FBI Director James Comey ignored myriad foundation legal maxims in recommending that Hillary not be indicted over her email scandal — for conducting all her official electronic business during her State tenure on her homebrew server. In a display of her brazen contempt for rules on handling classified data, Hillary had her folks set up her server on the same day (Jan. 13, 2009) that she first appeared before the Senate Foreign Relations Committee for confirmation as secretary of state — ONE WEEK BEFORE PRESIDENT OBAMA WAS SWORN IN FOR HIS SECOND TERM.
“Equal Justice Under Law.” This is the motto that decorates the main portico of the Supreme Court’s façade.
“The law is no respecter of persons.” On October 17, 1974, President Gerald R. Ford testified before the House Judiciary Committee, concerning his decision to pardon Richard Nixon, shortly after Nixon resigned to avoid impeachment and removal from office due to his role in the cover-up of the Watergate investigation. Ford’s testimony elicited this exchange with Indiana Rep. David W. Dennis, who had voted against the articles of impeachment:
CONGRESSMAN DENNIS. You have heard the maxim that the law is no respecter of persons. Do you agree with that?
THE PRESIDENT. Certainly it should be.
CONGRESSMAN DENNIS. Thank you, Mr. President.
“No one can be the judge in his own case.” Hillary engaged in massive “spoliation” — destroying evidence in violation of federal records retention law; the prosecution can easily argue that defendant’s engaging in such conduct shows consciousness of guilt.
To intend an act is to intend its reasonable and foreseeable consequences. A federal appeals court, in In re Jacqueline Duncan (2006), applied this bedrock principle of accountability under law, via this language:
A course of action which shows actual or deliberate intention to harm or which, if not intentional, shows an utter indifference to or conscious disregard of a person’s own safety and the safety of others.
Hillary emails already disclosed show that Hillary used her non-secure personal Blackberry while traveling inside Russia and China, two nations at the top of the unfree world in cyberwar capabilities. Much is made of the FBI finding no evidence that her servers were compromised by hostile foreign states. Of course they didn’t find evidence of such compromise, because:
WITHOUT SPECIAL SECURITY SOFTWARE HILLARY’S SERVERS COULD NOT DETECT SOPHISTICATED CYBER-INTRUSIONS.
A cyber-expert (same link) had this to say of Hillary’s overseas use of unsecured devices:
Unencrypted IT systems don’t need ‘hacking.’ Ms. Clinton’s ‘private’ email, which was wholly unencrypted for a time, was incredibly vulnerable to interception, since it was traveling unprotected on normal commercial networks, which is where [signals intelligence] operators lurk, searching for nuggets of gold.
A “specific phone number, a chatroom handle, an email address” would be the equivalent of “waving a huge ‘I’m right here’ flag at hostile intelligence services.”
So what has Our Lady of the Wayward File Server told us about this? In a September 2014 interview with radio talk show host Hugh Hewitt she said this:
Every time I went to countries like China or Russia, I mean we couldn’t take our computers, we couldn’t take our personal devices, we couldn’t take anything off the plane because they’re so good. They would penetrate in a nanosecond. [Italics mine.]
Note here her own choice of estimated time to penetration: in a nanosecond. This clearly shows Hillary was made keenly aware of massive, continual efforts by Chinese cyberwar personnel to penetrate the devices of senior U.S. officials. The same would of course be true as to the Russians.
Government officials have a duty of loyalty to their employer. Yet here is the FBI director on why he allowed Hillary to skate:
Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past.
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.
Here is how one online source describes (in pertinent part) an employee’s duty of loyalty to an employer:
Employees’ duties to their employer include the duty of loyalty. The laws in every state require that an employee refrain from behaving in a manner that would be contrary to his employer’s interests, an obligation often given the shorthand name “duty of loyalty.”
The degree of that duty of loyalty is related to the degree of responsibility and trust that an employer gives to an employee. In some cases, when an employee has extensive independent responsibility or access to confidential information, the duty can rise to a higher — or fiduciary — level.
Once employees move into the area of fiduciary responsibility, they must handle their employer’s matters with the highest degree of integrity and fidelity and always deal fairly, openly, and totally for the employer’s benefit. [All italics mine.]
Fiduciaries — the “public trust” and holding public office. In Maynard v. Salmon (1928), the chief judge of the Court of Appeals, New York’s highest court, Judge Benjamin Cardozo — later an associate justice of the U.S. Supreme Court (1932-38) — penned this celebrated passage on fiduciaries:
A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior… the level of conduct for fiduciaries [has] been kept at a level higher than that trodden by the crowd.
Cardozo’s disdain for marketplace morals — the case concerned a business partnership gone awry — seems quaint given the monumental corruption of today’s politicians. The latter unfolds in league with deeply interlocked global corporate, entertainment and media elites. But Cardozo’s statement of the duties of a fiduciary rings as true today as it did in 1928.
Can anyone seriously say that Hillary meets the standards for employee loyalty at the fiduciary level — or at any level — given what she did in knowingly engaging in non-secure communications? She knew that such activity was ultra-risky. Indeed, in her own formulation to Hugh Hewitt — she stated that such would definitely be immediately compromised, to the benefit of a hostile foreign power.
“Smoking gun” cyberwar intrusions. Court documents released in litigation brought by the watchdog group Judicial Watch over Hillary’s email server, show that in 2010 Hillary’s network was in fact compromised by hackers, including taking the network down, and forcing the disabling of security features on her network (per Comey, less security than users of Gmail enjoy). As reported by the AP:
State Department staffers wrestled for weeks in December 2010 over a serious technical problem with then-Secretary Hillary Clinton’s home email server, causing them to temporarily disable security features that left the server more vulnerable to hackers, according to emails released Wednesday.
Just weeks later, according to previously disclosed emails, hackers attacked the server, forcing Clinton’s staff to shut it down. The next day, one of Clinton’s closest aides, Huma Abedin, wrote to other high ranking staff: “Don’t email hrc (Clinton) anything sensitive. I can explain more in person.”
Meanwhile, the tally of Hillary’s email lies grows (35 and counting).
All of which leaves a nagging question: If (a) using Hillary’s numbers (rounded off) she deleted 30,000 allegedly personal emails and kept 30,000 official emails; and if (b) less than 3,000 of her recovered emails were classified; it (c) thus follows that less than 10 percent of Hillary’s total email traffic was classified. The resulting tally of classified emails for her 1,440-day (four years) as secretary of state — senior officials are never completely off duty — would amount to a grand average of two classified emails per day.
Does anyone truly believe that such a minuscule total tally of classified emails fits Hillary’s tenure, with the world on fire?
In sum, Comey’s performance paves the way for Hillary to skate into the White House. Put simply, if voters decide to let sleeping dogs lie and lying dogs sleep, they will do so. And if she gains the power of the presidency, she gains its far greater power to hide information and stonewall critics in and out of government seeking transparency in general and data in particular. Having escaped legal liability this time, and continuing to defend her misconduct as nothing more than mere mistakes, she may well repeat the exercise.
(For more on Hillary’s appalling email guilt and mendacity, see my “Connecting Dots: FBI Director Declines To Do So,” in TAS last week. And for why Hillary’s lies matter more than Trump’s, see my “Lies, Liars and the Arts of Lying,” in TAS last month.)