referred to earlier: the suggestion that Comey's remarks were not how important people are handled.

But the point I wanted to make, and the other shoe I referred to, is that the email breaches are almost certainly impeachable offenses. I am satisfied you can be impeached for things you did before taking office. Both Spiro Agnew and Abe Fortas resigned in the face of an impeachment for things they did before taking office.

The impeachment clause is silent, but there is nothing in Madison's notes to the Constitutional Convention, or in the Federalist Papers, that I can find, that would prohibit an impeachment for things done before taking office.

The Republicans are figuring this out. Paul Ryan has already called for hearings. They'll just change the name of the committee after the election. It's a recipe for more gridlock and a weak president, one who might be tempted to Wag the Dog internationally.

It will be a great Jeopardy question in a hundred years though: A husband and wife who were impeached.
Director James Comey is testifying right know. It is clear that he and his staff concluded that Hillary Clinton did not know that the material was classified. This was an unanimous conclusion by all within his department. He saw no intent. They concluded that she didn't intend to retain classified material. They agreed that she probably should have known the three paragraphs included in three emails which were marked with a C were classified. He addressed the statute you cite but without intent there is not a crime present that could to be prosecuted. He is effectively putting to bed all the speculation on the idea that she knowingly handled classified material.

Comey has been a registered republican for most of his life. He is disturbed by the fact that Hillary Clinton and 1000s of others have been so careless with classified material. He stated that these long time practices endangers those who could be culpable as well as our country. We all should be concerned.

Comey is coming off as an honest voice he a nasty political world.

John makes a good point. Here are some observations having had a TS-SCI or "Top Secret" clearance.

There seems to be a bit of a loophole specifically on whether she knew the information was classified. I don't think that is necessarily far fetched, but I'll give both arguments.

For example, there is space between an average soldier or the secretary of state, intentionally removing documents, physical or digitally, that they knew were classified, and in contrast, setting up an email system for day to day use without ever intending to use it for classified material or knowing that it was used for classified material.

The counterpoint is, "YOUR SECRETARY OF STATE, of course you knew or should have known that at some point, someone somewhere was going to send you classified material. The someone in your position setting up the outside server will or likely will result in the mishandling of classified material. You intend the logical consequences of your decision.

Her response:"No, there are separate information systems and global DOD and State Department intranets (physically separate from the internet) for information that is classified as Secret, and for information that is classified Top Secret. I did not expect to receive classified information on my primary day-to-day email system, and I never recall seeing any that was marked as such. The facts show that I did receive attachments that were marked as classified, but I don't recall necessarily opening those attachments, and if I did, I must have overlooked the markings."

This is all pure speculation on my part, but you can see how the decision to charge may have turned on some very specific details.

To Clinton's credit, it appears that she wisely did not lie to a Federal Prosecutor which is what trip up so many people in these type of situations.

Correction, she didn't lie to a Federal Investigator.
Regarding David Best's discussion. This makes sense to me by virtue of how ordinary people ordinarily use email. Vast amounts of text go by often reviewed hastily on small hand-held devices. I believe the count was 110 messages on 52 email threads - that's essentially asked and answered (52x2=104). There were 30,000 government emails. So the offending emails comprise 0.3% of the government emails. Those messages were also mixed in with an additional 32,000 non-governmental emails, so that's 0.18% of her total emails.

She was in office for roughly four years (208 weeks), so every two weeks or so (on average)a message might come by that had classified material. But each one of those was buried among about 600 benign emails. Classified material is supposed to be maintained on a separate secure system. This is stupidity on a very human scale, not an intentional criminal act - Not sure if gross negligence covers it, either. God knows she doesn't really need to go out of her way for the opposition to gin up a scandal to beat to death with.
I see it as the difference between, say a General taking home a stack of briefings each night, 2 or 3 of which are typically classified. (That would be a crime.) Versus a General taking home a stack of briefings each night, none of which he thinks are classified, but which it turns out over the course of a few months, a few of which had some classified material.

The law calls for the prosecution of people who knowingly remove classified material. Comley concluded that she just didn't know the material was classified.

None of that would be a violation of the law I discussed--he has to KEEP the material at home. That is the necessary intent. So, if he kept his work files at home instead of the office, and didn't care much if it was classified (and some of it was), you can see the problem, right?

Though the modern unsecured internet is more like keeping it at a bar than at home.
I see the problem with the decision to keep it at home not much caring if it is classified.

Two things.

First, the statute doesn't seem to specifically state how long you have to keep the documents. Overnight, a two week working vacation, a sabbatical at the cabin working on one's memoirs? So that is one way in which the statute is unclear. But set that aside.

For me 110 classified document in light of 30,000 is starting to reframe this for me, hence the analogy to a general with a stack of documents in which there is classified material she don't know is there, vs the general who knows what he is doing, and just doesn't care.

I guess the detail we don't quite know is, when did Clinton become aware that she had classified material on her server, and what did she do at that time?

It could be that the ratio doesn't matter. If you knowingly remove one document and store it offsite, that is a crime. But the ratio does matter for understanding whether she knew 110 documents in a stack of 30,000 documents were in fact classified.

Suppose we add the word "stack" to your initial analysis of the elements.

"By virtue of her office she possessed a stack of documents. These stacks of documents contained classified information. She removed these stacks of documents to a server at her home. Her home server was not an authorized location for those stacks. She intended to retain those stacks of documents there."

Ok, but did she knowingly remove the classified material.

Did she know the stack of 30,000 documents contained classified material or not--speaking directly to the phrase, "knowingly removes" in the statute.

In one scenario, she receives an email with classified material on her home server. Doesn't know the classified material is there. Forwards it on. And then latter is made aware that the material is classified. What she does next seems key. Does she continue to store it in an unauthorized location or return it to its proper place when she is made aware of it?

Pardon all the parsing. I'm just having fun with this, and view it kind of like continuing legal education as a new attorney who has a lot to learn.

Information is classified "when it is born" -- I read that somewhere recently -- if it relates to national security. It doesn't have to be marked by the great classifier in the sky to be classified. If it is marked, it puts everybody who comes in contact with it on notice that it is, sure enough, classified. If you have one example of unmarked classified information that sneaks by a person, fine, but when there are multiple examples over an extended period of time, the conclusion of gross negligence becomes harder to avoid.
And much of it was, in fact, marked.
Many classified documents are clearly marked as such, at least they were when I served in the Air Force. Most of these are products of the intelligence community which is used to carefully marking documents. However other documents just have small notations in the margins for particular paragraphs that contain sensitive information in a document that does not otherwise discuss classified material.

Technically, if one part of a document, or a hard drive, or a flash drive contains or has contained classified material, regardless of how it is marked, it is classified. But when it comes to what a person reasonably should know, the way a document is marked is relevant.

When a few paragraphs in a 100 page report, among thousands of similar documents is classified, one can see how that could be overlooked.
One factor is this: The Secretary of State doesn't just receive classified information, she GENERATES it. That is, she typically describes or refers to sensitive material necessarily in the emails she sends out (and stores in the server at home, apparently). It's a red herring to talk about whether what she had was marked when she received it-- it is what she writes down that often is going to be most sensitive. That's one thing at the root of the real problem here.
1. I found this analysis and discussion very helpful. Thank you, Mark (and David and everybody else).

2. I agree with John that Comey comes out of this looking like a person of high integrity. Of course, I liked him a lot already. If nominated by either party in 2016, I would happily vote for him for president.

3. Two weeks ago (two months ago or even a year ago) I was not only convinced but also at peace with the idea that DOJ would never indict Hillary Clinton (for legitimate reasons within their extremely wide latitude as prosecutors). Not that the decision would not be political. Why would a Democratic president and a Democratic AG, in a moment in which "prosecutorial discretion" is practically a catch phrase, go out of their way to indict the Democratic nominee for president? But nothing really nefarious about it. It is a borderline call--and the benefit of the doubt goes to the home team. Fine. Not perfect justice--but not anything I would brand a travesty. Peace.

However, after learning more and hearing Comey's 14-minute indictment, followed by his brief explanation of why she was guilty but not worth charging, and then his swift retreat from questions from the press, I had a pit in my stomach. And, after hearing learned analysis like yours, Mark, and others, I felt much worse about the non-indictment I had all along felt sure was imminent than I had ever imagined myself feeling.

Having said that, Comey made things a bit better today. I get it. Intent is a big deal. As David pointed out, intent makes all the difference. Intent, I suppose, will play a huge role in how we adjudicate the police shootings in Baton Rouge and Falcon Heights. And Comey claims you cannot find a case similar to Clinton's in which the feds prosecuted an ordinary Joe. If true, and I assuming it must be, that makes me feel better.

4. As for the politics, if I were a Republican who only cared about winning in 2016, I would be happy. I would want to run against Hillary--who has always been beatable and now more so. Please no indictment. But, instead, you get Comey's 14 minutes to break down into 30-second spots and then the exchange between Gowdy and Comey today in which Comey is led through a recitation of Hillary's false statements. Pretty powerful.

Having known Mark personally for some time, I can assure you that he is engaged in no witch hunt, nor does he dabble in partisan politics.

Like you, I have questions about the definition of knowingly and intent and how they are applied here. However the only reason I press the issue is so that, as a new attorney, I can learn from someone who has decades of experience prosecuting those who abuse their power, defending those in need, and advocating for justice, including at the White House and Supreme Court.

With respect to everyone else on the thread, with his last comment, the Perfesser endeth the lesson for the day.
Anonymous cowards will be deleted. If you have an opinion, put your name to it.
I 'm saying this without having read Comey's report, so please correct me if I'm wrong.

It seems to me that, once Sec. Clinton decided to use the home server instead of the State Dept's, in her mind that was the "authorized" server (whether it was or not); it was THE place where she stored electronic documents. I do understand that there ended up being documents stored on more than one (private?) server, which leads to my next point . . .

Who knows what was actually going on in her thinking, with every email she wrote, sent, received, or forwarded? It's hard to imagine she or anyone would stop to remember, in handling each of those 600+ emails per day, that what was stored -- kept -- on the server or servers was not the State Department's server.

Hence her unbelievably dumb decision to use her private server in the first place.

I suppose I'm questioning the extent to which the investigators could discern her intent to "keep" documents (maybe she didn't think much about it, once she'd established her one private server). . . and going back to the Professor's point about the lack of precedent: wrestling with all these concepts seems to me more slippery when dealing with electronic messages on servers rather than old-fashioned pieces of paper in locked file cabinets in a physical location.

I do think it's going to be a huge problem for her in the campaign, and it's a problem she inexplicably brought on herself.

I also hope that the State Dept staff members implicated with Clinton don't end up getting the brunt of punishment for her actions.

Amy, I fear that your last sentence may become a reality. The administrative punishments that can't reach Clinton (since she is no longer at the State Department) will affect those who worked for her.
I would agree with you on your point that our Secretaries of State do generate classified material if you didn't limit it to to Hillary Clinton. Secretaries Powell and Rice refused to provide any of their emails when asked. The FBI determined that Hillary Clinton and all those involved followed the existing culture of the State Department. These loose practices could still exist today as Congress and others are fixated only on the politics. Comey's message that action is needed to correct these practices were not followed up.

Director Comey addressed your fear that her predecessors and those who exchanged emails with her could be affected. They have already investigated all involved and determined that there was not a criminal act and that no one intended to bring harm to our country. He told the committee that they are free to ask for further investigations but the facts will not change and that they are dedicated to treat everyone involved evenly.
The republican congress has little reason to act responsibly, and they probably won't. They will sit in their place of power, narrow their eyes as they challenge some underlings. It makes good TV.
Part of the reason there were only 110 docs out of 30,000, is that there are in fact these two or three separate global intranet systems for classified information. All the things that were obviously and clearly classified were likely on those systems, for example daily intelligence briefings from the CIA. If she was asked for input on a Top Secret program, the request and her response would be on the Top Secret system. The system isn't so special, it till uses Outlook and stuff like that, it's the contents that is classified.

So yes the Secretary of State generates classified information, but there is a system in place for it.

The ratio of classified information to unclassified information suggests that she was using the appropriate channels for the most part. Except when she wasn't.

A separate issue that may shed some light on her conduct is the over-classification of information. This does not change the legal analysis on knowingly removing classified information. But there is widespread agreement by some in the intelligence community, that the community tends to slap a classified sticker on just about everything.

As an enlisted analyst, I would not have dreamed of inserting my own judgement on the matter. But, I think it is fair to say that Senators and Generals, and people like that sometimes do.

I think we can all appreciate a time where we bent or broke what we thought was a stupid bureaucratic rule. (Not justifying, just observing.) I would not be surprised if that was exactly part of Clinton's thinking. Again, not relevant legally, until it is, until you are making the hard call on whether to charge her or not. Presumably, the FBI agents involved saw the classified material.

Just offering another angle, not really a defense to the conduct.

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