"Malicious intent" is not required to break the law in Hillary Clinton's case

There’s a new trend in the mainstream media’s ongoing efforts to defend Hillary Clinton over her email scandal and you should be keeping your eyes open for more of it in the future. When the question first came up, most liberal outlets went through the usual stages of denial and accommodation. Initially it was all just some story cooked up by the Vast Right Wing Conspiracy. Then, when the private bathroom server turned out to be a reality which could no longer be denied, the story was that it was simply personal information or routine business with her staff, along with Chelsea’s wedding and baby shower plans which were none of our business. We all saw how the story morphed from that point on until it was painfully obvious that there had been Top Secret material left lying around on the server outside the control of the government.

So what’s the new approach to ensure that none of this could possibly indicate anything negative about the presumptive Democratic nominee? Well… even if she shouldn’t have done it, there clearly wasn’t any “malicious intent” on her part, as per the Washington Post. (Emphasis added)

Officials: Scant evidence that Clinton had malicious intent in handling of emails

Prosecutors and FBI agents investigating Hillary Clinton’s use of a personal email server have so far found scant evidence that the leading Democratic presidential candidate intended to break classification rules, though they are still probing the case aggressively with an eye on interviewing Clinton herself, according to U.S. officials familiar with the matter…

he involvement of the U.S. Attorney’s Office is not indicative that charges are imminent or even likely. One official said prosecutors are wrestling with the question of whether Clinton intended to violate the rules, and so far, the evidence seemed to indicate she did not.

Those are the leading descriptors in a piece which includes other information indicating that Clinton is facing serious jeopardy and it’s likely to be the ongoing theme from those seeking to make this story go away. Even if the laws were broken and intelligence data was either compromised or exposed to potential hacking, there’s really nothing to see here because, you guys… she didn’t mean for it to happen.

Unfortunately for Ms. Clinton and her apologists, her allegedly harmless intentions have nothing to so with it. We previously discussed the actual charges which Clinton could face, and intent doesn’t factor into the law. Here’s a brief reminder.

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.

So even if Hillary Clinton never “intended” for sensitive information to be exposed, keeping it outside of the normal storage and safeguards of the government is more than sufficient for a case to be prosecuted. But the fundamental premise of saying there was no malicious intent is still dishonest in and of itself. Whether she cared for it or not, Secretary Clinton was aware that there was a State Department email system in place and available for her use. When your employer provides such a communication system for the employees it requires an active decision on the part of the employee to go out and hire people to set up a completely independent server in their home and keep it’s contents away from the prying eyes of the public. If she had restricted her use of that server to nothing but personal correspondence with friends and family it would still have raised some eyebrows but I believe she’d get a pass on the entire malicious intent question, but that’s not even remotely what happened. She was intentionally doing public business on her private server and it doesn’t require a psychic to figure out why. She didn’t want the public or the press to know about it or have any traceable records.

Still, as I referenced above, that’s not the question at hand. The lack of intent line is just a red herring. Prosecution under 18 USC 793 only requires that the information wind up being outside of its proper place of custody. You can argue the intent angle all the live long day but it doesn’t change the fact that the law clearly appears to have been broken. Whether the Justice Department (under the thumb of one of Clinton’s biggest campaign surrogates) decides to do anything about it is another question.