John Sexton touched on this story last night, but I wanted to add a few other thoughts. It deals with the the USA Today opinion piece from Justice Department veteran Ronald J. Sievert published this week. In it, Sievert breaks down the actual charges we need to be talking about and the disservice the media does us by ignoring them. While John sees it as a warning that Hillary Clinton might get little more than a slap on the wrist from a recalcitrant Justice Department, I think there’s a bit more to be uncovered here.
Keep in mind that immunity is being handed out now to some of the drones who circle in the outer orbits of Clinton World, the State Department has suspended their own internal investigation into Hillary’s private server in favor of the FBI and Huma Abedin is suffering from night terrors. This still doesn’t incontrovertibly prove that anything is going to happen, but on the assumption that something does manage to come of it, what sort of charges would Hillary Clinton actually be facing? That’s the question which the media has largely ignored, as Sievert points out, instead choosing to focus on her widely discredited claim of having done nothing wrong and being lashed over something which was little more than a failure in document housekeeping. So let’s look at the charges.
The applicable statute, 18 USC 793, however, does not even once mention the word “classified.” The focus is on “information respecting the national defense” that potentially “could be used to the injury of the United States or to the advantage of any foreign nation.” 793 (f) specifically makes it a crime for anyone “entrusted with … any document … or information relating to the national defense … through gross negligence (to permit) the same to be removed from its proper place of custody.” A jury (not a Democrat or Republican political administration) is, of course, the best body to determine gross negligence on the facts of this case.
The courts have held repeatedly that “national defense information” includes closely held military, foreign policy and intelligence information and that evidence that the information is classified is not necessary for a prosecution. Evidence that the information was upon later review found to be classified, however, as is the case with approximately 2,000 Clinton messages, is of course one kind of proof that the information met the test of “national defense information” in the first place.
The author does an admirable job of breaking all of this legalese down into layman’s terms and it doesn’t paint a pretty picture for Clinton. The law itself seems to be clear on one point: no matter how many times the former Secretary of State crows about the documents not being “marked classified” while residing on her private server, those markings are not only not central to the case, but they aren’t even mentioned in the law. This all comes back to the entire “born classified” theory of intelligence control. Even if she were somehow unaware that maps of North Korean nuclear sites should have been considered sensitive, that doesn’t change the fundamental nature of the documents and the danger they could pose to US interests if they were exposed. (It does, however, say something about Clinton’s fitness for even that office, to say nothing of her qualifications to be leader of the free world.)
So what’s the penalty which we should have been discussing all this time for those in violation of 18 USC 793? Let’s take a look. (Emphasis added)
Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—
Shall be fined under this title or imprisoned not more than ten years, or both.
Still, even with all of this data in evidence, the author isn’t confident that Clinton will be prosecuted, nor would she be even under a Republican administration. This ties into John’s take on it, but why? In the author’s view, it’s not just a matter of protecting party loyalists or cronyism (though those clearly will play a role) but rather a culture in the Department of Justice which makes them averse to tackling tough or politically controversial cases.
Spending 25 years as an attorney and supervisor in U.S. Attorney’s offices and working with Main Justice in Washington provides an understanding of the process. Main Justice has not always had a reputation for being strong and aggressive, especially in the face of an intimidating defense. What a DA will indict in a week, and a U.S. Attorney in a month, will take Justice more than a year if they ever pull the trigger at all. They tend to be hamstrung by endless memos, briefs, meetings and approvals from multiple levels and divisions. There sometimes appears to be an institutional fear of losing, however minimal the chance.
What Sievert is describing is the corrupting influence of office politics and job security, rather than the larger game of thrones which will influence the decision as to whether or not to serve Hillary Clinton with papers. Even those not looking to defeat Republicans as a hobby might be loathe to “pull the trigger” as he puts it. They simply don’t want to deal with the consequences of possibly losing the case and what might happen to their careers after the fact when their intended target is suddenly in charge of the entire government. As the old Emerson saying (paraphrased) goes, when you strike at a queen, you must kill her. You’re only going to get one shot at it and there will be hell to pay if you miss.