As Hillary Clinton begins her final charge for the White House, her advisers are already recommending air strikes and other new military measures against the Assad regime in Syria.
The clear signals of Clinton’s readiness to go to war appears to be aimed at influencing the course of the war in Syria as well as U.S. policy over the remaining six months of the Obama administration. (She also may be hoping to corral the votes of Republican neoconservatives concerned about Donald Trump’s “America First” foreign policy.)
Last month, the think tank run by Michele Flournoy, the former Defense Department official considered to be most likely to be Clinton’s choice to be Secretary of Defense, explicitly called for “limited military strikes” against the Assad regime.
And earlier this month Leon Panetta, former Defense Secretary and CIA Director, who has been advising candidate Clinton, declared in an interview that the next president would have to increase the number of Special Forces and carry out air strikes to help “moderate” groups against President Bashal al-Assad. (When Panetta gave a belligerent speech at the Democratic National Convention on Wednesday night, he was interrupted by chants from the delegates on the floor of “no more war!”
Flournoy co-founded the Center for New American Security (CNAS) in 2007 to promote support for U.S. war policies in Iraq and Afghanistan, and then became Under Secretary of Defense for Policy in the Obama administration in 2009.
Flournoy left her Pentagon position in 2012 and returned to CNAS as Chief Executive Officer. She has been described by ultimate insider journalist David Ignatius of the Washington Post, as being on a “short, short list” for the job Secretary of Defense in a Clinton administration.
Last month, CNAS published a report of a “Study Group” on military policy in Syria on the eve of the organization’s annual conference. Ostensibly focused on how to defeat the Islamic State, the report recommends new U.S. military actions against the Assad regime.
Flournoy chaired the task force, along with CNAS president Richard Fontaine, and publicly embraced its main policy recommendation in remarks at the conference.
She called for “using limited military coercion” to help support the forces seeking to force President Assad from power, in part by creating a “no bombing” zone over those areas in which the opposition groups backed by the United States could operate safely.
In an interview with Defense One, Flournoy described the no-bomb zone as saying to the Russian and Syrian governments, “If you bomb the folks we support, we will retaliate using standoff means to destroy [Russian] proxy forces, or, in this case, Syrian assets.” That would “stop the bombing of certain civilian populations,” Flournoy said.
In a letter to the editor of Defense One, Flournoy denied having advocated “putting U.S. combat troops on the ground to take territory from Assad’s forces or remove Assad from power,” which she said the title and content of the article had suggested.
But she confirmed that she had argued that “the U.S. should under some circumstances consider using limited military coercion – primarily trikes using standoff weapons – to retaliate against Syrian military targets” for attacks on civilian or opposition groups “and to set more favorable conditions on the ground for a negotiated political settlement.”
Renaming a ‘No-Fly’ Zone
The proposal for a “no bombing zone” has clearly replaced the “no fly zone,” which Clinton has repeatedly supported in the past as the slogan to cover a much broader U.S. military role in Syria.
Panetta served as Defense Secretary and CIA Director in the Obama administration when Clinton was Secretary of State, and was Clinton’s ally on Syria policy. On July 17, he gave an interview to CBS News in which he called for steps that partly complemented and partly paralleled the recommendations in the CNAS paper.
“I think the likelihood is that the next president is gonna have to consider adding additional special forces on the ground,” Panetta said, “to try to assist those moderate forces that are taking on ISIS and that are taking on Assad’s forces.”
Panetta was deliberately conflating two different issues in supporting more U.S. Special Forces in Syria. The existing military mission for those forces is to support the anti-ISIS forces made up overwhelmingly of the Kurdish YPG and a few opposition groups.
Neither the Kurds nor the opposition groups the Special Forces are supporting are fighting against the Assad regime. What Panetta presented as a need only for additional personnel is in fact a completely new U.S. mission for Special Forces of putting military pressure on the Assad regime.
He also called for increasing “strikes” in order to “put increasing pressure on ISIS but also on Assad.” That wording, which jibes with the Flournoy-CNAS recommendation, again conflates two entirely different strategic programs as a single program.
The Panetta ploys in confusing two separate policy issues reflects the reality that the majority of the American public strongly supports doing more militarily to defeat ISIS but has been opposed to U.S. war against the government in Syria.
A poll taken last spring showed 57 percent in favor of a more aggressive U.S. military force against ISIS. The last time public opinion was surveyed on the issue of war against the Assad regime, however, was in September 2013, just as Congress was about to vote on authorizing such a strike.
At that time, 55 percent to 77 percent of those surveyed opposed the use of military force against the Syrian regime, depending on whether Congress voted to authorize such a strike or to oppose it.
Shaping the Debate
It is highly unusual, if not unprecedented, for figures known to be close to a presidential candidate to make public recommendations for new and broader war abroad. The fact that such explicit plans for military strikes against the Assad regime were aired so openly soon after Clinton had clinched the Democratic nomination suggests that Clinton had encouraged Flournoy and Panetta to do so.
The rationale for doing so is evidently not to strengthen her public support at home but to shape the policy decisions made by the Obama administration and the coalition of external supporters of the armed opposition to Assad.
Obama’s refusal to threaten to use military force on behalf of the anti-Assad forces or to step up military assistance to them has provoked a series of leaks to the news media by unnamed officials – primarily from the Defense Department – criticizing Obama’s willingness to cooperate with Russia in seeking a Syrian ceasefire and political settlement as “naïve.”
The news of Clinton’s advisers calling openly for military measures signals to those critics in the administration to continue to push for a more aggressive policy on the premise that she will do just that as president.
Even more important to Clinton and close associates, however, is the hope of encouraging Turkey, Saudi Arabia and Qatar, which have been supporting the armed opposition to Assad, to persist in and even intensify their efforts in the face of the prospect of U.S.-Russian cooperation in Syria.
Even before the recommendations were revealed, specialists on Syria in Washington think tanks were already observing signs that Saudi and Qatari policymakers were waiting for the Obama administration to end in the hope that Clinton would be elected and take a more activist role in the war against Assad.
The new Prime Minister of Turkey, Binali Yildirim, however, made a statement on July 13 suggesting that Turkish President Recep Yayyip Erdogan may be considering a deal with Russia and the Assad regime at the expense of both Syrian Kurds and the anti-Assad opposition.
That certainly would have alarmed Clinton’s advisers, and four days later, Panetta made his comments on network television about what “the next president” would have to do in Syria.
Owen Jones – one time darling of the liberal Left, is now, officially, endorsing Hillary Clinton.
True, they changed the headline shortly after publication. It originally read “The Sanders movement is bigger than Bernie. Now it must work with Hillary” But someone snuck in with the scissors and paste and now the headline reads “The Sanders movement is bigger than Bernie. Now it must defeat Trump”.
But even if this might make Jones and his supporters feel a tad less queasy, it changes nothing. No matter how many sophisms and evasions are employed to try and make it seem he’s still standing by his principles even while he’s openly flouting all of them, Jones, who last year was defending Corbyn, is now endorsing Hillary “I will obliterate Iran” Clinton,
But you see Owen wants us to understand that Clinton isn’t Trump. And being not-Trump is always better than being Trump. So, even though Clinton also isn’t progressive, or honest, or sane, and even though she has no interest in helping the disadvantaged or rebuilding social infrastructure, and even though she conducted state business on a private email server so no one would be able to tell what nefarious and illegal, and potentially insanely dangerous things she was doing, and even though she presided over the Honduras debacle, and even though she authorised and gloated over the illegal murder of a foreign head of state, and even though she has threatened to “obliterate” Iran and take the confrontations with Russia and China to new heights that really might result in WW3, we absolutely have to get behind her because – hello – she isn’t Trump. And anyhow if we get her to be POTUS and make sure there are lots of lovely Democrats in Congress, maybe we can ask them to please do some of the socialist things Bernie talked about. They will probably say yes, of course And anyhow, Owen’s not sure if he mentioned this but Hillary isn’t Trump…
Yes, this is what passes for political analysis when the neolibs are slipping you wads of cash to endorse the unendorsable, the discredited and the morally broken.
The likes of Jones are paid to surrender their dignity and ethics and pretend this macabre farce is something called “democracy”, and to sell the decaying relics offered up for candidacy as if they were real choices. That doesn’t mean we have to pretend to believe them. If I were a US citizen I’d take the only truly free choice left and decline to play this game of fake reality any longer. And if we all did that, the game would be over, wouldn’t it.
corbettreport – July 25, 2016
TRANSCRIPT AND SOURCES: https://www.corbettreport.com/?p=19281
Hillary Rodham Clinton is a Wall Street-backed warmonger whose potential election as President of the United States this November poses an existential threat not just to Americans but to all of humanity.
Sanders didn’t just fall from grace. He crashed, burned and resoundingly proved politicians can never be trusted.
Nothing they say is credible. For months, supporters believed he was the anti-Clinton, campaigning against what she represents – an agenda of endless wars of aggression, world peace at risk, neoliberal harshness, police state terror, the worst of all possible worlds.
She’s the most recklessly dangerous choice for president in US history, the most wicked, the most legally, ethically and morally challenged.
In mid-July, Sanders sold out, betrayed his loyal supporters, proved himself just another self-serving dirty politician by endorsing Clinton, embarrassing himself in the process.
On day one of the Democrat War Party convention, he again made a spectacle of himself before a nationwide audience – assuming the role of Clinton puppet, relegating himself to irrelevance.
He touted a “political revolution” the whole world knows is fake. His populist rhetoric resoundingly rang hollow. Who can believe anything a Judas says, a despicable scoundrel selling out to wealth and power while continuing the charade of supporting populism over privilege.
Bush/Obama policies created a protracted Main Street Depression. Half of US households are impoverished or bordering it. Workers need two or more rotten jobs to survive if they can find them.
America resembles Guatemala, not the home of the free and the brave, beautiful for its privileged class alone, a classic example of thirdworldism.
Sanders lied claiming “(w)e have come a long way in the last 7 1/2 years, and I thank President Obama and Vice President Biden for their leadership in pulling us out of that terrible recession.”
What a shameless misrepresentation of harsh reality! He put his thumb in the eyes of tens of millions of suffering Americans – one missed paycheck away from homelessness, hunger and despair.
He praised Obama instead of condemning him, duplicitously claiming Clinton supports a progressive agenda, a scandalous perversion of truth.
The rest of his remarks included similar mumbo jumbo rubbish repeated endlessly while campaigning -meaningless rhetoric, exposed by endorsing Clinton, shamelessly praising her, bashing Trump.
He reduced himself to a caricature of the phony persona he displayed on the stump. Support for Clinton means endorsing imperial wars, democracy for the few alone and tyranny heading toward becoming full-blown while pretending otherwise.
Saying “Hillary Clinton will make an outstanding president, and I am proud to stand with her here tonight” showed everything he claims to stand for is a Big Lie.
It’s pure fantasy, duplicitous doublespeak, the lowest denominator of political dishonesty, stringing along his supporters, betraying them when it most mattered.
His soul was for sale all along. He’s now a footnote in the deplorable history of US politics, hugely corrupted, impossible to fix.
Stephen Lendman can be reached at firstname.lastname@example.org.
His new book as editor and contributor is titled Flashpoint in Ukraine: US Drive for Hegemony Risks WW III.
Ted Cruz has more balls than Bernie Sanders
Wikileaks over the last few days dumped tens of thousands of emails hacked from the Democratic National Committee (DNC) server.
The disclosures of dirty tricks directed against Bernie Sanders contained in those emails are startling, and only add to the whirlpool of corruption and sleaze surrounding Hillary Clinton and the wheezing corpse of the democratic process.
There’s a lot to unpack here:
— The same people on the Clinton team who made enormous efforts to claim her private email server, which operated unencrypted over the Internet for three months including during trips to China and Russia and which contained Top Secret national security data, was not hacked by the Russians now are certain that the DNC server was hacked by the Russians.
— Many in Camp Clinton and the media labeled Bernie Sanders’ supporters as paranoid when they made claims during the primaries that the DNC was working against them. The hacked emails confirm the DNC was working against them, including suggestions that the DNC find ways to suggest Sanders was an atheist to discredit him in religious areas.
— Persons who claimed many in the media, including CNN, were biased in favor of the Clinton campaign during the primaries were dismissed. The hacked emails confirm the DNC was working closely with the media to seek negative coverage of Sanders and positive coverage of Clinton.
— Politico now admits it was a “mistake” sending the DNC an article draft in advance. The writer showed the draft to the DNC even before his own editors saw it.
— Facebook admits to blocking Wikileaks links to the DNC email hack from its newsfeeds (but blames spam filters.)
— The DNC appears to have expended significantly more effort toward defeating Bernie Sanders than they did against any of the Republican candidates.
And some more:
— Instead of focusing on the contents of the hacked emails and the dirty tricks they exposed, many mainstream media outlets headlined instead the Clinton campaign talking points that the Russians hacked the emails and released them in an effort to derail her candidacy in favor of Donald Trump. Many of the same stories suggest Trump is some sort of pro-Putin stooge.
— On 60 Minutes, Clinton refused to say intervention by the DNC to favor one candidate was “improper.” Her non-answer was edited out of the interview broadcast.
— After DNC chair Debbie Wasserman Schultz announced her resignation following this week’s Democratic convention, the Clinton campaign announced Wasserman Schultz would be hired by them as “honorary chair of Hillary’s campaign’s 50-state program to elect Democrats in every part of the country, and as a surrogate for her campaign nationally.”
— Debbie Wasserman Schultz will be replaced as DNC chair by (only now former) CNN commentator Donna Brazile. Brazile argued the pro-Clinton side of debates on CNN throughout the primary season.
— In the hacked emails, Brazile said “I will cuss out the Sanders camp!” over complaints by Sanders of inadequate representation by the DNC. In March while still employed by CNN, Brazile called Sanders’ decision to run as a Democrat for the additional media exposure “extremely disgraceful.”
And very sadly:
— Bernie Sanders, his campaign sabotaged by the DNC with what were once “paranoid” accusations now proved, still endorses Hillary Clinton and will still speak at the Democratic National Convention.
It pains me to say as his once-supporter that the man has no courage. Even Ted Cruz stood up for himself in front of the Republicans in Cleveland. It is a sad day when we learn Ted Cruz has more balls than Bernie Sanders.
Those who are calling all this a coup of sorts, they’re wrong. It’s a surrender. But in the words of Hillary Clinton, what difference does it make?
Donald Trump is erratic. We all know that. It is insulting to assert, in the words of Britain’s new Foreign Secretary, the erratic Boris Johnson, that he is «frankly unfit to hold the office of President of the United States», but he’s certainly unpredictable and says some things that are, to put it mildly, intriguing. The fact remains that he could be next president of the United States, which makes it important to look at what he might do if that comes about, especially in the light of America’s military catastrophes so far this century.
Obama followed his predecessors in expanding America’s iron fist as self-appointed global policeman. He vastly increased the US military presence around the world and intensified the Pentagon’s aggressive confrontations with China and Russia.
In China’s case this was effected by sending US Naval E-P3 electronic surveillance aircraft on missions close to the mainland, deploying EA-18G Growler electronic attack aircraft to Clark Air Base in the Philippines, ordering B-52 nuclear bombers to overfly the South China Sea where the US Navy also carried out extended manoeuvres by massive strike groups of nuclear-armed aircraft carriers and guided missile cruisers. All this in a region where the US has not the slightest territorial interest or claim. China’s Sea is 12,000 kilometres, 7,000 miles, from the American mainland, yet Washington considers it the sacred right and duty of the United States to act as a global gendarme and give orders to China about its posture in its own back yard, where there has not been one instance of interference with commercial shipping passing through that region.
As to confrontation with Russia, the US has ensured that its Brussels sub-office, the North Atlantic Treaty Organisation, will go on playing its toy-soldier games right up to Russia’s borders. The official statement after NATO’s war drum-thumping conclave in Warsaw on July 8-9 is indicative of its determination to continue its attempts to menace Russia, which has not made the slightest move to threaten a single NATO member. It is absurd to claim that «the security situation has deteriorated» in the Black Sea and the Baltic because of Russian action.
These regions would be perfectly calm if it were not for constant provocations by US-NATO warships and combat and electronic warfare aircraft which deliberately trail their coasts in attempts to incite reaction by Russian forces. NATO’s Warsaw Declaration is a farrago of contrived accusations compiled to justify the existence of the farcical grouping that destroyed Libya and proved incapable of overcoming a few thousand raggy baggy insurgents in Afghanistan. So the military alliance is spending vast sums to deploy soldiers, aircraft, ships and missiles right up to Russia’s borders in deliberate confrontation. As Russian spokesman Dmitry Peskov explained «Russia is not looking [for an enemy] but it actually sees it happening. When NATO soldiers march along our border and NATO jets fly by, it’s not us who are moving closer to NATO’s borders».
There’s no answer to that, but the Obama-Pentagon administration is not going to relax its anti-China and anti-Russia attitude, and if Hillary Clinton becomes president – she of the infamous «We came; We saw; He died» giggling interview in which she rejoiced in the savage murder of President Gaddafi of Libya – there will be more of the same. In fact, probably a lot more of the same, only harder, faster and of more financial benefit to US manufacturers of weapons systems. She described President Putin as «someone that you have to continuously stand up to because, like many bullies, he is somebody who will take as much as he possibly can unless you do. And we need to get the Europeans to be more willing to stand up».
So might The Donald be different?
He’s arrogant and impulsive, but although the official Republican stance on China is predictably belligerent, it isn’t likely that The Donald will support confrontation by the nuclear-armed armadas that at the moment plough so aggressively around China’s shores. And he isn’t likely to endorse the Pentagon’s happy fandangos concerning Russia, either.
His comments about the US-contrived shambles in Ukraine are illuminating, in that he says «we’re the ones always fighting [figuratively] on the Ukraine. I never hear any other countries even mentioned and we’re fighting constantly. We’re talking about Ukraine, get out, do this, do that. And I mean Ukraine is very far away from us. How come the countries near the Ukraine, surrounding the Ukraine, how come they’re not opening up and they’re not at least protesting? I never hear anything from anybody except the United States».
They’re not protesting because they have to bow the knee to the Pentagon and its palatial branch office in Brussels (recently built at a cost of over a billion euros) – but The Donald made a good point: Why on earth does the US meddle in Ukraine? Has it benefited economically, politically, socially or culturally from its blatant interference?
Not only that, but The Donald says that the United States has to «fix our own mess» before «lecturing» other nations on how to behave.
No matter how extreme he may be in some of his statements, that one strikes a truly sensible note. Why does America consider that it has the right to hector and lecture China and Russia and so many other countries? It is, of course, because, as Obama announced, America considers itself the «one indispensable nation in world affairs».
What crass conceit. And Obama laboured the point in declaring that «I see an American century because no other nation seeks the role that we play in global affairs, and no other nation can play the role that we play in global affairs». This comes from the president of the country that destroyed Iraq and Libya, and is now itself in chaos caused by deliberate killing of black people by police and a surge in black protests against such slaughter.
Certainly The Donald shouts that he wants to «Make America Great Again» and such xenophobic nonsense – but that’s for the sake of vote-catching. As he rightly said, «When the world sees how bad the United States is and we start talking about civil liberties, I don’t think we are a very good messenger».
Then The Donald went further in common sense and suggested that as president he might close some of the hundreds of US military bases abroad because «if we decide we have to defend the United States, we can always deploy» from American soil, which would be «a lot less expensive». How very sensible.
Hillary came back with the predictable rejoinder that the president of the United States «is supposed to be the leader of the Free World. Donald Trump apparently doesn’t even believe in the Free World». This is straight out of the Cold War vocabulary of divisive confrontation – and if she becomes president, there will be even more pugnacious patronising baloney about «leadership of the Free World» and «the one indispensable nation». As The Donald said, «How are we going to lecture when you see the riots and the horror going on in our own country».
So there might be hope for the future if The Donald drops his more outlandish ideas about Muslims and Mexicans and institutes a policy of rapprochement and live-and-let-live with China and Russia. He’s a better bet on that score than confrontational Hillary.
It just might be that The Donald would be good for rapprochement and peace.
Those “damn emails.”
Watching the new Bernie Sanders, distracted by his “awkward dance” to the tune of that damn Platform, one might think him unaware that he had his last best chance to win the Democratic nomination snatched from him in broad daylight. Republicans appear far more disturbed than Sanders is about Clinton sewing up the nomination by beating her secret server rap on dubious legal grounds. Since polls have consistently shown Sanders, not Clinton, to be the strongest candidate to beat their guy, one might expect not Republicans, but Sanders, to be out front on this issue. But its 2016, when the “progressive” revolutionary is endorsing the establishment plutocrat.
In last Thursday’s “emergency” congressional oversight hearings, FBI Director James B. Comey was questioned about his unprecedented Tuesday, June 5, press conference Statement justifying the Bureau’s mutually contradictory factual and legal conclusions from its long-pending investigation of Hillary Clinton’s “servergate” problem. Republicans under committee Chair Jason Chaffetz (R-UT) conducted a professional, informed and fair interrogation of Comey that contributed to the debate. Comey’s less than convincing legal justification for his decision opened as many lines of inquiry as it closed.
Trey Gowdy, (R- SC), a former federal prosecutor, walked Comey through the false statements that Clinton told his Benghazi Committee in October. This evoked a sworn on-the-record FBI endorsement of what amounted to several counts of a potential criminal indictment of Clinton for lying under oath. One wonders if the FBI will investigate the question whether Clinton intentionally lied to Congress as gingerly and at the same level of competence as the FBI’s first limited investigation, which even non-lawyers on the Oversight Committee were able to effectively criticize.
Having virtually framed the indictment of Clinton for lying to Congress, Gowdy then delivered a Socratic lesson to Comey on the subject of how such “false exculpatory statements” by Clinton, along with Clinton’s pervasive and “complex scheme that was designed for the very purpose of concealing the public record” could have been used in the “servergate” case to prove her requisite criminal intent, the supposedly key element of the crime which Comey claimed he could not find.
Gowdy completed his attack on Comey’s central evasion for not indicting Clinton by instructing him that intent is rarely proven by direct evidence, such as Comey seemed to suggest was needed. “You have to do it with circumstantial evidence,” Gowdy said. Gowdy outlined in less than five minutes for Comey what the FBI was somehow incapable to piece together over many months.
Circumstantial evidence has been used in similar cases. In the notorious case of Jeffery Sterling, DoJ was able to imprison a CIA agent on the sole basis of circumstantial evidence amounting to no more than speaking to a reporter, a case that was partially motivated by retribution for Sterling’s racial duscrimination claim against the agency. Another entirely circumstantial case was made against a mid-level bureaucrat for talking with a reporter without direct proof of intent, let alone transfer of any particular information.
This initial examination of Comey by Gowdy and other Republican committee members supports the suggestion that Comey’s formal statement denying Clinton’s criminal intent, quoted below, constitutes one of a series of “coincidental shams and deceptions deeply rooted in a corrupt political system.” This sham includes a) the extended delay and timing of what appears to have been a superficial and artificially limited investigation designed to exculpate, b) the unethical ex parte meeting between Comey’s boss and Bill Clinton at the Phoenix airport, c) AG Lynch’s refusal to recuse herself for that ethical lapse, and d) instead abdicate the DoJ’s prosecutorial judgment to a political FBI Director, e) Clinton (who “believes in gestures”) making anonymous leaks that “she may decide to retain Ms. Lynch,” f) Obama’s endorsement of and North Carolina campaign stop with Clinton timed to deflect attention from the FBI’s criticism of her lies and “extremely careless” conduct in high office, g) unprecedented signature of non-disclosure agreement for agents on this case, and then h) the very nature of the Statement itself, both the unprecedented PR exercise of its being made public and the FBI’s straying well beyond its proper duties and expertise to make and announce the operative legal decision not to prosecute. Reciting some these coincidences Rep. Mica observed “what’s come down, it almost looks like a choreography.”
It may be only a coincidence that Lynch was appointed attorney general by Obama very shortly after Clinton started deleting her “servergate” files in February 2015. And it may be a coincidence that Comey was appointed around the time in 2013 that Clinton’s potential crime was coming to light. But was it a coincidence that Obama failed to appoint a State Department inspector general during all four years of Clinton’s tenure as Secretary of State?
Selling a Technical Fix for a Political Problem
The FBI does not prosecute, and does not evaluate or fire prosecutors. It investigates federal crime, which is a technical and not political process. It is not the FBI’s job to tell prosecutors how to do theirs, but rather to provide the investigation needed for prosecutors to make legal decisions based on reliable and thorough facts. Jason Chaffetz (R- UT) called out (3:34) how unprecedented it was for Comey to go public with such a statement, and then also to do so about more than just the facts discovered by the FBI, but also to publicly pre-judge the legal questions involved in a possible prosecution, indictment, and trial. Rep, Mulvaney also repeated this criticism as a question: “It is unprecedented that an FBI Director gave the type of press conference that he did and took a position that an unreasonable prosecutor would only take this case forward. Why would do you that?” Comey agree, :Yes, it’s a great question.”
Comey’s opinion was that commission of the crime detailed in the FBI’s investigation should nevertheless not be prosecuted because of insufficient “intent” by Clinton. This opinion was not only based on a failure to marshal available evidence, as Rep. Gowdy pointed out, but also a misinterpretation of well-settled law, as discussed below. It also prejudices any future prosecution the Justice Department might have decided, or may decide to pursue in the future, unless discredited as an abuse of the FBI Director’s authority
As Matthew Miller, a former Justice Department official, judged, Comey’s performance was “a gross abuse of his own power,” in part because he “substituted his judgment for that of prosecutors.” The FBI’s autocratic legend who was not shy about expanding the powers of the Bureau, J. Edgar Hoover, himself decreed: “We are a fact gathering organization only. We don’t clear anybody.” sixty years later, Comey has now added a corollary to this rule: “except a Clinton” when it’s time to determine the next president.
This unprecedented FBI polemic about Clinton’s intent violated the general rule that one does not ever speak publicly about a pending investigation or litigation because it can distort due process. It was dramatically improper conduct for political purposes. It is one reason why Comey should be at least fired, if not formally reprimanded or impeached by Congress.
The argument for impeaching Comey is that if Comey does not suffer serious consequences in public, the Clinton case cannot be effectively prosecuted. He has spoiled the case, and failed to faithfully execute “the Laws.” (Art. II, Sec. 3.) He has also established a dangerous precedent for abuse of FBI power that needs to be soundly rebuked. That is difficult to do in any other politically responsible manner than the constitutional process for checking inappropriate executive action, an impeachment vote by the House of Representatives. (Art. II, Sec. 4.) His errors in stating the governing law on which he based his institutionally improper opinion provide yet other reasons for disciplinary action.
This impropriety of the chief federal investigator acting as prosecutor, grand jury, judge, and jury arose out of the context where Comey’s boss Loretta Lynch had said she would abdicate to the FBI her duty to make the legal and political decision on the Clinton case, rather than simply recuse herself for her ethical lapse in holding a secret ex parte meeting with a potential target and surrogate of the main target of the investigation.
By making the legal decision himself rather than properly leaving it to senior Justice Department lawyers and the attorney general, Comey clearly did a political favor not only for Lynch but also for President Barack Obama, who also has a flair for improperly prejudging pending cases, as he did this one. Both of them would otherwise have had to take political responsibility, with an historically dissatisfied electorate, for an unpopular and controversial partisan political decision, the first of its kind in U.S. history, based on a distorted legal analysis. Both had conflicts of interest as political partisans of the same stripe as Clinton. Obama would have effectively pardoned his endorsed successor for preserving his plutocratic legacy. Lynch would be exonerating her potential future employer, who may well eventually appoint her to be the first black woman on the Supreme Court much has her husband appointed Lynch to be US Attorney.
Both the ethical lapse at the airport and the ensuing abdication, rather than recusal, deserve separate reprimand. In her hearings the barest scent of impeachment was in the air. Rep. Goodlatte (31), lawyer and Chairman of the powerful House Judiciary Committee, and not known to make such accusations lightly, charged that Lynch’s abdication was “not [a]… responsible way to uphold [her] constitutionally sworn oath.” The hearing established that “servergate” was the first time Lynch had announced such an abdication of duty ahead of time, that she would follow recommendations of a committee rather than make her own decision. This abdication of responsibility under the pretense that it would remedy her ethical lapse, according to Rep. Jordan (2:13) actually “made a bad situation worse.” AG Lynch’s rehearsed, run-out-the-clock, stonewall demonstration before the Committee of “prodigious dissimulation skills” (Franks,1:50) in furtherance of her abdication bordered on contempt of Congress. On the merits, Rep. Gowdy who knows how to conduct cross-examination could not get a straight answer from Lynch to the simple question of why a specific intent standard was applied by the DoJ when the statute does not demand it, which is the central issue. Her riposte to nearly every question is that her sole decision was to in effect abdicate her duty and that questions on the details should be referred to Comey.
Comey’s highly improper public recitation of facts sufficient to indict, while denying Clinton, for his own political reasons, the opportunity to controvert those facts in court by indicting her was undoubtedly the price Comey had to pay to prevent mutiny from the professionals inside his Bureau. One former spy who is closely following the case predicted that “there are high-ranking spies who [we]re perfectly willing to leak the sordid details of …. exactly what Hillary Clinton did,” had Comey failed to make a credible accounting. But FBI investigators take institutional responsibility solely for delivering the facts, not for Comey’s personal venture into political fixes at the presidential level, nor for his idiosyncratic legal conclusions that Lynch improperly allowed him to make, with some cover provided by unnamed DoJ attorneys on a committee.
Evidence of Intent: looking in all the wrong places
Comey was able to make a political decision appear to be a technical decision by basing it upon his peculiar views of the evidence necessary to prove intent, at least in this one case. But as Rep. Gowdy explained to Comey, this technical decision about intent failed to take proper account of the inferences to be drawn from the circumstantial evidence that shows Clinton’s intent to break the law. For example, Clinton clearly intended to give classified information to her lawyers who lacked security clearances, as well as to allow her uncleared tech support to have access. Comey had no good answer for such facts.
Among the many lapses of judgment that Comey defended, he did not think it germane to an assessment of her intent that Clinton, and nine of her former top aides, refused to be interviewed by the State Department inspector general. A person of innocent intent would have no reason to avoid such an interview by her former employer on a matter within the scope of her employment.
Comey’s refusal to comment on the existence or not of a related Clinton Foundation investigation suggests that, contrary to speculation, those very public allegations of Clinton’s handling of systemic conflicts of interest was not part of the secret server investigation. Such a joint investigation of the two potentially related matters would have justified the FBI’s delay. Not taking into account the Clinton Foundation line of inquiry would exclude consideration of a potential motive for Clinton’s prioritizing over keeping the nation’s secrets keeping secret from the government her “private” emails. About half of the total were allegedly private, representing a quite intensive “private” life for someone in such a high public office. Investigator Greg Palast points out that notionally private communications because addressed to her family, did involve official business. That potential motive would have been far more nefarious than the motives that Comey does approve for prosecution in other cases, such as whistleblowing on matters of mismanagement or torture.
The damage done may also have been greater. William Binney, a former high-ranking NSA official, claimed that the “rather devastating compromise of technical capability and a commensurate loss of high value intelligence” from just one 2011 Clinton email released by the State Department may be “difficult for the public to understand and comprehend, but it is … much worse than what Julian Assange or Chelsea Manning or any of the other whistleblowers have done.” The email wasn’t redacted because it was sent to Clinton by Sid Blumenthal, a private citizen with no security clearance. But as shown in many other emails he sent to Clinton, he somehow had access to the latest top secret NSA information that revealed the NSA’s sources and collection methods.
As it turned out, such a motive of keeping corrupt activities private from government security officials and Freedom of Information Act (FOIA) investigators might have been ineffective in any event. On the same day Comey gave his presentation clearing Clinton, the D.C. Circuit ruled that government email records on private equipment are subject to FOIA if they are not held under a claim of private right. See Competitive Enterprise Institute v. Office of Science and Technology Policy (2016) (“If a department head can deprive the citizens of their right to know what his [sic] department is up to by the simple expedient of maintaining his departmental emails on an account in another domain, that purpose [of FOIA] is hardly served.”)
After reciting facts that have long been known by the public, and that contradicted exculpatory public statements by Clinton, the FBI’s operative finding delivered by Comey was that “we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information.” In the oversight hearing on July 7th, Comey did not demonstrate a full grasp of facts, such as who paid for Clinton’s server. He did not personally interview Clinton nor did he talk with all of the “five or six” agents who did. Another painfully obvious example was when Comey was asked by Rep, Meadows “did [Clinton] contradict some of [her] public statements in private? Because you said she didn’t lie to the FBI, but it’s apparent that she lied to the American people. So did she change her statements in [her] testimony with you last Saturday?” Comey’s incredibly ignorant response was “I haven’t gone through that to parse that…” Rep. Meadows requested “Can you do that and get back to this Committee?” When asked again by Rep. Mulvaney: “why she told y’all one thing and told us another?” Comey replied “I don’t know as I sit here. I mean, I can — I’ll figure that out” even though he agreed “that [could] have been of interest to you in helping to establish intent?”
This is Congress asking the FBI to apply one of its most common enforcement tools, trapping people into making false statements, as if it were some novel enforcement tool they had not thought of before. It will be important to monitor whether Congress will insist that Comey satisfy Rep. Meadows’ request, and Comey’s promise, to “figure that out” why Clinton is not being prosecuted for false statements to the FBI.
Due to repeated professions of ignorance of this kind, Comey’s formula that he did not “find clear evidence” was less than convincing that he looked in the right places.
Comey’s finding was not that Clinton’s conduct did not possibly violate the law, but an inference from Clintons’ “Whoops, sorry, didn’t mean to, won’t do it again:” Voila! No intent; no crime. As Gowdy’s questioning suggested, if when Comey used the word “clear” to describe the quality of evidence of intent that he was looking for he actually meant “direct,” that kind of evidence almost never happens in the real world. The evidence of intent, unless confessed, is always inferential, circumstantial, and indirect, not “clear” in the possible colloquial use of that term that Comey seemed to employ.
Since “clear evidence” is not a legal term, the country is left to guess what Comey’s subjective meaning for the term is. The impression left by Comey, which Gowdy forcefully challenged, was that indirect and inferential evidence was not considered by Comey to be “clear” evidence, and therefore Clinton could only be indicted if she confessed. Indeed, Comey distinguished the Deutch case on the grounds that Deutch “admitted, ‘I knew I wasn’t supposed to be doing this.” The idea that no prosecution can be maintained without a confession is of course the most arrant nonsense. Rep. Duncan reported that when he was a judge he “saw many cases where the evidence of criminal intent was flimsier than the evidence in this case.” But Comey has so far gotten away with asserting the contrary.
The kind of clarity that Comey was seeking would have to dispel his opinion about, among other things, Clinton’s apparent denial that she understood classification markings within a text of a document: “I think it’s possible — possible that she didn’t understand what a “c” meant.” But then, in response to a question by Rep. Meadows whether it is reasonable to doubt such a denial, i.e., “wouldn’t a reasonable person think that someone who has the highest job of handling classified information would understand that?” Comey replies “I think that’s the conclusion a reasonable person would draw. It may not be accurate.” One can observe Comey retreat here from applying the legal reasonable doubt standard into some subjective standard of his own concerning “clear evidence.”
Provided Clinton insisted on her own ignorance which no jury would likely accept, if Comey was looking for other “clear” evidence of intent, he was looking for some abstraction that does not exist, and which the law does not require. No matter how much one looks no other direct evidence will be found without extraordinary investigatory measures. Comey was apparently not looking for it by using such measures. He did not disclose the existence of wiretaps to monitor Clinton’s private conversations for which he clearly did have probable cause. But the inferential and circumstantial kind of evidence that Gowdy recited, and which is commonly sufficient to convict of the intent element of all ordinary crimes where the issue might arise, was not discovered under Comey’s leadership because it was apparently not “clear.”
Comey’s “Reasonable Prosecutor”
Comey’s flawed approach to assessing the element of intent is discussed in further detail below. First, it should be pointed out that Comey offered this opinion, one that departed from the traditional standard of reasonable doubt in favor of some unknown subjective standard of his own, to support his “judgment … that no reasonable prosecutor would bring … a case” for Clinton’s “potential violations of the statutes regarding the handling of classified information.” As mentioned, this judgment went beyond Comey’s position as FBI director to give, and it was given on the basis of his own idiosyncratic legal test.
In his July 5th statement, Comey explained:
“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. In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.”
Again, Comey probably did not “see those things” because he did not look, mainly because he was looking for the wrong thing. Clinton’s server did involve “vast quantities of materials exposed in such a way as to support an inference of intentional misconduct.” It was not just a mistaken channeling of a few emails through her separate personal email. It was systemic and vast removal of her routine official email traffic from secure government channels to her insecure private server domain used for her “email@example.com” address.
This pervasive arrangement was therefore all but certain to expose national secrets.
Clinton deliberately commingled the personal and the public, permitting her to later delete the public’s communications under the unverifiable, and apparently inaccurate, excuse that she only deleted her personal communications. There is no reliable way of knowing what she deleted because the data was wiped nearly clean.
A fiduciary who commingles financial assets is guilty of crime. Clinton commingled real assets, national secrets owned by the public, with her private information, and put them both in her private insecure server. This violates several federal statutes.
What would be enough evidence of intent for a “reasonable prosecutor” to pursue a conviction for this violation is again left to Comey’s own subjective standard. An objective standard would be met, first, by restraining the FBI Director within the proper scope of his duties, then appointing a professional unbiased special prosecutor to separately assess the legal implications of the facts the FBI produced. The prosecutor should be free of political ties and conflicted interests, such as job retention or promotion in a new administration. Then the case should be presented to a grand jury for possible indictment to determine its objective validity.
That is the constitutional process to achieve objectivity in prosecutions of this political kind of matter. But as mentioned above, the case cannot now be prosecuted unless Comey himself suffers consequences for his improper and unprecedented conduct that relegated the legal and policy decision of whether to prosecute to his own subjective standards under the pretext of being a technical decision backed by the prestige of the FBI.
Before anyone searching for such an independent prosecutor takes Comey’s word about his standard for “reasonable” prosecutors, they might want to first check with his FBI Sacramento office about whether they would agree with Comey that Assistant United States Attorney Jean M. Hobler should be considered unreasonable for successfully prosecuting the case of a reservist named Bryan Nishimura for “removing and retaining” on his private computer classified material acquired when he was serving as a Naval Engineer in Afghanistan.
The FBI investigated this case as a violation of 18 U.S.C. §1924, and published a press release just one year ago lacking any suggestion that the FBI considered Hobler to be anything but a “reasonable prosecutor” for winning this case. Though not nearly as significant as Clinton’s similar crime, this case was virtually identical as far as the element of intent goes. Intent was not an issue. In fact, the investigation of the Nishimura case found no motive “to distribute classified information to unauthorized personnel,” which is not quite true of the Clinton case. But lack of wrongful motive was not a problem for the prosecution of Nishimura. Comey contended the Nishimura case could be distinguished when it was raised by a committee member at the hearing, but he did not actually say how.
Congress needs to ask the Director to put together a dossier of similar cases that the FBI has investigated, and that Comey might have thought could be distinguished although their relevant facts are similar to Clinton’s case. Since in his July 5th presentation Comey said “we cannot find a case that would support bringing criminal charges on these facts,” we need to know if his definition of “these facts” include only relevant facts, or if he considers distinctions that are political or otherwise legally unpersuasive.
Congress needs to ask Comey for all the available legal memoranda distinguishing such cases as the Nishimura case, or the John Deutch case, and others, so people can determine whether these cases really are so different in principle from Clinton’s case after they have a “complete accounting of the facts” which Comey claimed they do not now have, but which he does have. It is almost certain that none of the cases prosecuted under the relevant statutes prohibiting mishandling of government records could be distinguished with respect to the element of intent.
Many commentators, including Representatives Gowdy, Chaffetz, and other oversight committee members concluded that Comey is operating within the framework of a two-tiered system of justice by providing an evasive justification of insufficient intent. The elite political class has one kind of law and everyone else has another. See Matt Taibbi, The Divide: American Injustice in the Age of the Wealth Gap (2014). At the same time that police are murdering people on the streets with impunity, the political elite in the capital is placed above accountability to the law.
Confusing motive with intent
Comey has not only misled the public by his demand for evidence that Clinton’s violation of the law was “clearly intentional and willful” according to some subjective evidentiary standard of his own. More importantly, in his discussion of precedents, quoted above, he deliberately confuses these terms relating to intent with the separate concept of motive. Comey’s description of his search for precedent suggests that he was not really looking for intent, but rather different varieties of motives involved in cases where forbidden material had been placed on private computer devices, or otherwise compromised.
As Supreme Court justices Alito and Thomas said in another context, Comey’s quoted statement about controlling Justice Department precedent “confuses two fundamentally distinct concepts: intent and motive…. [O]ur cases have recognized that a lawful motive (such as necessity, duress, or self-defense) is consistent with the mens rea necessary to satisfy a requirement of intent.” Rosemond v. United States (2014).
Any motive whatsoever, innocent or otherwise, can be used as evidence of intent, but rarely, if ever, can be used to disprove intent for purposes of determining guilt. From the defense perspective, the Supreme Court observed: “Motives are most relevant when the trial judge sets the defendant’s sentence …” Wisconsin v. Mitchell, 508 U.S. 476, 485 (1993) (hate crime). Thus motive might affect punishment, but ordinarily not guilt, except for proving the element of intent or as circumstantial evidence for identifying the culprit of proven bad acts, which is not in question here.
In the Sterling Espionage Act case, proof of an alleged motive for disloyalty to the CIA was virtually substituted for the lack of any direct evidence linking the defendant to the crime. Such trumped up cases invite a jury to illegitimately convict a person for imputed bad thoughts when there is insufficient evidence of the defendant’s bad acts. But where motive is not an element of the crime, evidence that one does not have bad thoughts cannot be used for defensive purposes, to exculpate, as Comey has used it.
In the end, Comey’s argument amounted to little more than an opinion about the success of such a “bad thoughts” case against Clinton. But it ignored that Clinton’s “bad acts” was all he needed to prove, and Clinton’s connection to those acts, unlike the Sterling case, are virtually unquestioned. By cleverly diverting his legal analysis of intent to the issue of motive, Comey made an inherently arbitrary political distinction between motives that the administration can tolerate by its friends and motives it disapproves. This is a violation of the rule of law which does recognize such political preferences but rather defines a crime applicable to everyone irrespective of their friends in high places or the kinds of motives their friends find politically unthreatening to themselves.
This highly limited, solely evidentiary, role of motive in all ordinary criminal prosecutions is shown to be violated by Comey’s reference to the kind of “intent” that he said was defined by Justice Department precedent concerning “disloyalty to the United States; or efforts to obstruct justice.” Such categories clearly involve motives for committing a crime and not the element of intent to commit the underlying crime of mishandling the nation’s secrets, and other government information. Whether it was done for reasons of disloyalty, obstruction, or any other motive in not necessary to proof of intent. These “fundamentally distinct concepts” of motive and intent are jumbled up here on Comey’s list of precedents together with his discussion of “intentional mishandling” or “intentional misconduct,” instead of focusing on the actual element of intent to commit the acts which constitute a crime.
In this context of Comey’s description of the precedent he consulted, each of these formulations appear to share a concern more about the motive of the accused to accomplish some specific purpose by means of violating the law, rather than looking to the intent simply to violate a law. Again, intent is an element of a criminal offense, but motive – with very rare and particular exceptions – is not. Comey has let Clinton off because he did not find evidence of a motive sufficiently evil by his subjective standards, even though under the relevant statutes motive is not even an element of the crime that needs be proven at all. It is not necessary to unpack Clinton’s motives in order to convict her of the crime. Her professions of innocent motive does not obviate that she had the necessary intent to commit the acts that constitute several crimes.
There is evidence, of course, that Clinton did reveal her motive by saying to a confidant, “I don’t want any risk of the personal being accessible.” This is evidence of her intent to make her own rules that would better protect her own inordinate interest in personal privacy rather than to follow the State Department rules for her communications to protect the public’s interests in security. Her publicly expressed motive for having a secret server was different. She told the public it was for her own “convenience” that she risked making accessible to foreign countries and hackers the nation’s secrets entrusted to her, along with “the personal.”
Clinton said it was for this interest of convenience that she wanted to use only one communications device, which is a somewhat less suspect motive than an unprecedented and unauthorized obsession with secrecy. It was Clinton’s decision, intent, to put both “the personal” and the public information equally at risk through her insecure server rather than risk some disclosure of “the personal” to the internal processes of the State Department. This judgment raises questions about whether she might be hiding from the public (although not from foreign hackers) information as important to her as the nation’s secrets.
An unnamed former NSA official familiar with the effort to get Clinton to obey the rules, now asks, “What did she not want put on a government system, where security people might see it?” She must have known that her own server was not only less secure than the government’s, it was also “less secure than,“ Google’s ordinary Gmail account, according to Comey.
The alleged motive of Clinton wanting to use only one mobile device for convenience appears to be a lie in any case, because the FBI found she actually had used more than one device. Apparently, Clinton bought an iPad in 2010, just one year into her tenure as Secretary of State, while continuing to use her BlackBerry. If Comey’s sworn testimony does disprove Clinton’s convenience motive, that she wanted to have the personal and the public communications all on one device, then as the former prosecutor Rep. Gowdy pointed out to Comey, lying about her motives would be highly probative evidence of her intent. Rep. Gowdy also contends “if it were convenience Director, she wouldn’t have waited two years to return the documents and she wouldn’t have deleted them four years after they were created” to which Comey made no coherent response.
A person lacking any intent to break a law would not need to invent motives for breaking the law, in order to disguise other more nefarious motives. A person with no intent lacks the state of mind to have a motive. Satisfying the legal element of intent only requires that Clinton acted deliberately, not that she acted with an particular subjectively evil motive.
Comey’s use of the term “willfully” in his “precedent” argument quoted above, as if it, like Comey’s subjective term “clear,” required some proof of motive, otherwise known as specific intent, is legally outdated. The Supreme Court long ago rejected the idea that, without more, the term “’willfully’ requires proof of any motive other than an intentional violation of a known legal duty.” United States v. Pomponio, 429 U.S. 10, 11-12, (1976). The sole question that “willfully” can raise is whether Clinton knew she had a legal duty not to “remove and retain” confidential or other national defense information, or otherwise mishandle the public’s information.
It is not necessary to parse Supreme Court decisions to understand the fundamental difference between motive and intent that Comey confused, since the distinction is embedded deeply in criminal law. A popular nineteenth century legal handbook, for example, stated quite clearly that “motive with which an act was done is immaterial in deciding the question of criminality. A crime can be committed with a good motive…” “Motive may … sometimes be shown in evidence; but it is merely as evidence of intent. Motive must not be confounded with intent.” May’s Criminal Law (Beale, ed., 2d Ed.: 1893) 18.
Comey, in violation of these black-letter law principles, precisely did “confound [motive] with intent.” In saying that Clinton lacked sufficient criminal intent according to the precedent he described, what he was actually saying was that the FBI did not have clear evidence of the kind of motive that he himself found sufficiently offensive, not what Congress required to prosecute her violation of the law. His argument, discussed further below, was that the unprecedented nature of the professed motives for a Secretary of State to commit the crime of systematically mishandling the nation’s secrets about foreign affairs that were entrusted to her was an excuse for exonerating the crime.
It was not Congress that created such a hierarchy of motives in the relevant statute, a hierarchy that would exonerate the unprecedented motives of corrupt elites but not the quotidian motives of those without power. In order to achieve the political aim of exonerating Clinton, it was her executive branch political allies, on delegation to the FBI Director, who reinterpreted the law to insert a motive element of the crime, where none exists.
Intent is Presumed
Even more important than Comey’s confusion of motive and the ordinary intent element of a crime is his related view of the amount of evidence needed for its proof. The fact of motive, being subjective, may be difficult to prove. The legal element of intent, once properly disentangled from motive, is nowhere near as difficult to prove as Comey wants us to believe. Again, it has been long established in criminal law that, “one [who] does an unlawful act … is by the law presumed to have intended to do it, and to have intended its ordinary and natural consequences.” Id. 19.
When Clinton arranged to have her public business conducted on an unauthorized private email server in her basement against the rules of the State Department, and therefore in violation of a number of federal laws – that act alone was sufficient to prove the intent element of the crime, the same as it would be for any mentally competent, sane, adult. The burden is on Clinton, not Comey, to prove by persuasive evidence that she peculiarly lacked the capacity to have the same intent any reasonable person would have in taking the actions she did. Comey therefore misled the public and Congress when he claimed that as a general rule prosecutors are concerned about “the strength of the evidence, especially regarding intent.” Intent is ordinarily the least “especial” element of a crime.
Comey justified the fix by saying, “I don’t think our investigation established she was particularly sophisticated with respect to classified information.” A predecessor of Clinton as Secretary of State, Madeleine Albright, lectured her employees that “if you are not professional about security, you are a failure.” Even if the kind of ignorance and failure in dealing with the nation’s secrets that apparently persuaded Comey about Yale Law School graduate Clinton’s motive were ever to be believed by a jury, or anyone other than Comey, ignorance of laws (not to mention Comey’s new standard of “lacking sophistication” about laws) concerning such matters is normally not a defense. When Comey was challenged by Rep. Farenthold on this point, Comey’s reply that “you must be aware of the generally wrongful nature of your conduct” did not exclude the case of Clinton. Comey acquitted her because of lack of very specific knowledge, not lack of general awareness that her server would contain classified information. Her ignorance defense would be even more difficult to sustain in view of signed documents where she acknowledged her understanding under oath, for example, that “classified information is marked or unmarked classified information.”
There are some obvious exceptions to the general rule that evidence of motive is unnecessary to proof of the crime, such as for hate crimes, civil rights violations, and treason where evil motive is an express element of the crime. There are also some less obvious exceptions where “Congress may decree otherwise” by expressly adding a “willful” element for criminalizing “not inevitably nefarious” regulatory offenses, such as involving taxation, or currency structuring. See Ratzlaf v. United States, 510 U.S. 135 (1994). Neither has Congress generally created such a motive element for the laws intended to protect the government’s interest in secure communications, nor are such laws normatively neutral regulatory measures of the kind that do require specific intent. Moreover the government has not treated these laws as requiring a nefarious specific intent, in cases like the Deutch case where the motive was similarly simply one of convenience.
One writer who offers legal credentials as authority for rendering political opinion has supported the FBI’s decision to exonerate Clinton. He claims it was justified by “a legal concept called mens rea. As a general rule, most crimes require prosecutors to prove that an individual acted with a particular state of mind before they can be convicted of a specific crime.” First, this statement is misleading to the extent it suggests that “most crimes” require specific (“particular”) intent, or motive. As mentioned above, very few crimes do. “As a general rule,” intent is presumed from the commission of the illegal act, and prosecutors have little concern about difficulties with proving intent.
Second, criminal laws do not necessarily require prosecutors to prove intent. For example, a Florida drug-law was held constitutional that provided “knowledge of the illicit nature of a controlled substance is not an element of any offense under this chapter. Lack of knowledge of the illicit nature of a controlled substance is an affirmative defense,” meaning that the defendant has to disprove the element of intent, with evidence that rebuts the common-sense presumption that people know what is in containers they control, whether it may be illegal drugs or classified information.
Third, this writer, like Comey, expressly limits his analysis to laws involving classified information, though other laws listed below were also implicated by Clinton’s secret server that go beyond just classified information to include all public records, or at least records involving national defense and foreign relations, without regard to their classification. On the assumption that only mishandling of classified information is prohibited, the mentioned writer thus draws the conclusion: “She had to have acted with knowledge that specific information was classified when it was transmitted. There is little, if any, evidence that Clinton possessed this state of mind.”
This statement, which reproduces the premise for Comey’s fix, can only be called nonsense in light of the description of the general presumption of intent from setting up insecure private communication that would inevitably include routing classified materials and materials about national defense and foreign relations through an insecure private server. No such specific information about any one particular communication was required by any law. Executive Order 13526, Sec. 1.4(d) (2009) defines “classified,” in part, as information relating to “foreign relations or foreign activities of the United States” which “could reasonably be expected to cause identifiable or describable damage to the national security.” Almost any information that a Secretary of State would be handling could have such an impact, some more credibly than others, since the Executive Order further provides that any “foreign government information is presumed to cause damage to the national security.”
It is the job of a Secretary of State to deal with “foreign government information” for the nation on a daily basis. Comey was unable to disagree with Representative Chaffetz’ observation that Clinton would reasonably expect to be communicating classified information through her insecure server on a regular basis. Chaffetz pointed out, “She’s not the head of Fish and Wildlife.”
Unlike the Espionage Act, 18 U.S.C. § 793(a), which applies to anyone and not just public officials, those few laws that Comey selected as within the scope of the FBI inquiry regarding Clinton’s emails, for example § 793(f), do not require a specific motive that the mishandled information was “to be used . . . to the advantage of any foreign nation.” Under § 793(f) the material itself only needed to relate to national defense, which does not concern motive but rather describes the kind of information protected by that particular statute.
Neither statute mentions classification. The statute concerning classification is 18 U.S.C. § 1924 which applies when “an officer, …of the United States … by virtue of his office … becomes possessed of documents or materials containing classified information … knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location.” This is the statue which reduces intent to gross negligence, presumably because the classification requirement is designed to place officials on notice of the material’s importance. Similarly, the only specific intent statute of this nature is one that applies to the general public which cannot be expected to know what officials can be expected to know.
Clinton did not have “authority” for removing her materials from the State Department communications system and did intend to retain them at an unauthorized location, which she did until she was forced to return them nearly two years after she left office. There is certainly circumstantial evidence of intent to retain and never return the material, had the existence of her server not been discovered. Asked about whether “keeping the servers at home … obviously is not in compliance with the department’s policies,” Comey answered “Yes.” In response to Rep. Buck’s proposition: “that [Clinton] knew that she didn’t have authority to have this server in her basement?” Comey replied: “Yes, that’s true.” Any reasonable person would have known that classified information would be “removed and retained” by Clinton’s secret server operation. Rep. Buck established this fact by asking: “as secretary of state, she also knew that she would be receiving classified information.” Comey replied, “Yes, in general.”
No Precedent, or Bad Precedent?
Representative Gowdy concluded his questioning by attacking the lack of precedent excuse that Comey gave for recommending against prosecution. Lack of precedent resulted from the fact that no prior Secretary of State had systematically removed their communications including the nation’s secrets from the State Department to their basement where secrets were insecure. Over their lifetime of scandals and corruption, such as the engine for global conflicts of interest labeled “The Clinton Foundation,” the Clinton’s atrophied ethics have always tended to break new ground. The sleaze that led to Bill Clinton’s historic impeachment was also unprecedented. The fact that there are no precedents for Clinton’s particular motive for secrecy resulted in her extraordinary conduct in pursuit of that secrecy.
Both Gowdy and Chaffetz turned the “no precedent” claim around against Comey, suggesting that instead of lack of precedent being an excuse not to prosecute, that Comey was himself making bad precedent by failing to prosecute on the ground of lack of intent. There is now no disincentive for Clinton or her staff or anyone else not to operate the same privatized communications system whether in the presidency or in any other high position of trust, provided they have the political clout to fix the FBI Director.
Artificially limited scope of investigation
Comey reported only three possible charges that could have been brought against Clinton or her aides: intentional or grossly negligent mishandling of “classified information,” both felonies under § 793(f); and knowingly removing and retaining classified information from appropriate systems, a misdemeanor under § 1924.
Comey indicated that his recommendation was limited to “laws governing the handling of classified information,” although the statute governing two of his possible charges, § 793(f,) does not mention classified information. He didn’t mention the various other laws implicated by Clinton’s mishandling of her emails, nor by her misstatements about it in various venues.
The FBI apparently did not record or take sworn testimony of its interview with Clinton, one of the most important interviews in the history of the FBI. So Comey’s subjective judgment that there was no evidence that she made false statements to the FBI, a charge the FBI can usually gin up in such a case, cannot be objectively tested because the interview was not recorded and there is no transcript of the interview. Rep. Mica requested the “302” account of the interview from Comey and this must be made public.
Comey admitted to the Chairman of the House Oversight Committee that the FBI did not investigate lies told to the Benghazi Committee under oath because it did not have a “referral” from Congress. Committee chair Chaffetz responded: “You’ll have one in the next few hours.” Will the FBI also need a referral to investigate the other possible crimes committed by Clinton with respect to her email practices? These would include possible violations of 18 U.S. Code § 641 (one who “disposes of any record … of any department or agency”); 18 U.S.C. § 1030 (1) (exceeding authorized access to computer to obtain government information “unauthorized [for] disclosure for reasons of national defense or foreign relations”); 18 U.S. Code § 1512(c) (one who “destroys, mutilates, or conceals a record … with the intent to impair … availability for use in an official proceeding,” such as a FOIA proceeding, perhaps?); 18 U.S. Code § 1519 (the same, evidence tampering, to “influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States,” like the Clinton Foundation charity conflicts of interest or bribery, perhaps?); 18 U.S. Code § 2232 (“Destruction or removal of property to prevent seizure”); and 18 U.S. Code § 2071 (punishing one who “takes and carries away any record … in any public office”).
The FBI’s “thorough” investigation, taking 3 years of workhours, did not cover Clinton’s associates who sent her classified information and who clearly did have specific intent about particular messages, as revealed when Rep. Massie inquired about “someone down the chain being investigated.” They also seemed to miss the State Department inspector general’s finding that Clinton “did not comply with the Department’s policies that were implemented in accordance with the Federal Records Act” and were therefore punishable under § 2071. See n. 41 and 44 U.S. Code § 3105(2). This potential violation was not within the scope of the FBI’s inquiry. Cf. Lynch (1:30)(“not under purview”) with Comey (Q: “did Secretary Clinton in fact comply with the department’s policies or the Federal Records Act?” Comey: I don’t think so.”)
Another matter raised at the hearings that Comey didn’t pursue was that Clinton may have had on her insecure secret server the names of covert CIA officers, the disclosure of which is a felony under the Intelligence Identities Protection Act.
Bernie Sanders has been preoccupied with convincing his followers that the Democratic Party platform is relevant, by performing his new role in the Kabuki theatre of the corporate Democrats. He is too busy acting out a supposedly important public debate over the irrelevant platform to get involved in this real and personal “servergate” example of impunity for plutocrats. Instead of leading his followers in calling for fair application of the law to his FBI-certified “extremely careless” rival, he was planning to endorse her for the Democratic Party nomination that was stolen from him, without effectively demanding party rules that would prevent current and future such election theft, and/or any other valuable bargaining chip in return.
Therefore, with the newly docile Bernie silenced from any effective action, it was left to Green Party candidate Jill Stein to point out, along with many others, that — aside from the above analysis of Comey’s legalistic obfuscation of the true legal meaning of and limited proof necessary for the element of intent – there was one violation that could be easily understood and accepted by all. “All the elements necessary to prove a felony violation were found by the FBI investigation, specifically of Title 18 Section 793(f) of the federal penal code…. Director Comey said that Clinton was ‘extremely careless’ and ‘reckless’ in handling such information. Contrary to the implications of the FBI statement, the law does not require showing that Clinton intended to harm the United States, but that she acted with gross negligence.”
Section 793(f) punishes anyone “entrusted with … any … information, relating to the national defense, [who] 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.” No one disputes that the FBI’s “extremely careless” and “reckless” factual findings, which Comey described as common-sense terms that mean “real sloppiness,” precisely satisfy this statute’s reduced intent standard of “gross negligence.” Comey explained that he did not want to apply these literal terms of a statute that reduces the ordinary element of intent to this lower standard, He asserted some institutional disagreement with the statute, although it matches the precise factual findings of the FBI and the law remains on the books to be used to intimidate others.
This stand by Comey. if legally mistaken, would risk violating the constitutional obligation of the executive branch to “take Care that the Laws be faithfully executed.” (Art. II, Sec. 3.) Unless Comey can now produce a cogent constitutional argument that requiring lesser intent in this statute is a violation of due process, then his refusal to indict presents a separation of powers crisis. There is no governing precedent permitting the Justice Department not to enforce this law because it disagrees with it. Congress should either amend the statute to conform it to constitutional principles or alternatively insist that it be enforced on pain of impeachment for failure to execute a valid law so the Supreme Court can decide the issue. Leaving an invalid law on the books after Congress has been formally told that the Justice Department refuses to enforce it is itself of constitutional concern.
Beyond the response of requiring the Justice Department to produce a fully articulated argument for unconstitutionality of the “gross negligence” standard to Congress, one capable of convincing Congress to repeal the law, this gross negligence issue is something of a red herring from the real issue that Comey has dodged: the existence of objective evidence necessary to prove the element of intent, by his confusion of intent with motive. As Rep. Gowdy accurately pointed out, the problem is that Comey is “reading a specific intent element into a gross negligence statute, not even general intent.” In other words Comey is using the standard deception technique of setting up a false dichotomy between specific intent, which none of the statutes support, and gross negligence, which Sec. 1924 supports. Comey is thereby trying to ignore the fact that what Gowdy calls “general intent” or the ordinary intent element of most crimes can be easily proven by the evidence of Clinton’s conduct. Comey has in fact invented his own statute that would require not just specific intent of some important factor, but specific intent with respect to each separate instance of mishandling of classified material rather than general intent for a pattern and practice that any reasonable person would understand would result in mishandling of classified information. No reasonable legislator would write such a statute.
It is unlikely that Comey’s highly flawed legal explanation for the FBI’s institutionally inappropriate spiking of the prosecution of Hillary Clinton will escape the political verdict rendered by Trump and others that it was “rigged.” Whether the motive for rigging was more anti-Sanders or pro-Clinton, Trump will be its main beneficiary. He would almost certainly lose to Sanders, while it is likely he will now be conveniently pulling ahead of Clinton in the final polls prior to his next hurdle, the July 18 Republican Convention. As the Wall Street Journal wrote, “Washington rewards officials who are best at currying public favor, best at surviving, best at creating unfounded legends.” Such an official who has “spent a lifetime with one eye on politics and one eye on his résumé would have behaved exactly as Mr. Comey did.”
It is clear that by eliminating Sanders’ last best hope for nomination Comey has significantly helped elect his future boss, of either party. But Clinton’s history suggests that there is more to this deal yet to be uncovered.
Rob Hager is a public interest litigator who filed an amicus brief in the Montana sequel to Citizens United and has worked as an international consultant on anti-corruption policy and legislation.
Wednesday, two shocking videos of police officers fatally shooting civilians (Alton Sterling and Philando Castile) surfaced. The day before, many were appalled to hear the Director of the FBI announce that Hillary Clinton would not be charged for mishandling classified information. The two events may seem unrelated, but at bottom, they concern the same fundamental problem: impunity.
Impunity is the essence of power. What, after all, is power? Is it simply the capacity to exert unjust force? The ability to impress one’s will upon the flesh or belongings of another? No, it’s more than that.
Most anyone can wield unjust force. Anyone could walk out onto the street right now and exert their will on somebody weaker: say, pushing over an old lady or stealing candy from a baby. And the toughest, or most heavily-armed guy in town can strong-arm just about any other single person.
But isolated incidents of aggression do not constitute power. The “reign” of the rogue rampager is generally short-lived. It only lasts until the community recognizes him as the menace to society that he is and neutralizes him.
Power isn’t simply about the exertion of unjust force. It is about what happens next, after the exertion. Does the perpetrator generally get away with, or not? Systematically getting away with it – or impunity – is where power truly lies. And that is what makes agents of the State different from any other bully. State agents can violate rights with reliable impunity because a critical mass of the public considers the aggression of state agents to be exceptionally legitimate. Impunity is power, and as Lord Acton said, power corrupts.
The Impunity of the Badge
State impunity is at the root of the problem of police violence. As agents of the exalted State, the police are seen as paladins of public order. The populace grants cops a special dispensation to commit violence that would be considered criminal if perpetrated by anybody else. This privilege is enshrined in law most clearly as the doctrine of “qualified immunity.” As Evan Bernick of the Institute for Justice wrote:
In the 1967 case of Pierson v. Ray, the Supreme Court held that police officers sued for constitutional violations can raise ‘qualified immunity’ as a defense, and thereby escape paying out of their own pockets, even if they violated a person’s constitutional rights.
When victims of police violence or their heirs seek redress and are awarded monetary payments, it is taxpayers, and not the cops, who pick up the tab. Police officers are rarely even prosecuted for violence inflicted while they’re on the clock. The worst that an offending officer can generally expect to face is getting fired, but he will more likely just get a paid suspension.
Thus insulated from responsibility, officer treatment of “mundanes” is predictably often grossly irresponsible. Confident in being sheltered from consequences by their “blue privilege,” officers are far more prone to indulge in lethal cowardice: to place “officer safety” so far above civilian rights that they are willing to gun down a stranger at the slightest whiff of potential danger. Alton Sterling and Philando Castile each carried a gun, as they have the natural right to do. Neither threatened the officers with his weapon, or even brandished it. Yet in both cases, merely becoming aware of the guns sent a cop into a murderous panic. Both Sterling and Castile were fatally shot multiple times in the chest.
The Impunity of High Office
State impunity not only corrupts the regime’s low-level enforcers, but its elite policy makers as well. The FBI let Hillary Clinton off the hook for secrecy violations she committed as Secretary of State, even though these were much more egregious than violations that have earned lower-level personnel decades in prison. She used technology that was more open to being compromised by spies and hackers, while at the same less open to legal and public scrutiny.
But the kinds of activities she was hiding are far more criminal than the fact that she hid them. As Secretary of State, Hillary Clinton played a key role in bringing war to such places as Libya, Syria, and Honduras, and in escalating the war in Afghanistan. She is complicit in causing untold death and misery.
Yet, thanks to her connections and her position in the state power apparatus, she faces no consequences for her crimes, and is free to acquire even more immunity and power as a likely President of the United States.
It is the “sovereign immunity” she enjoys as an officeholder that has made Hillary Clinton so reckless and cavalier about the havoc she has wreaked around the world. If she thought she might ever be held accountable for upending entire countries, she would have likely been far less warlike in her policies.
From policing to foreign policy, impunity corrupts, and absolute impunity corrupts absolutely.
The worst disservice Sanders has done to his supporters, other than to lead them on a wild goose chase for real change, is to virtually ignore his rival’s vaunted “experience.” He need not have mentioned Hillary Clinton’s Senate record, since there was nothing there; her stint as law-maker was merely intended to position her for a run for the presidency, according to the family plan. But there was a lot in her record as Secretary of State.
As she recounts in her memoir, she wanted a heftier “surge” in Afghanistan than Obama was prepared to order. Anyone paying attention knows that the entire military mission in that broken country has been a dismal failure producing blow-back on a mind-boggling scale, even as the Taliban has become stronger, and controls more territory, than at any time since its toppling in 2001-2002.
Hillary wanted to impose regime change on Syria in 2011, by stepping up assistance to armed groups whom (again) anyone paying attention knows are in cahoots with al-Nusra (which is to say, al-Qaeda). In an email dated Nov. 30, 2015, she states her reason: “The best way to help Israel…is to help the people of Syria overthrow the regime of Bashar Assad.”
In her memoir she criticizes Obama for not doing more to oust the secular Assad regime. She has repeatedly stated during her campaign that she favors a no-fly zone over Syria, like the one she advocated for Libya. That means conflict with Russia, which is bombing sites in Syria, with the permission of its internationally recognized government, under what Russia’s leaders (and many rational people) consider to be terrorists’ control.
Sanders–sorry, I cannot call him “Bernie” anymore, since he has become precisely as avuncular as Dick Cheney—could have effectively attacked Hillary the Skjaldmær (Old Norse for “Shield-maiden,” referring to an often berserk warrior-woman) for her role in the destruction of Libya. But no! Always referring to her deferentially as “Secretary Clinton”–as though her actions in that role merit respect—he rarely alluded to her greatest crime at all. That’s unforgivable.
(Yes, in one debate he mentioned Libya in passing–timidly, and with no follow-up. While he repeatedly mentioned how The Secretary had voted for the Iraq War and he hadn’t, he hardly exuded moral outrage about that or any other Clinton decision. His campaign was all about her Wall Street ties and well-paid, secret talks, the transcripts of which he once wanted to see but has now apparently lost interest. It was never about “foreign policy,” which is supposedly her forte. He may call himself a “socialist,” but he’s no anti-imperialist. He has voted in favor of every “defense spending” bill, supported the NATO assault on Serbia in 1999, supported Israel’s attack on Gaza in 2014, etc.)
He could have attacked Clinton savagely–with the savagery of mere matter-of-fact honesty–by citing those emails exchanged between Clinton and her vicious confidant and former adviser Anne-Marie Slaughter, in which the latter—under the subject line “bravo!”–congratulates her on engineering Obama’s agreement for the bombing of Libya. (On March 19, 2011, as the bombing of Libya began, Slaughter wrote: “I cannot imagine how exhausted you must be after this week, but I have NEVER been prouder of having worked for you. Turning [Obama] around on this is a major win for everything we have worked for.”
He could have quoted that email from Sidney Blumenthal, that Svengali figure who has long been Clinton’s unofficial mentor (along with Henry Kissinger and others): “No-fly! Brava! You did it!” (Brava, if you’re interested, is the feminine form of Bravo.)
He could have repeatedly used that damning clip that reveals Hillary’s joy at the grotesque murder of Muammar Gaddafi–who had become a friend of Tony Blair, Silvio Berlusconi, and the CIA as of 2011–at the hands of Islamist thugs, who rammed a stick and knife up his anus on camera just to make it more humiliating. His ads could have started with some appropriately edited version of this:
And ended with this:
And left the people to draw their own conclusions.
He could have asked, “Why the hell did you appoint Dick Cheney aide Victoria Nuland as Under Secretary of State for Eurasia, and support and fund that coup in Ukraine in 2014 in your goddamn ambition to expand NATO?”
But no. He didn’t have it in him. And now he wants his youthful erstwhile followers to transfer their support to someone who is not only the embodiment of Wall Street, with all its blood-sucking and all its crookedness, but the personification of U.S. imperialism in an era when its depth of crisis has produced a state of perpetual war.
Savvy people in Syria and elsewhere surely understand what the Sanders endorsement means: Syria is the next Libya.
Hillary in the Oval Office, Binyamin Netanyahu at her side, will laugh as Assad gets her knife up his ass, chaos deepens, the draft is re-instated, and boys and girls–of all ethnicities, gay and straight together–march off to fight the Brava Wars drastically reducing youth unemployment and making legions more eligible for the GI Bill.
Even if Sanders doesn’t vote for the war (and why should there be a vote, after all, in this post-constitution era?), he will share responsibility.
Shame! And shame on any once “Bernie” supporter who follows him into his moral morass.
*****Feel the burn. The burn of the rigged system. Why be drawn into it—the object of Hillary’s praise, for switching so readily from him to her (for the sake of “unity”)?
What is there to unite with, but more corruption, exploitation, and wars based on lies?
The votes that matter are the votes on the street. Either Trump or Clinton will provoke mass upheaval. The key contribution of the Sanders campaign has been to lay bare for idealistic youth the magnitude of the rot in the system itself, while raising (however dishonestly) the prospect of “political revolution.”
It’s the hope Sanders has sold out. But yes, that’s what we need. Social, economic, and political revolution. Too bad he’s chosen the other side.
Gary Leupp is a Professor of History at Tufts University, and author of numerous works on Japanese history. He can be reached at: firstname.lastname@example.org
A majority of Americans believe that the FBI should have recommended charges against Hillary Clinton for her handling of classified emails while secretary of state, according to a new poll.
In the new Washington Post/ABC poll released Monday, 56 percent of respondents disapproved of FBI chief James Comey’s decision not to indict Hillary Clinton, and only 35 percent said that they approved. Similarly, 57 percent said that the fiasco makes them worried about Clinton’s behavior if she were elected president, while 39 percent didn’t have their opinions changed in this regard. Forty-three percent, however, said that the incident makes them “very worried” about how she might act.
A majority – 58 percent – said that the private email affair wouldn’t sway their vote in the 2016 presidential election, while 28 percent said that they are now less likely to support her and 10 percent said it makes them more likely to do so.
The poll found opinions of the FBI’s decision were divided along party lines. Ninety percent of Republicans said that they thought Clinton should have been indicted, and perhaps a surprisingly high number of Democrats – 30 percent – said the same.
Forty-seven percent of Republicans said that the issue is less likely to make them less inclined to support her.
Among Democrats, the email issue makes no difference to 74 percent, and has 16 percent the issue has strengthened their support. Ten percent of Democrats say they’re less likely to vote for her because of the FBI’s decision, however.
Wrapping up a nearly year-long investigation of Clinton, FBI Director James Comey announced that the agency would not recommend charges against Hillary Clinton for her alleged mishandling of high sensitive communications on an unsecured server during her tenure as secretary of state. However, he did call the behavior of Clinton and her staff “extremely careless.”
Attorney General Loretta Lynch agreed with the FBI’s recommendations and did not indict Clinton. A day later, the State Department said that it will reopen its own internal investigation of the former secretary of state in light of the new facts.
The Washington Post/ABC News poll was conducted July 6 to 7, and it surveyed a random national sample of 619 adults. The margin of error is 5 percentage points.
What was your reaction when you heard FBI Director James Comey announce to the world that the Bureau would not be recommending that charges be filed against Hillary Clinton over her handling of emails while she was Secretary of State? Did you do a humorous spit take with your coffee like some modern day Danny Thomas? Were you frozen in place like Americans were on November 22, 1963? Did your jaw hit the floor with your tongue rolling out like a flabbergasted cartoon character?
Chances are you weren’t the least bit surprised that no charges were recommended. But what does that tell you about our political system?
That millions of Americans weren’t remotely caught off guard by the exculpation of Hillary Clinton is less a commentary about American attitudes than it is a clear indication of the all-pervasive criminality that is at the heart of America’s political ruling class. And the fact that such criminality is seen as par for the course demonstrates once again that the rule of law is more a rhetorical veneer than a juridical reality.
But consider further what the developments of recent days tell us both about the US and, perhaps even more importantly, the perception of the US internationally. For while Washington consistently wields as weapons political abstractions such as transparency, corruption, and freedom, it is unwilling to apply to itself those same cornerstones of America’s collective self-conception. Hypocrisy is perhaps not strong enough a word.
Not Even Hiding It Anymore…
Remember the good old days when corrupt politicians committed their crimes in smoke-filled rooms, making handshake deals in quiet corners of luxury hotel suites or over lobster at five star restaurants? Those things certainly still happen, but the transgressions, like all things, seem to have lost a bit of their classiness. It may not be the Plaza Hotel, but the Phoenix airport was no less a scene of wanton lawlessness and impropriety when former President, and soon to be First Gentleman, Bill Clinton met privately with Attorney General Loretta Lynch.
The meeting, which only came to light thanks to the work of local ABC15 morning anchor Christopher Sign, has been widely criticized by pundits and legal experts from both sides of the political spectrum. Naturally, questions about impropriety, and potential illegal tampering in a federal investigation, were immediately raised once the meeting was made public. Of course, nothing was done to alleviate any of those concerns, calling into question the very impartiality of the investigation.
But the larger story has to do with symbolic message being sent by the meeting. Specifically, there is one set of laws for American citizens, and an entirely different set of laws for political elites like the Clintons.
Moreover, there’s more to it than just criminality. There is the air of superiority which oozes from every action taken by the Clintons who have made hundreds of millions of dollars unscrupulously pandering to, and serving the interests of, the financial elite of Wall Street and the corporate oligarchy. That feeling of invincibility is what drives someone like Bill Clinton to demand that the FBI surrounding him at the Phoenix airport dictate to bystanders that there are to be “no photos, no pictures, no cell phones.” To make such a demand is to see oneself as above the law, above the First Amendment, above the plebs, as it were.
And this sort of behavior is what we’ve come to expect from the Clintons. Who can forget the seemingly endless rap sheet that the dynamic Democrat duo has earned over the decades? The Whitewater Scandal, in many ways a template for the Clinton email scandal, involved shady business practices and political insider dealing by the Clintons and their real estate developer cronies. And, like the email scandal, Whitewater was an example of the Clintons deliberately destroying records that likely implicate them in very serious crimes.
As the New York Times reported in 1992, “The Clintons and Mr. McDougal disagree about what happened to Whitewater’s records. Mr. McDougal says that at Mr. Clinton’s request they were delivered to the Governor’s mansion. The Clintons say many of them have disappeared. Many questions about the enterprise cannot be fully answered without the records.”
So it seems the Clintons have this nasty habit of committing crimes and then destroying the records of those crimes and claiming complete ignorance about what happened. For you and me, such a flimsy excuse would go over like a lead balloon, likely leading to jail time. For the Clintons, the controversy quietly fades away and slips down the memory hole.
And then of course there’s the mysterious death of Deputy White House Counsel Vince Foster, the man who filed three years of delinquent Whitewater corporate tax returns, and then was subsequently found dead a month later. While his death was officially ruled a suicide, the serendipitous development for the Clintons led to speculation that Foster was killed on the order of the Clintons in order to silence a potentially damning source of information about Clinton misdeeds.
Indeed, some claim that evidence exists that Foster was in fact murdered, including the statements from one of the lead prosecutors investigating the death, Miguel Rodriguez, who claims that photos showed a gunshot wound on Foster’s neck, a wound that was not mentioned in the official report. Whether true or not, the speculation about the Clintons’ involvement in a political assassination has only grown.
But of course there are so many more scandals it’s hard to keep count. From appointments of Clinton Foundation donors to key State Department positions in a sort of “pay for play” scheme, to the salaries paid to people like Hillary’s Deputy Chief of Staff Huma Abedin who, while working for the State Department, also worked for Teneo, a consulting firm run by another close Clinton crony. And who could forget the Clinton Foundation and the myriad conflict of interest issues, lack of transparency, and outright criminality associated with it?
This article would go on for tens of thousands more words were it to chronicle all of Clinton’s scandals. But the true focus here is not even simply on Clinton crimes, but rather on the culture of corruption and lawlessness that exists unfettered in Washington; it is the endemic corruption that the Clintons represent, perhaps better than anyone.
Corruption and Malfeasance: As American as Apple Pie
It is difficult to encapsulate in a few short paragraphs the multi-layered forms of corruption that are embedded in the very fabric of America’s political culture. Perhaps it could be best separated into three distinct, though interrelated, categories: the open door, the closed door, and the revolving door.
The open door of corruption and criminality represents the kind of wrongdoing that takes place out in the open, in full view of the public, but which is treated as anything but criminal. Whether it be lying the US into wars of aggression – the Iraq War was based on lies about weapons of mass destruction, the war on Libya was sold on the pretext of lies about civilians being murdered by the government – or simply the obviously corrupt form of campaign financing that allows Wall Street and the corporate elites to bankroll the alleged “democracy” that the US so proudly proselytizes the world over; these forms of corruption and criminality are in many ways the bedrock of American politics.
As the International Military Tribunal at Nuremberg famously stated, “To initiate a war of aggression… is not only an international crime; it is the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole.” By this very definition, every political leader in the US going back decades is guilty of war crimes.
Going further, one can draw on the legacy of Franklin Roosevelt who, in a now legendary speech at Madison Square Garden in 1936, unequivocally proclaimed:
We had to struggle with the old enemies of peace–business and financial monopoly, speculation, reckless banking, class antagonism, sectionalism, war profiteering. They had begun to consider the Government of the United States as a mere appendage to their own affairs. We know now that Government by organized money is just as dangerous as Government by organized mob. Never before in all our history have these forces been so united against one candidate as they stand today. They are unanimous in their hate for me–and I welcome their hatred.
But today, rather than welcoming the hatred of Wall Street and the corporate oligarchy, America’s politicians pander to them, grovel before them, kiss their rings in hopes of securing for themselves a financially and professionally lucrative future. So deep is the rot that most Americans passively accept this as business as usual, failing to understand that it is anything but acceptable.
The closed door forms of criminality are often completely concealed from public view, and what does become known is only thanks to courageous actions by reporters and whistleblowers. Take for instance the activities of the CIA, only a fraction of which were exposed by the Church and Pike Committees, which included obviously criminal activities ranging from the overthrow of governments to assassination of political leaders to domestic spying and propaganda, all of which being blatantly illegal.
But the closed door also conceals the activities of prominent political figures such as Hillary Clinton, whose secret lobbying for things like right wing coup governments in Honduras, shows the degree to which politicians literally conspire in secret. Clinton, like so many of her colleagues, also grovels at the feet of Wall Street financiers, including taking massive payoffs for speeches with the tacit wink-wink-nudge-nudge that goes along with them.
Finally, the revolving door is one of the shining examples of America’s political corruption, or perhaps better put, complete subservience to the corporate oligarchy. When key government officials leave public life and head to that oft-lionized “private sector,” what they are actually providing is access – access to government for corporations and capital.
When the head of the Centers for Disease Control (CDC) leaves her government post and takes a job as President of Merck & Co. Inc’s vaccine division, no one bats an eye.
When the architect of Obamacare, who before working on the health plan was an executive at one of the nation’s largest health insurance providers, leaves her government job and takes a position with Johnson & Johnson’s government affairs and policy group, it garners barely a passing comment.
When Wall Street executives take positions at head of the Treasury Department – Tim Geithner and Hank Paulsen both worked for Goldman Sachs, as just one example – it is simply “the way things are.” This revolving door form of political corruption may not be anything new, but it is so rarely defined as corruption. But that’s exactly what it is.
However, none of this prevents Washington from publicly admonishing other countries for their corruption problems. Russia? Zimbabwe? Venezuela? China? Nigeria? All corrupt. United States? Well, er, ummm… Democracy! Freedom! This is the sort of reflexive hypocrisy that typifies American exceptionalism or, as the rest of the world might call it, the arrogance of empire.
Hillary Clinton may or may not be a crook. That remains to be proven, though the sheer magnitude of the wealth that she and husband Bill have amassed since leaving the White House, and while she was serving as Secretary of State — nearly a quarter of a billion dollars earned by two people with no known skills capable of producing that kind of income — should raise questions. What can be stated now as fact though, is that Hillary is a serial liar.
If this wasn’t clear already from her long history of distortion and prevarication — like her false claim that she had to “duck to avoid sniper fire” during a state visit to Bosnia — it is clear now from FBI Director James Comey’s 11-page public report on his agency’s year-long investigation into her use of a private server for all her private and official emails during her term as Secretary of State.
That report has exposed her serial lying to both Congress and the public about that illegal use of private email service to handle her public business.
As the Associated Press reports, Clinton lied in March 2015 when she declared in one of her rare news conferences, “I did not email any classified material to anyone on my email. There is no classified material.”
But as Comey reports, she did. Quite often in fact. The FBI in its exhaustive investigation found at least 113 email chains –some of which had to be uncovered after they had been erased by Clinton’s private lawyers — contained material that was classified at the time of sending, including some that were classified Top Secret and that referred to a “highly classified special-access program.”
She lied again at that same press conference when she asserted, “I responded right away and provided all my emails that could possibly be work related” to the State Department.
Not true, according to the FBI, and also, of course, to the Inspector General of the State Department, with whose own investigation of her actions, Clinton simply refused to cooperate.
Clinton lied when she said earlier this month, in an NBC interview, “I never received nor sent any material that was market classified.” Comey says that in fact her system did handle emails that bore specific markings indicating they were classified.
Clinton lied when she tried, as she explained more than once, including in that same March 15 news conference addressing the issue, to claim that she had used her own Blackberry phone rather than a State Department secure phone, simply because she “thought it would be easier to carry just one device for my work and for personal emails instead of two.” In fact, Comey said his agents determined that Clinton had “used numerous mobile devices to view and send email,” all using her personal account. So much for wanting to use “just one device”! Comey said she also had used different non-government servers, all of them vulnerable to hacking.
Clinton lied again when she claimed that her private server was on “property guarded by the Secret Service and there were no security breaches.” She lied again when she added, “The use of that server, which started with my husband, certainly proved to be effective and secure.” Her campaign website adds the equally false assertion that “There is no evidence there was ever a breach.”
In fact, all Comey will say is that the FBI did not uncover a breach, but he adds that because of the sophisticated abilities of “hostile” forces (i.e foreign countries’ intelligence services) that would be engaging in any such hacking, “We assess it is possible that hostile actors gained access to Secretary Clinton’s personal email account.” They would just not leave any “footprints,” he explains.
We also know Clinton was lying when she said, “I opted for convenience to use my personal email account, which was allowed by the State Department.” The falsity of that particular lie was exposed by the State Department Inspector General, who in his own report on her private server scandal, found that she had never “sought or received approval” to operate a private server for her State Department communications, and added that as Secretary of State, she “had an obligation to discuss using her personal email account to conduct official business with State Department offices.”
Some of these violations that Clinton has objectively lied about may not be crimes. Others clearly are. At a minimum, Clinton deliberately sought to violate the requirements of the Freedom of Information Act, which make all but classified documents public records that are supposed to be made available on request to journalists and the public on request (and even many secret documents upon appeal). By conducting her official business on a private server, Clinton was assuring that no FOIA requests could touch her.
The question of Clinton’s “trustworthiness” is a huge issue among the public, with all but her die-hard supporters — a minority within the Democratic Party.
Maybe some people don’t care in these cynical times when it’s simply assumed that “all politicians lie,” but one hopes that those lies will relate to personal foibles and sins, not official business. A nation that celebrates great leaders like George Washington, who at least according to the national mythology once said, “I cannot tell a lie,” and Abraham “Honest Abe” Lincoln, for their integrity and forthrightness, surely can demand at least a semblance of truthfulness in its top leader.
Clearly Hillary Clinton has failed that test of leadership, and in a big way.
I’m concerned that the FBI and the State Department’s own Office of Inspector General, as well as Republicans in Congress, have missed the real import of Clinton’s lying. It is not that she violated rules and standards that may have led to national security secrets being hacked, serious though that may be. For one thing, powerful intelligence agencies like those of the Russians and Chinese, just like the US’s own National Security Agency, have the capability to hack even the government’s most secure servers.
What should really be getting asked, by government investigators, political critics and by any real journalists left out there, is why Clinton, as Secretary of State, was so insistent — even to the point of violating laws and State Department policies — on avoiding the reach of the Freedom of Information Act (FOIA). The answer to that has to take us back to the reality of the Clinton’s phenomenal success at vacuuming up vast sums of money from wealthy individuals, corporations, and even foreign potentates, both for their personal accounts as when either Clinton speaks at gatherings of bankers, pharmaceutical executives or military industry leaders, and for their Clinton Foundation, reportedly the recipient of over $2 billion in corporate and foreign government largesse.
Their success at raking in such piles of cash reeks of influence peddling, probably much of it conducted by phone and by email — and it’s the kind of thing that, if it were done by a Secretary of State on a government electronic device, would be vulnerable to a FOIA request.
On a private server, it’s the type of communications activity that Hillary Clinton’s private attorneys would have “wiped” from her hard drive to escape scrutiny when they erased thousands of emails they determined, with no official backstopping, to have been “private.”
Comey was wrong to recommend no prosecution of Clinton for her email practices, since some of her own State Department employees, as well as employees of the CIA and other agencies have been charged with and convicted of felonies for the same and even lesser infractions. But Clinton, as a Secretary of State and as the likely Democratic Party candidate for president, clearly lives on a higher plane that operates under a different set of rules. Only the “little people” get called to account for such crimes in the United States.
If the severely compromised US “Justice” Department cannot step up and issue an indictment based upon the findings of the FBI about Clinton’s email violations, it is up to the people of the United States to decide whether we want such a greedy woman — a confirmed serial liar ready to say anything necessary to obtain power — to be our next president.