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Clinton Should Have Been Prosecuted for Willful Gross Negligence

In at least two instances, there were classified markings on the messages.

Clinton Should Have Been Prosecuted for Willful Gross Negligence

Clinton Should Have Been Prosecuted for Willful Gross Negligence

by Guy Benson

(Townhall) – Late last week, as the furor over the Inspector General report was raging, I devoted a fair amount of my radio show to arguing that Hillary Clinton should have been charged and prosecuted over her email scandal — the DOJ’s handling of which was the subject of the IG’s findings.  I’ve already written extensivelyabout Mrs. Clinton’s egregious misconduct, highlighting the reasons why it wasn’t just a series of stupid mistakes, and pushing back against unpersuasive arguments about the nature of her actions.  It seems as though this same sticking point has also been bothering Harvard-trained attorney, former JAG officer, and former Cornell Law School lecturer David French, who made his case for prosecution at National Review Online on Friday.  His indictment, rooted in personal experience and deep understanding of the relevant statutes, is compelling:

After reading the analysis, I just flat-out don’t buy that Hillary’s conduct — and her senior team’s conduct — didn’t meet that standard. The key reason for my skepticism is the nature of the classified information sent and received. Remember, as Comey outlined in his infamous July 5, 2016 statement, Hillary sent and received information that was classified at extraordinarily high levels…If you’ve ever handled classified information, you understand that there are often judgment calls at the margins. When I was in Iraq, I often made the first call about classification. In other words, I determined whether to send information up the chain via the unclassified system (NIPRNet) or the classified system (SIPRNet). Entire categories of information were deemed classified by default. Other categories were commonly unclassified. But sometimes, I had to make a choice. And sometimes, the choice wasn’t clear.

The lack of clarity, however, wasn’t between unclassified and Top Secret. Much less between unclassified and Top Secret/Special Access Program (TS/SAP). There might be tough calls between unclassified and confidential — or maybe between unclassified and secret. But the gap between unclassified and Top Secret, much less SAP, was and is vast, yawning, and obvious. In fact, the IG noted that “some witnesses expressed concern or surprise when they saw some of the classified content in unclassified emails.” I bet they did…It’s important to remember that one can’t generally simply copy/paste or forward emails from classified to unclassified systems. (That’s likely why the emails on her homebrew system didn’t contain classified headers.) A person has take information from one source and summarize it or painstakingly type it out on another platform. All of that takes effort. All of it requires intention.

‘Over-classification’ may be a real issue, but as French states, the problem here was not “at the margins.” Obviously and very highly classified material — including about dealings with Iran and North Korea’s nuclear program — were sent and received through Hillary’s bootleg server, to the point that some witnesses were shocked to learn about the type content that was recklessly compromised.  As for his point about the effort and intent that’s required to move classified information from a classified system into an unclassified one, that was illustrated in stark relief by Hillary’s own virtual paper trail in at least one case, in which she ordered a subordinate to strip the ‘identifying heading’ from a classified memo and send it over regular email, “nonsecure.”  Hillary repeatedly claimed that none of the emails on her server were classified (a laughable lie), then switched to saying none were classified at the time they were disseminated (also a lie).  Desperate, she then turned to arguing that none were marked classified at the time they were disseminated.  

This distinction is irrelevant, a misleading tautology, and also a lie.  It’s irrelevant because she signed a binding nondisclosure agreement, under penalty of perjury, that it was her duty to recognize and safeguard classified information, explicitly marked and unmarked as such.  Go back and read French’s argument about why the top secret and Special Access Program content was unambiguously classified.  She knew better.  It’s a misleading tautology because in any cases, in order for emails to be marked as classified, they would have to go through a review process.  In the vast majority of instances involving her home-brew server, emails were never reviewed (and therefore never marked) because the official system was bypassed; that was the whole point.  It is also a lie because in at least two instances, there were classified markings on the messages.  Hillary told investigators that she didn’t know what they meant.  They didn’t believe her because her explanation was insultingly absurd.  But they couldn’t definitively prove that she was lying.  I repeat: All of this required intent and constituted extreme recklessness that rose to the level of gross negligence.

French also writes, “the IG time and again noted that (among other things) the FBI focused on the apparent lack of intent to violate the law and the lack of a clear precedent for initiating a prosecution under similar facts. It also describes how the FBI wrestled with the definition of ‘gross negligence’ — concluding that the term encompassed conduct ‘so gross as to almost suggest deliberate intention’ or ‘something that falls just short of being willful.'” Even though the portion of the Espionage Act that applied to Hillary’s actions does not call for proof of intent to merit charges, that was the standard Comey decided to consider (and defensibly so, according to the IG).  I’d therefore like to close with three more observations about Mrs. Clinton’s demonstrable intent:

(1) The initial act of going through the hassle and process of establishing a private, off-book email server practically screams intent. Clinton’s motivation was very likely to work around official channels in order to exert full control over the flow of information (even while making it much easier for hostile actors to penetrate) vis-a-vis public records requests.  She was planning on running for president again, and wanted to be able to use email in such a way that was convenient for her, but impervious to oversight.  If and when she needed inconvenient emails do disappear, she controlled the server on which they were housed, and she could destroy them as needed.  She ended up doing precisely that, too, deleting thousands of emails — many of which were never recovered.  She lied about whether any of them were work-related (a large number were, and at least three were classified).  She also lied aboutwhy she installed the server in the first place.  Her provable lies purporting to explain her actions further legitimize the more cynical explanations and point to intent.

(2) Within three weeks of the existence of Clinton’s rules-breaking, unsecure server being publicly exposed, an underling destroyed the contents of her inbox and used a digital tool called BleachBit to permanently wipe the server clean. He later told FBI agents that this was precipitated by an “oh sh*t” moment.  Again, Clinton proceeded to lie about the nature of those deleted emails.  This is the destruction of evidence, followed by lying about what had been destroyed.  Short of a video recording of Mrs. Clinton stating, “I intend to handle classified material in a grossly negligent manner,” what more is needed to divine intent?

(3)  All the lying matters.  As Trey Gowdy so skillfully demonstrated in his grilling of Director Comey under oath, prosecutors often use “false exculpatory statements” — i.e. lies — to prove criminal intent.  It’s arguably true that Mrs. Clinton may not have verifiably lied to the feds (though she was almost certainly misleading in some answers, and FBI agents believed that she’d lied to them).  But it’s unquestionably true that she lied, routinely and brazenly, to the American people about these matters.  When you add the reams of false exculpatory statements on top of Clinton’s willful act of commission (ordering the server be installed), and the deliberate, frantic destruction of important evidence that could have shed further light on the extent of her recklessness, the “intent” picture looks quite clear.  James Comey gave Hillary the ultimate gift by declining to recommend charges, despite his subsequent actions and decisions that harmed her campaign. 


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6 Comments on Clinton Should Have Been Prosecuted for Willful Gross Negligence

  1. The puzzle pieces…. Through Ultra decrypts of German radio communications, the British learned that one Franz Oster was being transferred to Foggia on the Italian Adriatic. No big deal ? The transfer of a single German ? However, Looking Oster up in their meticulously compiled order of battle files, he emerged as an Todt organization civil engineer, specializing in airfield construction. He had already supervised the construction of several airfields in Italy. Yup, the Germans were about to build another field, at Foggia.

  2. We could shift the focus of this discussion away from Clinton’s “Extremely careless” handling of classified material and look at her indiscretions from a human angle. How many of our undercover “Assets” were fronted off and caught due to such fecklessness ? The great fear looming over the head of any spy or undercover who operates in enemy territory is a betrayal by their own handlers. Will their position be revealed by stupid or careless people on their side ? It doesn’t take much – hostiles could have gleaned many puzzle pieces from such poor security. Assembled into a picture, such bits of information, would point to someone – a spy – in their ranks. Needless to say, once the hostiles are on their trail, they will leave no stone unturned to identify the Traitor. I wish this line of investigation would be pursued, as the story of one or two people caught – and no doubt executed – as a result of Clinton’s idiocy would make her responsible for their death.

    • One of many instances probably. Our Embassy in Libya was attacked and overran in 1979:

      …luckily there was a back door the staff was able to escape through; not so for three people in our embassy in Pakistan who died in 1979 when our embassy was overran there.

      So when Hillary infamously said about the 2012 attack leading to Ambassador Steven’ death, “What does it matter now? We should be concentrating on how to not let it happen again.”

      No Ma’am, it HAD already happened before. What you are saying is we should not let it happen a THIRD time.

      How many of the people who attacked our embassy in 2012 in Libya were relatives of those who attacked out embassy in 1979? How many of them grew up listening to tales of the attack in 1979?

      Fecklessness, shallowness, “instant gratification”…anything for Hillary just to get that next injection of power. Criminally insane is what she is.

  3. Just looking at her picture gets me pissed off. The best she would ever look to me would be wearing an orange jump suit. And her cell mate should be debbie wasserman schults.

  4. The details of what a “Publicly Exposed” computer means clearly leads to the conclusion of “intent” at the worst or “negligence” at the best.

    First, the modem (ISP) at Hillary’s house probably had a static IP (e.g. a number in the form like That means anybody who knew that IP could make requests of that modem on any of the wide range of Ports.

    For email, common ports used are 25, 110, 465, and 587. If the ports for email were the only one’s open that would be a fairly secure server. Secure in the sense of being accessed over the internet; being in a bathroom closet is not especially a physically secure place.

    Other ports commonly used are HTTP=80, HTTPS=443, Remote Desktop=3389, FTP=21. There are more and there is lots of room to maneuver for an IT Administrator to determine which ports are open to the internet…and vice versa..all other ports should be closed and locked out.

    Which brings up a question about the phrase “email server”. Does that mean a computer that had the actual Email Server Software installed on it? Or does that mean it was just a computer Hillary accessed email from with an Email Client like Microsoft Outlook or a Webmail interface.

    If it was truly an Email Server that means that a Domain Name (URL) most likely was registered with ICANN to support the friendly email names like (…and the URL would be pointed at the static IP of Hillary’s ISP modem.

    More perspective, the IT and Security Administrators at the State Department are going to be monitoring the URLs and IPs in play on their networks to make sure no subversion is going on. At one level everything might seem private; but at another level, especially on government networks, there are watchers and logs been accrued.

    Moreover, who does not backup their computer to an external drive these days? So not only would the computer have to be scrubbed there mostly likely is an external USB drive that was scrubbed.

    All of this has to happen either by being aware of the details or by Hillary just saying, “make it happen”. Either way, given the special considerations of the material being sent to and from that computer, there was either “intent” or “negligence” in how the sensitive material was dealt with.

    Worse case, the Remote Desktop port was left open, Remote Desktop capability was turned on the computer, the Username/Password was hacked, and the Hacker was able to use the Computer just like they were sitting in front of it.

    Note: This presumes this Email Server had it own dedicated ISP modem. If there was just one ISP Modem for the entire house and this Email Server was networked via a router to all other computers, then, this adds more dimension to the issue. AND, that also means there is a high probability all other computers were compromised.

    NOTE: Even though the computer was scrubbed the Modem is where the ports are opened and closed. It would be interesting to learn what ports were open to the Public on that Modem.

    • There are even more details about how an Email Server is secure or not.

      Let’s assume the best case scenario that there was a dedicated ISP and only the ports for Email were opened. (Note: There is port open/close capability at the ISP modem and the Windows Firewall).

      Email Server software is usually licensed for a number of Domains/URLs and/or Emails. Like 50 Domains and 250 Email addresses. If Hillary had this set up for 1 Domain and 1 Email address…that is quite a bit of unused capability. Experience says there were more emails setup on that email server.

      Moreover, there is something about the Administrator of that computer and Email Server Software that everyone should know.. The people who have administrator access can very easily look at your InBox while the emails are still on the server and read them. That goes for any Email Server software whether hosted by GMail, Hotmail or anyone else. The people who administer your Email Server software can read your email.

      There is also a setting called “Leave a Copy on the Server”…which means that when your client software (like Microsoft Outlook) or your iPhone connects to the Email Server and downloads the emails…a copy is either left on the Email Server or not…depending on how that setting was set.

      Which brings up the point…all those Client applications…laptops, computers, and iPhones…have downloaded copies of the emails. So not only is the Email Server a point of question…so is all those Client applications which downloaded the emails.

      Back to the Administrator of the Email Server, since he had the capability to read Hillary’s emails while they were on the Email Server…did he have security clearance to view the secret stuff Hillary sent to that Email Server?

      It is highly likely Hillary’s Email Server did have the Remote Desktop port and availability setup so the Administrator could just login and make changes as needed to the Email Server…the alternative to that would be that the Administrator would actually have to visit Hillary’s house to make updates.

      And what about provable Anti-Virus and Malware software? Either this Email Server was hacked by direct brute force password discovery…or it was gained by a virus or malware being setup on the computer. What protections against brute force attacks, viruses, and malware were provably employed? (Note: There is always the possibility access was given the computer voluntarily which would amount to treason.)

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