Tuesday, June 21, 2016

Why the FBI Recommending a Clinton Indictment is Becoming Likely.

There are some Clinton supporters exhibiting Tea Party-like lunacy who probably think nothing Hillary Clinton can do would justify an FBI indictment for breaking one or more laws and that there is always some explanation for everything. 

That she was caught lying repeatedly about her server and willingly and intentionally broke State Department rules is, according to them, and many of her voters "nothing." But what the FBI is currently weighing isn't breaking government rules or lying to the public but whether or not what Clinton did and her subsequent use of her email server for her entire tenure as Secretary of State resulted in criminal acts  and multiple criminal acts meaning that she violated statutes not just rules including multiple counts of mishandling classified documents, having them removed to an unauthorized location, a component of the Espionage Act, and additional felonies arising out of her unauthorized use of a private server and attempts at concealing it. And a decision on that is coming from the FBI very soon.

The Inspector General Report on Hillary Clinton and her use of a private email server, a report even friendly media outlets like MSNBC called "devastating" and revealed Clinton as " a liar" was an investigation Clinton refused to cooperate with. That ought to tell you something -- the former Secretary of State refused  to cooperate or be interviewed by the Inspector General of her own State Department into an investigation of her email server that she said had been approved and that everyone knew about. 

It's no wonder the report was called damning by everyone who's read it in that it exposed Clinton for having lied multiple times in public statements about her use of a private email server having been approved. Both the lies and the refusal to cooperate with the Inspector General has showed clear and intentional deception by Clinton. Her refusal to cooperate also was evidence that she was worried and proves intent to deceive. 

But deception,while a crime that could lead to multiple counts of obstruction and conspiracy to obstruct, while serious, is the least of everything piling up against Clinton. 

The OIG report set the record straight -- Clinton's server was never approved, Clinton never asked for approval and had Clinton asked for approval it would have been denied.

That Clinton never even asked to have her private server approved indicates a state of mind for Clinton that could be used in legal proceedings against her. State of mind is important in evaluating intent in criminal proceedings, since Clinton knew it would not be approved and decided to go ahead anyway because she wanted it  for her own purposes which had nothing to do with convenience, the excuse she first gave. 

And her state of mind clearly blows Obama's recent statement out of the water that whatever she did, he was sure was unintentional, a subtle indication that maybe he doesn't think the investigation is going Clinton's way. But a statement that is absurd on two levels. First lack of intent or unintended consequences is never a defense to breaking the law. You did or you didnt.Second, there is already proof that what Clinton did with her email server and keeping it a secret from authorities was intentional and that she knew she was violating rules and procedures. For the FBI they have to determine if all she did rises to the level of  criminal. And all that matters on that count is did Clinton break any laws.

From a legal point of view lying publicly is not a crime. However lying does reveal  Clinton's state of mind and intention to thwart, obstruct and deceive a government agency in the lawful administration of its functions,and so her lying is relevant. And Carl Bernstein's reporting has  filled us in on her real motive, not convenience  but that Hillary Clinton didn't want any of her emails subject to the Freedom of Information Act and wanted to circumvent it. Maybe for the same reasons she has so zealously guarded her Wall Street speech transcripts. She just didnt want anyone, watchdogs, the congress or the public to know everything she was doing.

 That alone is a crime, both breaking the  Federal Records Act (that's a law not a rule) and trying to keep State Department officials from knowing it means  she was violating both department rules and committing a crime. And keeping it a secret could rise to the level of obstruction of justice. 

Her public statements that she both had approval and it was known in the State Department were both lies. Her staff knew. That was it.  Her public lying could also be used to show Clinton engaged in a cover up to keep her use of a private email server secret.

That she conspired with others to do that is also a crime and there is evidence she did -- with both her Deputy Chief of Staff Jake Sullivan and Bryan Pagliano the IT professional who set up her email server and who, on advice of counsel, pled the 5th amendment both in front of a House committee and the FBI. The FBI granted him immunity. And he's talked.

Though admittedly speculation it is logical and informed speculation to consider that if Pagliano and his lawyer believe that he committed at least one crime and possibly more following Clinton's instructions in setting up her email server and possibly conspiring to cover it up,  its not illogical to think there is a good possibility that Clinton did too. And that could be just the beginning.

According to the OIG report two lower Clinton staffers at the State Department testified to the Inspector General that they expressed concerns about her use of the private home email server to a superior on Clinton's staff, another indication that it was common knowledge that Clinton's private server was at least a violation of rules and possibly against the law.  

The report states that  when the staffers expressed that concern they were told to "never discuss or bring up the Secretary's private email server again".

While a lawyer could claim that was not an attempt to obstruct, muzzle or conceal Clinton's private server from authorities by instructing staff never to talk about it but that he simply meant there were more important things to deal with, the FBI and their lawyers are probably at this moment deciding if that is enough to get a conviction against that staffer and Clinton on obstruction, conspiracy to obstruct and obstructing a government agency from the lawful administration of its duties. As well as conspiracy to violate the Federal Records Act. 

One thing for certain. If the FBI does recommend an indictment its going to be big and involve a whole bunch of things, not some nickel and dime spitting on the sidewalk violation.

Clinton's repeated public statements that the server had been approved when she, Sullivan her Deputy Chief of Staff and others knew it hadn't gives further weight to Clinton's state of mind knowing that she was violating at least State Department regulations and possibly the law, knowing it was unauthorized but being arrogant enough to think she could circumvent laws and regulations and decided she was going to use it anyway.

Those issues alone  if corroborated could be enough to indict her. But there is a lot more.
Having not gotten approval for the private server there is no doubt that  legally every email sent to her server violated the statute that makes unauthorized removal of a government document to an unauthorized location a crime. The higher the classification of document the bigger the crime. It can be argued that every communication from a .gov address to Clinton dealing with government business violated that statue.

And by not getting approval and the OIG report stating clearly Clinton would not have gotten it, it not only buttresses the legal argument that any and all State Department emails sent to her  server broke the law but legally as soon Clinton opted to use  her private unauthorized server as a government server to conduct government business, it technically and legally became the property of the government not Clinton's.

What that also means is that the 33,000 emails that Clinton destroyed from her server may also be a crime. Especially since those very emails had been under subpoena. 

That server had become government property and Clinton had no authority to destroy or delete anything.It would have been left to a third party to go through all her emails, probably the Inspector General, and decide what was government business and what wasn't what she could keep and do with as she pleased and what she couldn't.  Which would have meant that her private emails would be seen by someone she didn't want to see them. So she destroyed them. 

How much of a crime was it and how much did it reveal about Clinton and her state of mind? She destroyed those 33,000 emails while they were under subpoena. Which could also land her in hot water for destruction of evidence. And she did it thinking she could sell the idea that everyone would accept her word for what was personal and what was government related.

By taking it upon herself to destroy those 33,000 emails she may have broken a number of laws including the unauthorized destruction of government records.And with it more of the laws of unintended consequences.

As for the email server itself as a violation of unauthorized removal of government documents to an unauthorized location remember that former general and CENTCOM commander then CIA Director David Patraeus was charged with the same violation after an FBI investigation proved he had taken documents home from CIA headquarters and had them on his home computer where they were seen by a woman he was having an affair with.

Patraeus pled guilty to unauthorized removal of classified government documents to an unauthorized location, lost his job and is on probation.

Clinton is guilty of the unauthorized removal of approximately 55,000 government documents to an unauthorized location and the FBI has been investigating how many of those might have been classified.  To date the number is 22. However even unclassified documents may be covered by statute which Clinton violated just not as serious as classified.They certainly violated State Department rules. 

It is part of the governments case against Snowden for espionage that he is guilty of unauthorized removal of classified government documents. The big difference is that Clinton didn't turn documents over to anyone and Snowden did. But there are those who say that if those documents were highly classified, aspects of the Espionage Act would apply.

There is already evidence of how fast and loose with the truth Clinton has been regarding her server to the extent of outright lying. But there might be something even more serious surrounding her penchant for lies and half truths.

Half truths could be at the heart of the 22  emails marked "classified" that were on her server.

Clinton's defense has been they were not classified at the time she got them and were only marked "classified" later. (which would be no defense regarding the other charges stemming from having the private server and unauthorized removal of government documents in the first place).

But there is some evidence though not complete or corroborated that Clinton tried to circumvent the problem of getting classified material on her server on some ocassions.

Knowing that some of the information Clinton needed to see was classified and showing a knowledge that her email server was not authorized to receive classified documents, there is some informed speculation based on knowledge, that Clinton may have had  a staff member remove the "classified" designation from documents she needed to see, had it sent via email as a document with no "classified" heading,  then after it was received, had the "classified" heading replaced on the document.
That would allow Clinton to claim the document wasn't classified when she received it and was marked classified only later,  after she received it which is what she claims.

But if Clinton did have the "classified" designation temporarily removed, that would be extremely serious and constitute multiple felonies. It would not only be a illegal for her to have received a classified document on her server,but it would also involve Clinton and a staffer altering and defacing a classified document as well as removing it. It would put Clinton in the most serious legal jeopardy imaginable.

The FBI investigation is a criminal investigation into when why,and  how the 22 classified  documents had been on Clinton's server.Like all criminal investigations where leads and evidence are followed it can branch out into different directions. The fact that  those documents were there at all is a crime. Since it's not up to Clinton to decide what is classified and what isn't having the server at all and having those documents in a place they were not authorized to be is an example of the laws of unintended consequences affecting Clinton. Saying the documents were not classified at the time would be no defense. It's not up to Clinton what gets classified or when.

Any hacker who obtained the documents later marked "classified" would have classified documents because Clinton was using an illegal unsecured server. Clinton's knowledge of whether the documents were classified at the time she got them would be irrelevant. She had no legal right or basis for having them on her server to begin with.

One thing is clear: all the other witnesses  on the FBI witness list have been interviewed except one. Clinton.  If the FBI had nothing on Clinton and no reason to continue to investigate they would have called her for an interview more than a month ago and been done with it.They haven't.

That Clinton broke a number of State Department regulations is irrefutable and Clinton voters and supporters including former Secretary of State Madeline Albright, obviously don't care. And don't seem to care if she committed crimes or not, was lying or not was deceptive or not, broke laws or not. 

The FBI does, and so may voters. And delegates at the convention.

If the FBI does in fact have enough evidence to  show what Clinton did rises to the level of criminal violations they must decide that soon. It means a decision as to whether to change Clinton's status from a witness to a "target" of the investigation.

By law, if they change her status to "target" they must notify her and her attorney before she is called. That gives her the legal right to refuse to be interviewed. 

 If the FBI had nothing to implicate Clinton it's likely Clinton would have been interviewed by now and the matter closed.  So there is enough for them to keep going. And keep Clinton waiting. Which is not to say that alone means an indictment is coming. But its clear the FBI has enough to review and weigh.

If the FBI does have evidence against Clinton, serious enough to warrant recommending an indictment by naming her as a "target", there is no doubt the FBI and Jim Comey understand the consequences . That means in all probability they will not wait for the Democratic convention to start on July 25th before making a decision. Its inconceivable the FBI would have enough evidence to charge her and allow her name to be put in nomination at the convention and then name her as a target later which would throw the entire political process into chaos.

That's why its a little better than 50-50 she will be indicted. Based on what the FBI must have from Pagliano and the indications and inferences that can be drawn from the OIG report, if  it were anyone else they probably would have been indicted by now. But the consequences of a presidential campaign and nominating convention coming up given that Clinton is the front runner for the Democratic nomination (yes front runner despite the fraud she, the DNC and the news media tried to commit claiming she had clinched anything)  the consequences of an indictment goes beyond Clinton.  There are no do overs. So the FBI knows they need to dot all their "i"'s and cross their "t"'s. And be sure.

Its useful supposition to consider there was a sense of urgency among Clinton, her supporters, the DNC and super delegates to see what they could do to head off an FBI announcement making her a target.  Or make it more difficult. Super delegates were clearly given marching orders to call the AP  and say they would vote for Clinton which were used by a colluding AP and a Simon Says New York Times in promoting the fiction that she "clinched" to try and intimidate the FBI by claiming she was already the nominee and it's too late  to indict her.

It's not too late. And James Comey is as straight an arrow as they come. He won't be intimidated. And Attorney General Lynch is on the record as saying if the FBI recommends an indictment the DOJ will indict.

There are legal experts among them former  U.S. Attorneys making the rounds of some TV news shows who make it better than 50-50 she will be indicted. Some say its 60-40. And that's based on information that is public and their knowledge of federal statutes without knowing what the FBI has or their witness statements.So its not about Clinton lying. Lying repeatedly in public is not a crime. If it were Clinton would be wearing an ankle bracelet by now.

Joe DiGenova, a Republican but also a former U.S. Attorney has gone a step further and said in an interview that Clinton's indictment is virtually certain, citing many of the same points mentioned here. But he added one more thing that for Clinton would be chilling if true. As a former U.S. attorney Di Genova has contacts inside the FBI. And DiGenova said the evidence of Clinton's having committed crimes is so great, and that people have been prosecuted for less, he claimed that if  the FBI recommends indictments to the DOJ, and there are no indictments of Clinton there will be a "revolt of Watergate style proportions" by FBI agents who had been assigned to the case. Meaning they would walk out in protest.

If what DiGenova says is true, then its not better than 50-50 Clinton will be indicted, its a certainty. Which might be one more reason Bernie Sanders has not made a single gesture towards endorsing Clinton, supporting Clinton, ending his campaign or giving any indication he is no longer a candidate for the presidential nomination. If anything all his words say the opposite.

 DiGenova thinks indictments would come before November. But it wont take an indictment to force Clinton to drop out. The FBI recommending an indictment would be enough.

But one thing is certain. If the FBI is going to do something it doesnt make sense they would wait till November and throw the political landscape into utter chaos. It makes no sense that if they decide to recommend an indictment they wouldnt do it before July 25th the date the Democratic National Convention opens. If nothing happens by then, Clinton might be home free. But the fact still remains she has not been called as a witness in the investigation as the last witness to be called. And the longer that goes the worse it looks for Clinton.


OTE admin said...


Anonymous said...

Excellent Breakdown, but some of the other high crimes are all the pay to play with the foundation. This is classic public servant corruption but involving hundreds of millions of dollars. Will you discuss these in another article please?

Marc Rubin said...

but some of the other high crimes are all the pay to play with the foundation. This is classic public servant corruption but involving hundreds of millions of dollars. Will you discuss these in another article please?

The allegations of favoritism played by Clinton as Secretary of State to entities that made large contributions to the Clinton Foundation are more ethical than criminal as long as the money received by the Foundation wasn't misused. Unfortunately Bernie Sanders didnt make more of an issue of Clinton's ethics during the primary campaign especially her refusal to release her Wall Street transcripts which she knew would probably end her candidacy and reveal more issues with the Foundation since Goldman Sachs,for whom she made a number of speeches also made large donations to the Clinton Foundation.One thing was obvious: she did not want those speech transcripts made public, proof there was a lot to hide.

Alessandro Machi said...
This comment has been removed by the author.
Alessandro Machi said...

You fail to get to the heart of the issue. How does a Secretary of State learn anything outside of the box? If everything they do is supposed to be digitally copied for review by others, which basically usurps their entire position.
So when Sanders blasts Hillary Clinton for being an "Insider", you brainlessly agree. But when Hillary Clinton attempts to have some outside of Washington communication, she suddenly is a criminal.
I would suggest the FBI should try themselves for letting a person who was on their watch list buy guns, hold the guns for a week, and then kill 49 people.
Perhaps if th e FBI wasn't wasting time on non issues and dealing with real issues, 49 people would be alive today.
Perhaps if you Benghazi nut jobs focused on the 22 veteran suicides that occur EVERY FUCKING DAY in the U.S., there would be a THOUSAND MORE VETS alive today.
May your Clinton Derangement Syndrome give you many years of aimless antics. How did the Denver Group go, you whack job. I bet you violated laws with your posturing as a Clinton supporter back in 2008 and accepting money from people to allegedly post commercials.
Have you learned the difference between 12% and 9%, you blooming idiot, or do you still thin its 3%. lol.

Anonymous said...

I see Commenter Alessandro Machi is back again with his tirade of 6th-grade name calling. It would be refreshing to read the differences of opinions discussed here, if they just once, had the smallest degree of intelligence and sanity infused. It's difficult to clearly see another fellow's point of view as rational with all the chest pounding.

Anonymous said...

Without agreeing or disagreeing with the FBI's decision not to prosecute, it's hard not to note that you are wrong again. Maybe time to rethink the whole analyst thing. You are constantly incorrect in your assessments...