Hey kids, what time is it?* According to former Attorney General Michael Mukasey, it’s time for Loretta Lynch and the Department of Justice to do their jobs and charge Hillary Clinton with mishandling classified information — at the least. Nodding to the expansion of the FBI’s probe into areas of corruption, Mukasey argued in Friday’s Wall Street Journal that the 1300-plus pieces of evidence already on hand more than justifies initial charges — and cites David Petraeus as a precedent:
No criminality can be charged against Mrs. Clinton in connection with any of this absent proof that she had what the law regards as a guilty state of mind—a standard that may differ from one statute to another, depending on what criminal act is charged.
Yet—from her direction that classification rules be disregarded, to the presence on her personal email server of information at the highest level of classification, to her repeated falsehoods of a sort that juries are told every day may be treated as evidence of guilty knowledge—it is nearly impossible to draw any conclusion other than that she knew enough to support a conviction at the least for mishandling classified information.
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.
Actually, under 18 USC 793, prosecutors don’t necessarily need to show a “guilty state of mind” (or mens rea) for a conviction, or even show that information had previously been classified. It would be easier to get a conviction if they could show both, but nothing in this statute requires information to have been classified — only that its exposure would do damage to national security. Subsection (f) only requires “gross negligence,” not malice of purpose. Mukasey more than makes a case for gross negligence in the second paragraph of the excerpt.
But prior to this excerpt, Mukasey’s already made a pretty good case for mens rea, or at least eliminated the argument that Grandma Clinton thought comms security involved wiping things with cloths:
Further, Mrs. Clinton’s own memoir, “Hard Choices” (2014), apparently written at a time when she wished to stress how delicate were the secrets she knew, and how carefully she handled them, reports that she “often received warnings from Department security officials to leave our [BlackBerrys], laptops—anything that communicated with the outside world—on the plane with their batteries removed to prevent foreign intelligence services from compromising them.
“Even in friendly settings we conducted business under strict security precautions, taking care where and how we read secret material and used our technology,” Mrs. Clinton tells readers. She even read classified material “inside an opaque tent in a hotel room. In less well-equipped settings, we were told to improvise by reading sensitive material with a blanket over our head.”
Try to square this with the 1,300-plus transmissions of classified information through an unsecured, home-brew server. The same woman who bragged about her adept compliance with classified access under unusual circumstances also forced her aides to send information based on Top Secret/Compartmented programs through an e-mail server located at one time in a bathroom in an unsecured and unauthorized location. Note too that Mukasey and the WSJ published this before news broke that the Inspector General informed Congress that at least one e-mail involved extremely sensitive human intelligence classified at the SCI/HCS level — information that conceivably get intelligence sources killed if exposed. Hillary knew full well about the need to secure this information, but she wanted to evade legitimate Congressional oversight more than she wanted to comply with the law. And that is a case for criminal intent, even if prosecutors don’t actually have to make one.
The question isn’t just why charges haven’t already been filed against Hillary Clinton. It’s also why no charges have been filed with the expanding universe of people who were aware of this system and yet did nothing to alert authorities to its use, people such as Stephen Mull, who warned Huma Abedin of the issue in 2011. There are a number of legitimate targets for prosecution. And it’s time that the Department of Justice began lining them up.