It is easy to be cynical, indeed it is prudent, to assume that there will be no indictment against Hillary Clinton. It might also be wrong. Andrew Napolitano, who unlike many analyst-pundits is an attorney, keeps making the case that legally, HRC is in deep manure. From Napolitano at antiwar.com:
President Barack Obama’s recent remarks to my Fox News colleague Chris Wallace about Hillary Clinton’s email issues were either Machiavellian or dumb. It is difficult to tell from them whether he wants the mountain of evidence of her criminal behavior presented to a federal grand jury or he wants her to succeed him in the White House.
He cannot have both.
His efforts to minimize his former secretary of state’s diversion of emails from government-secured servers to her own non-secure home server by calling it “careless” may actually harm her in the eyes of the public or even serve as a dog whistle to the FBI. That’s because carelessness is a species of negligence, and espionage, which is the failure to safeguard state secrets by removing them from their proper place of custody, is the rare federal crime that can be proved by negligence – to be precise, gross negligence.
Gross negligence is the failure to perform a high legal duty with the great probability of an improper result – for example, driving a car 90 miles per hour in New York’s Times Square. The high legal duty Clinton had was to safeguard state secrets; the improper result is the exposure of those secrets contained in her emails.
What did she do that was criminal, and who was harmed by her behavior?
Clinton knowingly diverted all of her governmental emails from secure government servers to her own non-secure server in her New York residence. Among the 60,000 emails she diverted were 2,200 that contained state secrets. Because the essence of espionage is the removal of secrets to non-secure venues, the crime is complete upon removal. So Obama’s statement in the Wallace interview that Clinton caused no harm is irrelevant. In espionage cases, the government need not prove that the defendant caused any harm.
Obama’s further effort in the Wallace interview to minimize the classification of secrets into the statutory categories of “confidential,” “secret” and “top secret” by snarkily commenting that “there’s classified and then there’s classified” is not what one would expect from someone who has sworn to take care that all federal laws are enforced.
Obama has interpreted that duty so as to permit his Department of Justice to prosecute for espionage both a sailor when he took a selfie inside a nuclear submarine and sent it to his girlfriend and a Marine lieutenant who correctly warned his superiors about an al-Qaida operative masquerading as an Afghan cop in an American encampment but mistakenly used his Gmail account to send the emergency warning.
The evidence of Clinton’s failure to safeguard state secrets is overwhelming because of the regularity of its occurrence. The evidence is well-grounded, as some of the secrets were too grave for the FBI to review and all came from her own server. And the evidence is sufficient to indict and to convict because it was obtained legally and shows a four-year pattern of regular, consistent, systematic violation of the laws requiring safeguarding.
Obama’s suggestion that some secrets were not really secret is also irrelevant, because Clinton, like the president, swore to recognize secrets and to keep them secret, no matter her opinion of them.
To continue reading: Obama Damns Hillary With Faint Praise
