Friday, July 8, 2016

I Called It! James Comey Lets Clinton Off Hook

I have some thoughts and analysis regarding FBI Director James Comey letting Hillary Clinton go with little more than a harsh scolding as punishment. People have been saying that Comey changed the rules in order to get Clinton off the hook. They're saying that he used a different standard of justice than he would have used on anybody else. Some are even saying that this conservative Republican is somehow in league with Hillary. Boy, do I have a scathing rebuke of that nonsense! But first, I have to take a bow for predicting the outcome correctly, and being the master analyst that only a few fortunate souls who read my blog know myself to be. Fuck modesty, this one's mine! Check this out:

In the end, the official FBI conclusion will likely be that Hillary did not divulge State secrets, but will also give her a severe reprimand. The State department has already effectively done this. She deserves it, and she knows it, which is why she’s issued her apology for it, and not just because she was caught. It stings her, and well it should.

But against Trump, it shouldn’t cost her any votes.

The FBI will most likely exonerate her as well, unless there really was something she leaked which was clearly and unambiguously classified. That's a whole separate issue, but for now, the FBI will say she did not commit any serious breeches of information. I suspect, however, that the FBI will also seriously chastise her. That would be a blow, but if the FBI clears her, she'll gladly endure it.

Emails? Yeah, not so much, either. Unless an off-account email is found which is a clear breach of national security, I don't see much of a problem. 

Over a year in advance, and I got it exactly right! Who is the master of prediction? THIS guy! Who has clarity of perspective on political issues? ME!

And who should you listen to next time? Yep. That's right.

Okay, so now that I'm the undisputed guru, here's my take on Comey. The best breakdown of what accusers are saying regarding Comey's announcement comes to me from my Bernie-supporting friends on the Left who have been posting an article from National Review.

Let me say that again. My friends on the Left, posting from National Review. National fucking Review!

Yeah, it's gotten that crazy.

You can read the article for yourself here. But the gist of it is this, that the FBI redefined the law in order to allow Hillary to get off scot-free. At the heart of the matter is Title 18, Section 793(f) of the penal code. In fact, in one of my Facebook defenses of Hillary, someone actually pasted that statute into his reply, as if he'd somehow made a point. But for the sake of being thorough, and because I want to be as open as possible, here is the statute itself:

(f) 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.

One can then juxtapose this with the statement delivered by James Comey on July 5th. Now, you can read the whole thing here, but I'll just drop the summary here that's been re-played all over the news media over the last two days:

"Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past."

Now, critics point out, "intent?" Since when? Intent is not in that section of the law!

No, but he listed first "strength of evidence." Intent was secondary.

For the anti-Hillary crowd, whether they be Republicans of Bernie die-hards, the answer is clear. She broke the law. But did she? Let's break this down.

A person is in violation of the law if such a person:
1) Through gross negligence permits classified data to be removed/delivered:
  • from proper place of custody
  • to anyone in violation of trust
  • to be lost, stolen, abstracted or destroyed
2) Having knowledge of #1 above, fails to make prompt report to the superior officer (in this case, the president).

Let's start with the first one. Through "gross negligence." (For Hillary-haters, all her negligence is gross negligence, no matter what. But let's try not to look through rose-colored lenses and see what the real level of negligence was.) Was there "gross negligence" in this case?

James Comey says no. His exact words:

"Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information."

And cue the critics again. "Extremely careless = gross negligence!" 

Clearly, since Comey did not recommend bringing any charges, he disagrees. Is this splitting hairs? Certainly. But maybe not so much. What Comey is saying is that it is negligence, just not gross negligence. Even Hillary called it a mistake. But ultimately, the information stayed within the inner circle of the government. What leaked? Nothing. Again quoting Comey:

"Although there is evidence of potential violations of the statutes regarding the handling of classified information..."

Potential violations. Any actual violations? Nope. None found. And Comey is a smart enough legal mind to know that sort of thing is not enough to bring about a successful prosecution. Does that mean Hillary is innocent? No. But it does mean there isn't enough evidence to go to trial.

"...our judgment is that no reasonable prosecutor would bring such a case."

In other words, to quote the old maxim, "No harm, no foul." Or, in this case, no proven harm, so no provable foul.

So much for that. Next bullet-point item:

"From proper place of custody," is the next requirement. A separate email server was not illegal at the time Hillary set one up. But it was against State department guidelines and regulations. So, that means, as I've said on multiple occasions, that she broke rules, but not laws. Her e-mail server was, at the time, a proper place of custody.

"But that placed government information at higher risk!" a critic might say. "What about that hacker, Guccifer, who allegedly broke in?!"

Guccifer was what hackers call a "muggle." That is, a hacker who isn't really much of a hacker, and brags about stuff he didn't do. James Comey said in his July 5th press conference:

"With respect to potential computer intrusion by hostile actors, we did not find direct evidence that Secretary Clinton’s personal e-mail domain, in its various configurations since 2009, was successfully hacked."

Later, in his deposition to Congress on July 7, Comey was directly asked by Texas Republican Blake Farenthold whether Guccifer successfully hacked into Hillary's email server.

"No, he did not," Comey testified. "He admitted that was a lie." (The FBI had interviewed 'Guccifer' during its investigations.)

"At least that's good to hear," Farenthold replied.

Bullshit. News that Guccifer had actually hacked Hillary's server would have been the best news Republicans have had since Obama won.

By the way, you may have heard a rumor that Guccifer was found dead in his jail cell. Not true. You can read about that, here.

Yes, having a private server puts the information at greater risk than using the government's server. (Remember that every time some conservative hack wants you to believe that all government-run systems are inferior.) But while it's harder for a hacker to break into a government computer system than a private server, they are both pretty tough to crack. It's analogous to locking secured documents in a locked file cabinet instead of a safe. Is the safe harder to crack open than a file cabinet? Sure! But the documents were still locked away. They were not just free for the taking!

"To anyone in violation of trust," is the next bulleted item. Did Hillary send classified documents to any unauthorized personnel? Here the answer is clear - she did not. And this is why her wrongdoing is not nearly as egregious as that of General David Portrayus, who knowingly placed classified documents into the hands of his mistress, a non-government employed journalist. Hillary's messages may have been received at, and then sent from, a private server, but they went from authorized personnel to authorized personnel.

At his testimony before Congress on July 7, Comey did, however testify that Hillary had given access to her classified emails to non-authorized personnel in the form of her lawyers. But due to attorney-client privilege, that is impossible to prosecute. Her lawyers are legally bound not to share confidential information pertaining to their client, and so the information is still secure.

"To be lost, stolen, abstracted or destroyed," is the last bulleted point. And here, Comey has something interesting to say:

"I should add...that we found no evidence that any of the additional work-related e-mails were intentionally deleted in an effort to conceal them."

He went on to describe how some emails were deleted and found outside of the 30,000 emails she had handed over to the FBI, but then described how exactly that came about, and demonstrated that such stray emails were not proof of intentional destruction of classified material. It's an interesting read, and I encourage all to read Comey's transcript rather than merely watching the highlights from the 6:00 news.

One further point bears attention. Comey pointed out that Hillary's claim that no documents marked as classified were received from, or sent to, her private server. That claim turned out to be wrong.

"From the group of 30,000 e-mails returned to the State Department, 110 e-mails in 52 e-mail chains have been determined by the owning agency to contain classified information at the time they were sent or received. Eight of those chains contained information that was Top Secret at the time they were sent; 36 chains contained Secret information at the time; and eight contained Confidential information, which is the lowest level of classification."

And yes, they were marked as such. But not clearly. More on that, below.

So did Hillary lie? Perhaps. But it's equally plausible that she just made a mistake. Not all classified documents are marked as classified, as James Comey himself said. And while he also said that government officials should know what is classified whether it is marked or not, it bears consideration just how many emails are dealt with on a daily basis. Think of the emails you have in your place of work alone. Never mind spam, mailing lists and numerous clutter items. Now imagine what a Secretary of State has to deal with.

It's a wonder classified information is kept bottled up at all, private servers or not!

So that's it for the bullet points. The second part of the statute doesn't apply, because Hillary would have to have been knowingly putting classified documents in unauthorized hands in order for her reporting to her superior officer (Barack Obama, in this case) to be necessary.

James Comey pointed all this out in his July 7 testimony before Congress. In fact, much of what I argue here is what he argued there. So, in a way, I am simply re-stating what he did, only better. (Yeah, this is me being not-so-humble again.) No transcript of his testimony yet exists, but there is a YouTube video of nearly the entire testimony. You can watch it here. One of the things he points out is that some information marked as classified was done so in an ambiguous way. For example, items marked with a simple capital letter "C" were classified, but Hillary might not have known about that.

Yes, he's saying the Secretary of State, of all people, might not have known that particular detail. 
Is Comey calling Hillary stupid? Maybe. 
Is he admitting under oath that some classified materials might not be clearly and unambiguously marked as such? Yes!

*Shudder!* That, my friends, may be the most frightening revelation of this entire affair! That classified material may be floating around, unmarked?! Shit!

So, just to recap:
  • Was Hillary careless? Yep
  • Was she "grossly negligent?" No. Just negligent.
  • Did she make classified documents less secure than they should have been? Yes.
  • Does that constitute an actual breech of classified information? No.
  • Did she destroy classified documents? It appears not.
  • Was her server hacked? Not by Guccifer. But by someone else? Unlikely, but can't rule it out.
  • Does she deserve to be raked across the goads for all this? Absolutely. And she both is and will be.
  • Was she held to a different, lower standard than others because of her position? No. Hell, no! In fact, she is held to a higher standard because of her position, and will continually be punished for it. Rightly so. Even now, Republicans are threatening impeachment proceedings after she's elected (which even they can see is inevitable). That may make Elizabeth Warren our president, however. (Goody!)
  • Does she deserve a prosecution? No.
  • Did she lie? Maybe. But good luck proving it!
  • Did she ultimately break any laws? Close, but no fucking cigar.
So, in short, I was right then, and I daresay I am right now. Hillary made one, little brain-fart because she wanted the convenience (and control, I expect) of having her own private server. She had precedent from Secretaries of State before, and so she felt entitled. But for this one, little misstep, which in retrospect seems so bad, but at the time seemed so innocent, she has been punished, and punished, and punished. Eventually, we'll have to realize that she's been through the meat-grinder enough times to be seasoned and cured.

Why not now, I ask? When it should all be over and Bernie is poised to endorse her?

Even if she's guilty as sin, I argue that she's learned her lesson many, many, many times over. So there.

Repeatedly, I find that when Hillary gets off regarding some charge or other, the reaction is to assume that whomever got her off the hook is to blame, rather than to consider the possibility that maybe Hillary is not as guilty as assumed.
  • Hillary beats the Select Committee on Benghazi - the Republican controlled committee must be on Hillary's take.
  • Hillary gets endorsed by Elizabeth Warren - obviously Warren is a traitor.
  • Hillary gets off the hook with the email scandal from the Director of the FBI - the conservative Republican must be working with Hillary.
  • Eric Hildeman defends Hillary on his blog - oh, then he must be a puppet.

In other words, where Hillary is involved, it's guilty until proven innocent, and still guilty even after that!

Maybe, just maybe, the problem is people having the default setting that Hillary is bad? Maybe?

When Obama came under continuous attack, I gave him a nickname: Our Trophy President. Today, it's time I gave Hillary a nickname. And I've sometimes called her "'Ol' Ironsides," but I'd rather give her a nickname that reflects her more cosmopolitan, non-Dixie side.

Today, I label Hillary as "Lady Titanium." She's indestructible!



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