Hillary Clinton

How a FOIA Request into Hillary Clinton's Emails Revealed a Criminal Investigation

Clinton had characterized the FBI's investigation as "routine," but the DOJ now refers to it as a "law enforcement proceeding."

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Hillary Clinton
Wikipedia

Last weekend, Hillary Clinton dispatched her husband, former President Bill Clinton, to offer a defense of her alleged espionage. The espionage allegations against her are that in order to escape public and Obama administration scrutiny, she had all of her emails as secretary of state diverted from a secure government server to a non-secure server in her home in Chappaqua, New York, and, in so doing, failed to protect state secrets in at least 2,200 instances during her four-year tenure.

The essence of her husband's defense is that the secrets were not secrets when she saw them and the investigation of her is all "a game."

We know that the FBI is getting closer to Hillary Clinton, because Bill Clinton had not addressed her email issues publicly before last weekend. The defense he offered belies the facts and the law.

He argued that prosecuting his wife over her emails is akin to prosecuting someone for driving a car in a 50 mile-per-hour zone at 40 mph because the police have arbitrarily and without notice changed the speed limit to 35 mph.

The implication in his argument is that Mrs. Clinton's emails were retroactively classified as confidential, secret or top-secret after she received or sent them and therefore she had no notice of their sensitivity.

His argument is unavailing for two reasons. The first is that it is untrue. Emails are confidential, secret or top-secret at the time they are created, whether marked or not.

The second reason is that Mrs. Clinton signed an oath on her first full day as secretary of state — after she received a two-hour tutorial from two FBI agents on the proper care and lawful handling of state secrets. In that oath, she acknowledged that she had an obligation to recognize and protect state secrets on the basis of the sensitive nature of the information contained in them — whether they bore classified warnings or markings or not.

State secrets are materials that, if revealed, could harm the national security of the United States.

Bill Clinton's speed zone example, if true, would be a profound violation of due process, the foundation of which is notice. In a free society, for a prosecution to be successful, the government must show that the defendant had notice of the behavior expected of her. Hence, changing the speed limit without notice would be a profound violation of due process and fatal to a prosecution for speeding.

His example is not even remotely analogous to Mrs. Clinton's behavior while secretary of state.

Why did he address this last Saturday?

He probably did so for two reasons. The first is that people in Hillary Clinton's inner circle from her time as secretary of state have been offered interviews by the FBI. They all hired the same lawyer, and with that lawyer, they are in the process of answering FBI questions. Bill Clinton — for whom the FBI once worked — knows that the investigation will soon be at his wife's doorstep, and he wanted to get her version out to Democratic primary voters.

The second reason for Mr. Clinton's broadside relates to an obscure but profound admission by the Department of Justice (DOJ). Here is the back story.

One of the 39 Freedom of Information Act (FOIA) lawsuits brought in connection with Mrs. Clinton's email scandal was filed recently by Jason Leopold, a reporter for Vice News. He seeks copies of the emails Clinton tried unsuccessfully to wipe clean from her server, as well as copies of communications between the DOJ and Mrs. Clinton.

The DOJ moved to dismiss his lawsuit, and in support of its motion, it filed a secret affidavit with the court, signed by an FBI agent familiar with the bureau's investigation of Mrs. Clinton. In its brief filed the day before Mr. Clinton made his silly speeding prosecution analogy, the DOJ — which also once worked for him — characterized the secret affidavit as a summary of the investigation of Mrs. Clinton. The DOJ argued that compliance with Leopold's FOIA request would jeopardize that investigation by exposing parts of it prematurely.

In the same brief, the DOJ referred to the investigation of Mrs. Clinton as a law enforcement proceeding.

That was the first public acknowledgment by the DOJ that it is investigating criminal behavior — a law enforcement proceeding — and it directly contradicts Mrs. Clinton's oft-repeated assertions that the FBI investigation is merely a routine review of the State Department's classification procedures.

Many in the legal and intelligence communities have discounted her assertions because reviewing classification procedures of the State Department is not a function of the FBI, but now we have the government's own words that its investigation of Mrs. Clinton's email handling is one implicating law enforcement. Since that late Friday filing, Mrs. Clinton has ceased referring publicly to the FBI probe as an evaluation of the State Department's security procedures.

Perhaps she should tell her husband what was on that server before she tries to use him as a not-so-secret weapon.

Perhaps she now recognizes how hard-pressed she will be to claim to the FBI or to a jury that she did not know that satellite photos of a North Korean nuclear facility or transcripts from wiretaps of Yemeni intelligence agents' cellphone calls or the itinerary of the late U.S. Ambassador to Libya Chris Stevens in the days before his murder or true names of American undercover intelligence agents — all of which were in her emails — were state secrets.

Perhaps she knows now that this is not a game.

COPYRIGHT 2016 ANDREW P. NAPOLITANO | DISTRIBUTED BY CREATORS.COM

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61 responses to “How a FOIA Request into Hillary Clinton's Emails Revealed a Criminal Investigation

  1. I have acquired the Schist of Etiquette. Tremble, Fist.

    1. These masturbation euphemisms are getting pretty abstract.

  2. You’re living in a world devoid from reality if you believe what politicians are SAYING instead of finding out what they’re really DOING; wh.gov/i7czl

    1. Your world is also devoid of reality if you seriously think that modifying the law retroactively, and applying that modification to a criminal defendant, is always a “profound violation of due process.” We nabbed America’s leading criminal Troll and “satirist,” for example, by changing New York’s criminal impersonation law to require an intent to “damage reputations” and by applying that new requirement to this criminal perpetrator, even though the jury was not presented with the issue of whether he intended to “damage reputations.” Six out of seven judges agreed this was appropriate, over the foolish “First Amendment dissent” of a single, isolated member of the New York’s highest court. This sort of modification happens all the time, and the author’s suggestion that there is something wrong with it is not only morally dubious, but unrealistic. See the documentation at:

      http://raphaelgolbtrial.wordpress.com/

  3. Take the classified info out of the picture and this is still outrageous. Between the privacy act info certainly in her emails and FOUO content as well, she deliberately circumvented protection required for ALL info passing through her email.
    Hell, I can’t put a thumb drive in my work machine without the IT people swarming the office within 5 mins. I can’t let my one year “Information Assurance” training lapse by one day without being locked out of the network for days. I can’t send a document with a social security number in it to a non-govt email address without the sniffers flagging it and forcing me to do hours of paperwork to ‘assess the risk’. …this bitch just picked up the whole thing and dropped it in her basement because FYTW. I hope they throw the book at her on behalf of all us govt nobodies who apparently live by a different set of rules.

    1. You’re absolutely right. Anyone else would be in Leavenworth already. The true test of our justice system will be if she ever serves time (or is at least indicted.) She needs to be in prison, like anyone else would be for doing what she did.

      1. She won’t even be indicted. The ony people capable of holding her accountable have no interest in doing so.

        1. ^^This.

    2. Meh. We don’t have paperwork if the e-mail bounces on the SSN rule because everyone knows the system is too stupid to tell the difference between a serial with nine numerics and an SSN. It just bounces the mail.

      1. What all of this reveals more than anything else is that a) different agencies have different rules based upon what are nominally the same laws with the same requirements and b) department heads and other political appointees are not held to the same standards as civil servants. The ultimate result of this is going to be greater mistrust between agencies, as well as between the civil service and its political leadership.

        It is darkly ironic that many of the people who will vociferously defend Clinton are the very same who accused Bush of intentionally “breaking” the government.

        1. And the same people who freaked out (or pretended to) about Valerie Plame.

  4. So if the DOJ refuses to prosecute and medium and high ranking FBI people resign in protest does it mean all legal channels have been exhausted? Does it then depend on whether Trump or Hillary wins? Obviously IANAL.

    1. I believe that Hillary is a moral and fair woman. If elected, she will
      make sure that this is followed through on and that justice prevails.

      1. The DOJ can do whatever it wants and there are no checks on it? In theory or reality?

      2. Depending on a person’s own conscience to keep their behavior in check worked wonders with Stalin.

        1. Individual consciences work fine for regulating the behavior of people. Not so much for politicians.

          1. Yeah, there needs to be a qualifier in there about what I said pertaining to people in positions of power over others.

          2. Lots of people confuse people with politicians. It’s only natural because politicians look like people and even talk like people.

            However, politicians have no conscience. If they are to be successful politicians, they cannot afford to have a conscience because politicians run the apparatus of the state. Obviously, one cannot have a conscience if one has authority to lie, cheat, defraud, snoop, steal, kidnap, imprison, and murder to accomplish the ends of the state, and is expected to do so as a matter of course.

      3. “Pirate Voice” Har, har, har.”+1 parrot saying “Keelhaul the bitch”.

  5. Will this be the first time a felon acted as President BEFORE the election?

  6. I will continue my streak of being spectacularly wrong in predicting human behavior following the Trump nomination win by opining that absolutely nothing will come of this.

    The Clintons are far too powerful and have far to much support throughout the halls of power for anything of this nature to stick. It is to wonky, too technical and too easy to trivialize. It isn’t even going to be charged. There is no way any prosecutor is hanging his hat on this case. It would be career suicide. His only avenue after the case would be to go into politics as a republican in a deep R area, or go into talk radio. Both are longshots, and you have to be pretty decent at political calculations to have reached a level in the US Attorney’s Office where they’d trust you with this decision.

    No, if Scooter Libby can get prosecuted for making false statements in an investigation that was already concluded before he was even interviewed but Hillary cannot even be questioned for withholding her billing records until after the statute of limitations had run out, they aren’t getting her over a conspiracy to avoid the FOIA.

    1. absolutely nothing will come of this

      It is unlikely that she will prosecuted or otherwise official sanctioned.

      However, the damage has already been done, and if she returns to a position of power, especially the Presidency, it is only going to get worse. Further balkanization of government agencies will not lead to good places.

    2. Obama is a bitter and vindictive dick. The Clintons dragged him through the mud and said some pretty shitty things about him. The Democrats hate the guy too. So his last act in office will be pushing this through to spite both the Clintons and the Democrats.

      If the case is solid and Hillary doesn’t get indicted, there will be a riot in Washington like none other. She could be the first president impeached and removed from office within the first few months of her term. It will also end real shitty for the Democrats as Republicans and other refer to Hillary as the US version of Kim Jong-un or any of your favorite world dictators. This shit will loom over her head for the rest of her life, and she won’t be able to shake that like the Clinton’s haven’t been able to dodge the whole Monica Lewinski thing.

      Either way, she’s fucked.

      1. We got an optimist here!

      2. Obama will pardon her

      3. No way either party is going to want to be responsible for the impeachment, conviction, and removal of the first woman president of the US. Just no way. Even if she were a man, she would not get removed. We have had two presidential impeachment proceedings in our country’s history. Notice that neither time was anyone convicted and removed from office. It would be too dangerous, because it would set a precedent, and neither party wants that.

    3. Clinton also has the FBI files on all her enemies. They know that they are at risk if they make a feeble attempt at justice.

  7. I’m still sticking to my story that she will be charged, or the FBI will at least publicly recommend an indictment. Too many laws have been broken to sweep it under the rug and there are too many career agents that will leak everything if they recommend and the DOJ tells them to pound sand.

    And too many people are forgetting that cops are the most vindictive people imaginable. And you can’t tell me Comey isn’t carrying a bit of a grudge for Hillary and the fact that she got away with some serious crimes with the Rose Law Firm billing scandal…a case which he was the lead investigator on.

    1. I agree. The suspense is — as Trump would say — “incredible”.

      1. The suspense is YUGE!

    2. I’m with sloop on this one. If the DOJ wanted this buried, they never would’ve given an immunity offer to Bryan Pagliano, her server guy. AFAIK, though I don’t work for DOJ and I’m not a lawyer, you need a senior DOJ attorney like the AUSA or USA for a region, to sign off on an immunity offer to a subject within an investigation. The FBI or other law enforcement agencies can’t issue such an offer and make it stick; it has to be one of those attorneys.

      So someone at DOJ is interested in letting this investigation continue.

      I still think that Obama has more interest in making sure that Hil never gets the Oval Office, than he does in helping her out. Were I Obama, I’d never feel safe, knowing that someone as vindictive and evil as Hillary had that kind of power over me, regardless of whatever blackmail material he and his Administration have on her. (And vice versa.) Much better to instead have someone else—even Trump—take the seat. At least Trump probably won’t investigate Obama for corruption or try and do something more nefarious towards Obama. Could you can say the same for Hillary?

      Even leaving that aside, if Obama were to want a Democrat victory, wouldn’t it be better to find a better candidate than Hillary (or Sanders)? The woman has gigantic negatives. Why not indict after the Convention, tell her that she gets a Ford-esque pardon post November and that she gets to keep her Clinton Foundation $$$, and let the DNC pick someone like Biden or Warren?

      1. Hmmm … Trump would be a plus for Obama’s legacy.

        When the wheel come off the so-called Obama Recovery, he can sit back and blame Trump.

        Sure, Obama could blame Hillary, but it wouldn’t have the same “credibility”.

        1. Hmmm … Trump would be a plus for Obama’s legacy.

          When the wheel come off the so-called Obama Recovery, he can sit back and blame Trump.

          Especially if you think, as I do, that Trump is going to do very little to roll back any of Obama’s legislation. He may “tinker” with it, or try to “make it great”, but I don’t see him actually trying to get rid of PPACA. And even if he did try to get rid of it, I’ve said for awhile now that Trump’s Presidency is going to look an awful lot like Schwarzenegger’s rather than Reagan’s: make a lot of reform noises, try to push through some easy legislation, get shut down by the bureaucracy and its friends in the Leg (here Congress), and bitch about life for the remainder of his term. I predict that, even if Trump wins the Presidency, his fans are going to be awfully disappointed with what Trump will be able to achieve.

          I don’t think Obama really cares that heavily about his legacy for its own sake, other than what it says about him as a President. I think he’s ready to hit the course, the lecture circuit, and enjoy a lifetime of leisure and privilege. For that, he needs a caretaker who won’t try to unravel the crooked shit he did in the office, and who won’t spend the next four years blaming him for being a worthless lazy fuckstick. Biden seems to fill those requirements a lot better than Clinton, with fewer of her negatives. Normally, people would bitch at removing a candidate, but post indictment…?

  8. Perhaps she knows now that this is not a game.

    Well, it depends on whether this Sword of Damocles is a “game”.

    1. *Snip*

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  10. I just want an indictment on this. An indictment means that the government functions enough to investigate a crime an bring charges against an extremely politically connected person, that nobody is above the law.

    A conviction is out of the question, but just having formal charges filed would be enough for me to have my faith in the process restored.

  11. Burn the witch!

  12. Exterminate the brutes!

  13. The only way I can see Obama allowing the DOJ to pursue a case against Hillary is if, heading into the election, polls are showing Trump winning in a landslide. In that case, I could imagine Obama saying “Screw it, take her down.” Because she wouldn’t be in a position to uphold his legacy, and thus would be of no use to him. And prosecuting Hillary would probably end the Clintons’ hold on the Democratic Party. Obama would assume the role of undisputed party leader and could play kingmaker in the 2020 election.

    None of that sounds very likely. But like everyone else, I was wrong about Trump’s prospects of winning the nomination, so I won’t assume it can’t happen.

  14. She won’t be indicted. This is a banana republic of some laws for some people. A shot of integrity into the system would likely damage the carcass further

  15. The essence of her husband’s defense is that the secrets were not secrets when she saw them

    In other words, she’s too fucking stupid to recognize sensitive information when she sees it and too incompetent an administrator to keep her department from carelessly handling sensitive information. But any voter who has a problem with that is a sexist!

    Yeah, Bill. That’s a great argument. You’ve won me over!

  16. Getting Bubba to vouch for her? She really must be grasping at straws.

    Though I’m still pessimistic and think she will won’t be charged for her crimes.

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  18. I love it when lawyers pretend they don’t understand the law and make money doing so. As Andrew Napolitano well knows, “law enforcement proceeding” is not the same thing as “criminal investigation” and the response to the FOIA request isn’t illuminating in any way. I am positive the FBI considers the investigation into a security referral a “law enforcement proceeding” that is qualifies for that FOIA exemption.

  19. God. Nothing will come of this; “Judge” Napolitano is merely fanning the flames to earn his keep.

    Nobody in the DoJ would risk their career over a case like this. Nothing is clear-cut; nothing can be pointed to as definitely intentional or even grossly negligent. Were there technical violations of law? I’m willing to say “most likely”. Good luck presenting such a technical case before a jury and then winning the appeals up to SCOTUS.

    1. It’s not grossly negligent to have every single email the SoS receives on an unsecured server? Think again.

  20. Good for a laugh: 2011 Hillary on Internet Security: http://www.bizpacreview.com/20…..ked-242393

    1. Do as she says, not as she does.

  21. Good lord, the judge is unhealthily obsessed with Hillary’s emails. Now, I’m no fan of Hillary, but this is ridiculous.

  22. Good lord, the judge is unhealthily obsessed with Hillary’s emails. Now, I’m no fan of Hillary, but this is ridiculous.

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  24. It’s nice that we have a judge to remind us it’s “innocent until investigated.” Is there a specific law she’s suspected of breaking? If so, why wasn’t it mentioned? Of course, we all know that secrets aren’t really protected unless they’re certified as protected by government IT (ignore the fact that there’s no evidence she was hacked, there’s enormous incentive whoever did it to prove it if she was, and that the government has suffered repeated leaks, including State Department internal communications, that had nothing to do with this). But leave it to libertarians to remind us all that no law is too small to enforce, no matter how vague (or unwritten), or how much you need to squint to confirm a technical violation. Even though it’s still legal for officials to use private e-mail servers (they just have to transfer data over within 20 days of leaving office, though that requirement was passed after she left), and other officials (like the Director of the CIA – nothing classified over there) have had their personal e-mail hacked (AOL!), and had at least highly confidential information leaked (personal details on hundreds of CIA employees, including Social Security numbers). It’s no surprise that people think this is more about Hillary than the e-mails themselves (or Benghazi – if we’re still pretending that’s what this is all about).

    And what is the FBI waiting for? How many hundreds of people need how many months to make a decision, with all the info they have?

    1. Because most people aren’t familiar with the law and its specifications. But since you asked. 18 USC 793 (f) for gross negligence in allowing unauthorized persons access to defense information. Specifically the 2100 classified emails on her server, and the employees of Platte River Networks who managed her server. Note that the law talks about “defense information” not classified, so the arguments on when things were classified are irrelevant for this charge. Plate River Networks has admitted in televised interviews that they did not have government contracts or government security clearances, and therefore could not be authorized access. Then there is 18 USC 1924 for putting classified materials in an unprotected server not authorized for classified use. This one does require the determination that the emails (or some part of them) were classified at birth. The prosecutor will likely only introduce the 50+ TS/SCI and TS/SAP documents that have not been publicly released as evidence. Judge N talks about satellite photos of North Korea and wiretaps of Yemeni terrorists as examples. Both topics would be classified at birth and easy to prove as classified. Then there is 50 USC 421 the protection of intelligence officers identities act, since the judge cites the real names of spies as a topic in emails. Obstruction of Justice is also likely, and finally RICO prosecution for pay to play is possible, but only the FBI knows the specifics at this point.

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  26. That we have a potential open and shut case of espionage and most think it will not result in prosecution shows a flaw in founding fathers creation. I don’t think they imagined how corrupt the system they created could become. The problem with making anything idiot proof is they keep making bigger idiots. I think the same thing applies to our Constitution and coruptocrats.

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