The investigation into The Saga of the Secret Server took a couple of interesting turns yesterday evening. Many critics of the slow response from the Department of Justice to Hillary Clinton’s exclusive use of an unauthorized and unsecured secret server have wondered why the Obama administration seemed much more interested in prosecuting former CIA Director and Iraq War genius David Petraeus for a less-impactful exposure. The Washington Post’s Carol Leonnig, Karen Tumulty, and Rosalind Helderman noted at the bottom of their late-afternoon roundup that the pressure may be picking up after all:
The investigation is being overseen by two veteran prosecutors in the Justice Department’s National Security Division. One of them helped manage the prosecution of David H. Petraeus, the retired general and former CIA director who was sentenced to probation earlier this year after pleading guilty to a misdemeanor charge of mishandling classified materials. He was also fined $100,000.
The Post also noted that Hillary’s initial public declarations on this have turned out to be “false,” in their terminology:
The FBI’s interest in Clinton’s e-mail system arose after the intelligence community’s inspector general referred the issue to the Justice Department on July 6. Intelligence officials have expressed concern that some sensitive information was not in the government’s possession and that Clinton’s unusual e-mail system could have “compromised” secrets.
That investigation, still preliminary, is focusing on how to contain any damage from classified information that might have been put at risk. Officials have said that Clinton is not a target. But, according to legal experts, this type of security review can turn into a criminal investigation if there is evidence that someone intentionally mishandled government secrets. …
The issues around Clinton’s e-mails have also intensified as it has become clear that a number of her statements defending her actions now appear to be false.
Actually, 18 USC 793 does not require an intent to mishandle classified material. Paragraph (f)(1) only requires “gross negligence” that results in unauthorized transfer or relocation of sensitive material, with 10 years of prison possible for each count, and it doesn’t have to be classified for it to count. Also, 18 USC 1924 makes it a crime to be in unauthorized possession of classified material. If the server contained classified material while it was in Hillary’s physical possession at an unauthorized location (her house in Chappaqua), then it violates this law. Plus, Hillary was no longer authorized for access to that kind of information after leaving office even in a secure facility; she no longer had a “need to know.” Petraeus was charged under 1924, by the way, as was Sandy Berger, John Deutsch, and others who eventually plea-bargained for misdemeanors.
USA Today notes a few more cases that demonstrate a double standard if Hillary’s allowed to skate on this scandal:
Low-level diplomats who do so much as leave a document of low classification on a guarded embassy desk, Van Buren says, risk demerits that jeopardize future job prospects.
“I cannot conceive any other person in government being able to do what she did without being punished,” he says. “Lots of people have lost their clearances, lost their jobs and in some cases lost their freedom and gone to jail” for allegedly being careless in protecting classified documents. …
Mishandling classified documents often is alleged when authorities seek to punish embarrassing leaks to the press, but also appears in lesser-known cases, such as the prosecution of Arabic translator James Hitselberger, who was fired and criminally charged for printing two classified documents and attempting to leave a Bahrain naval base. He pleaded guilty to mishandling documents last year.
Hitselberger admitted to unauthorized removal and retention of classified documents to spare himself a potentially lengthy prison sentence, maintaining he was innocent of purposeful wrongdoing. He offered an explanation similar to Clinton’s justification for using a person email server: convenience. He wanted to read them at home.
“When a Master Sergeant who was standing nearby told Mr. Hitselberger that he needed the computer and Mr. Hitselberger would have to sign off, Mr. Hitselberger decided to read the documents in his living quarters,” his attorneys wrote in court documents after his guilty plea. “He then – in full view of the Master Sergeant and with other military personnel in the surrounding area – printed the documents, put them in his backpack and walked out of the secured area. For doing so, he already has been severely punished, and no additional punishment is necessary.”
Hitselberger was stopped a short distance from the printer and two documents were taken from him. His public defender who brokered the plea deal, Mary Petras, did not respond to a request for comment on how the case compares to the Clinton email controversy.
The FBI probe is concentrating on two tracks, according to the New York Times’ Michael Schmidt and David Sanger. The first is how the classified material ended up in an unauthorized and unsecured system, and the other is an assessment of whether the material ended up in hostile hands:
F.B.I. agents investigating Hillary Rodham Clinton’s private email server are seeking to determine who at the State Department passed highly classified information from secure networks to Mrs. Clinton’s personal account, according to law enforcement and diplomatic officials and others briefed on the investigation.
To track how the information flowed, agents will try to gain access to the email accounts of many State Department officials who worked there while Mrs. Clinton was secretary of state, the officials said. State Department employees apparently circulated the emails on unclassified systems in 2009 and 2011, and some were ultimately forwarded to Mrs. Clinton.
They were not marked as classified, the State Department has said, and it is unclear whether its employees knew the origin of the information.
The F.B.I. is also trying to determine whether foreign powers, especially China or Russia, gained access to Mrs. Clinton’s private server, although at this point, any security breaches are speculation.
Everyone assumes the answer to the second question is yes, but proving it becomes important if any prosecution takes place. That would almost certainly require felony charges and significant prison time to the person who converted the highly classified material into unmarked e-mails on an unauthorized system, under 18 USC 793. Absent a finding of exposure to hostile eyes, a plea bargain for a misdemeanor might still be possible.
That presumes a prosecutor would bring charges, but the publicity of this investigation would require it with those kind of findings. The question would be which patsy takes the fall: Huma Abedin, Cheryl Mills, Philip Reines, or some other aide de camp — unless Hillary transmitted the data herself. And there are more than 30,000 e-mails in the State Department trove still to review.
Will we see a double standard applied that lets Hillary off the hook? Michael Ramirez offers an excellent commentary on the double standard being adopted by the still-credulous media when it comes to Hillary’s excuses:
Also, be sure to check out Ramirez’ terrific collection of his works: Everyone Has the Right to My Opinion, which covers the entire breadth of Ramirez’ career, and it gives fascinating look at political history. Read my review here, and watch my interviews with Ramirez here and here. And don’t forget to check out the entire Investors.com site, which has now incorporated all of the former IBD Editorials, while individual investors still exist.