Hillary Clinton still could be, should be, indicted

UPDATE: Loretta Lynch says the Justice Department is ending its investigation and will not prosecute Hillary Clinton

Even after FBI Director James Comey said he would not recommend the indictment of Hillary Clinton for her extremely reckless handling of classified material, that doesn’t have to be, nor possibly should it be the last word.

As many have pointed out, the decision whether to proceed with criminal charges against Clinton rests with U.S. Attorney General Loretta Lynch. The fact that she has taken herself out of the game by saying in advance that should would accept the FBI’s recommendation, doesn’t mean she has lost the power to decide or can’t change her mind.

Changing her mind at this point of course would be politically explosive, but statutorily she still has that power. And if she valued her integrity, she would exercise that power. And, evaluate Comey’s rationale for not recommending the indictment of Clinton

A wrong decision

She would find that Comey’s standard for not recommending an indictment is flawed, in theory and in practice. He said that he could not find evidence that Clinton had intended to make public or distribute classified material. Nor was there evidence that any possible disclosure was widespread. Or that she meant to harm the United States. She and the State Department could only be accused bungling on an astonishing scale, which is not illegal.

That explanation falls apart when the law is more closely examined. Ill intent is not required for Clinton’s actions to rise to the level of a criminal offense. The law says “gross negligence” is sufficient cause and Comey’s calling her actions “extremely reckless” is legally defined as “gross negligence.” By that standard, Clinton is subject to indictment.

Further, the Justice Department has pursued at least one indictment and conviction against someone who had no intention of disclosing classified information. As the Navy Times reported,  A Naval reservist bled guilty and was sentenced last year for mishandling classified military materials.

An FBI search of [the defendant’s] home turned up classified materials, but did not reveal evidence he intended to distribute them. He was sentenced to two years of probation and a $7,500 fine, and was ordered to surrender his security clearance. He is barred from seeking a future security clearance.

He apparently had taken home the classified material in line with his work, which was more convenient. He returned them when his assignment ended. And Hillary Clinton’s excuse for her egregious and illegal actions was that it was more “convenient” for her to have her private server handle all of her emails.

That the powerful Clinton has been exonerated for behaving more egregiously than this reservist only fortifies the belief that there is a different law for the Clintons than for the rest of us. It also will ultimately help increase Donald Trump’s support.

A theory

I have a theory–only a theory–why Comey wrote an excuse note for Clinton: He took a bullet for the country. He might have believed that a recommendation for an indictment would have set the stage for  an unprecedented, extraordinary and perhaps devastating disruption of the ultimate exercise of our democratic process–the election of a president. It would have been a misguided, but idealistic, reason. He was willing to get targeted by his colleagues, politicians and commentators, to stop a bureaucracy–his–from interfering with the electoral process.

Like I said, it’s only a theory. But one that might explain his willingness to take the course that he did.

But, Loretta Lynch can fix this. And she should. She is the chief law enforcement officer of the country. Her office traditionally and rightly so is supposed to be elevated above politics. When Congress calls Comey to appear before it to explain his reasons for his action, Congress also and more urgently must call Lynch to explain why she has abandoned her own responsibility.

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  • I have Secret Security Clearance from the government because of a job I worked at a year ago. This employer performs random checks of security processes. The findings are published to employees as a warning. A warning, because people lose their jobs as a result of their findings.

    Had I behaved as Ms Clinton has, I would have lost my job. I know this because others have lost their job. But for Ms Clinton, she will obtain the highest job in the nation, in spite of her behavior.

  • AG Lynch will not "fix" this. She is part of the scheme. In fact, in an interview with the NYT's , before the FBI Director's presser, Hillary is quoted last paragraph as saying that she is seriously thinking of keeping AG Lynch on in her term.

    That AG Lynch has any integrity of her own is a non-starater.

    That HIllary will continue to run roughshod over the lad and perhaps have a more blatent disrgard of the Constitution than Obama is a real threat, not that anyone with a "D" or even most people with an "R" after their names care.

  • Dennis, now you are trying to ball together three phrases, suggesting they are all the same: "extremely reckless"(your term), "extremely careless" (used by Comey) and "gross negligence" (the words of 793(f).

    As for the Naval Reservist, he entered a plea to a quite different misdemeanor, 18 USC Sec. 1924: "Unauthorized removal and retention of classified documents or material (a) Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both."

    It doesn't look like Hillary Clinton's acts met this criminal definition either.

  • In reply to jnorto:

    18 U.S. Code § 793 - Gathering, transmitting or losing defense information:

    (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.

  • In reply to Dennis Byrne:

    Amen. We have a crook that redefines the word "crook" running for office. The Clinton Foundation should be investigated next but that will be found to be above approach also. Sick administration.

  • In reply to Dennis Byrne:

    Yes, Dennis, now that you have found the statute we have been talking about all along, explain to us what the Department of Justice and the courts have said the words "gross negligence" mean.

  • In reply to jnorto:

    Gross Negligence
    An indifference to, and a blatant violation of, a legal duty with respect to the rights of others.
    Gross negligence is a conscious and voluntary disregard of the need to use reasonable care, which is likely to cause foreseeable grave injury or harm to persons, property, or both. It is conduct that is extreme when compared with ordinary Negligence, which is a mere failure to exercise reasonable care. Ordinary negligence and gross negligence differ in degree of inattention, while both differ from willful and wanton conduct, which is conduct that is reasonably considered to cause injury. This distinction is important, since contributory negligence—a lack of care by the plaintiff that combines with the defendant's conduct to cause the plaintiff's injury and completely bar his or her action—is not a defense to willful and wanton conduct but is a defense to gross negligence. In addition, a finding of willful and wanton misconduct usually supports a recovery of Punitive Damages, whereas gross negligence does not.
    West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

    For some caselaw, see: https://www.judiciary.state.nj.us/civil/charges/5.12.pdf

  • In reply to Dennis Byrne:

    New Jersey tort law? What about Federal criminal law?

  • In reply to Dennis Byrne:

    Probably the best discussion of the Department of Justice interpretation of "gross negligence" under this statute was given by James Comey in his testimony before the House committee today. An extended transcript may become available.

  • She is more guilty than sin. They couldn't find "intent"?
    Criminals don't write down their intent but it is clear by how she lied about her involvement, hid evidence, erased evidence. The analysis of intent was totally erroneous. The person concealed records.
    This is intent. Can't believe the farce we have for a justice department. Any prosecutor could convict on this one! What a travesty of justice. Hopefully, this isn't going away soon. No good prosecutor would "not" have brought this case. The American people are not stupid. .

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    Just her destruction of official documents, her schedules, is enough to show intent...she has decided what we need to know and that was not her job

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