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Agree in principle, but 'storing classified information incorrectly' is almost always prosecuted, is relatively simple to understand, and is quite a serious offense (although that part might not be well understood by lay people).
The reason it's always prosecuted is because the seriousness is impossible to determine. The whole point of properly controlling classified information is so that we know who has access to it and are aware when it's lost. But if you store it improperly, even if there's no evidence that a bad actor or foreign state accessed that information, you have to assume that they did access it, because the controls that would tell you it was accessed are not in place. In other words, every piece of information on Hillary's server must be assumed to be in the hands of our enemies. Her case is exceptionally egregious because her team wiped the server, so the nation doesn't even know what information was on there that was potentially leaked.
I think she should have been prosecuted. The violation is clear, significant, and deliberate, making this case far far more severe than the average. She was let off for political reasons, and because she's well connected, and I believe that is morally and also practically wrong, and is a large part of the reason why citizens don't trust the system to protect their interests. It's a clear failure of the system of law in the country when well-connected people are immune from the consequences of their misdeeds.
If you are talking about the e-mail server case, the official reason why she wasn't prosecuted (and presumably the real reason why Trump didn't try to prosecute her after taking office) was the difficulty of proving that it was deliberate.
The private server was supposed to be for unclassified e-mail only (including SBU material and material subject to mandatory record retention laws that should have been held on official government servers). Hillary used the proper secure systems for most of her classified comms. Over the four years she was Secretary of State, there were a few hundred e-mails on the server that should have been classified Confidential, including a single-digit number that actually had been classified Confidential and marked as such, a few dozen that should have been classified Secret (none of which actually were) and two that should have been classified Top Secret.
It isn't clear if mishandling Confidential information is a crime or not. (The criminal laws relate to the actual threat to national security, not to the level of protective marking, and most Confidential information is not that sensitive). And it is pretty hard to prove that the mishandling of Secret and Top Secret material was "willful" if it involves a small number of e-mails which should have been marked classified but were not.
what's the required level of "intent" under the mishandling statute being discussed?
Let's look at Comey's statement or the FBI report. Hmm, Comey finds that Hillary Clinton's handling was "extremely careless." Odd phase in this context. I wonder why he picked it.
During the later OIG investigation, the investigators reviewed various draft's of Comey's statements. A key change was from "grossly negligent" to "extremely careless." Why do you think Comey and the FBI went with this change?
Probably because the required level of intent is gross negligence and Comey's statement, absent that top-level edit, is essentially 'Yes, Hillary Clinton committed the crime described in the statute because her intentional plan to at the very least circumvent disclosure laws which necessarily would implicate at least communications about classified information did rise to the level of gross negligence which is specifically described in the law as being illegal, however, no reasonable prosecutor would bring charges for this crime we acknowledge she likely committed.' This statement, a more honest one, sort of gives away what you're trying to hide. Not to mention, another problem is prosecutors have indeed brought charges against people relying on the lower level of intent of gross negligence.
Whoopsie. Now there may be other reasons no "reasonable prosecutor" would bring charges, like the worry they'd end up committing suicide by shooting themselves 11 times in the back, but it sure as shit not because Clinton was only "extremely careless" which is totally different from "grossly negligent." Not to mention a bunch of other edits made by Comey from the original draft prepared for him in order to downplay the breadth of Clinton's misbehavior.
On a side note, I always encourage others to read the OIG reports about these controversies; they always have some of the best facts and rather odd conclusions. Many times they'll weave a narrative of facts to basically accuse the FBI and others of political cover-up or some other corruption scheme, but then step back and let the reader make their own conclusions, and the report is filed away in some basement somewhere and forgotten about.
How is classified information determined in court cases? Is it the mark on the paper, whether something should or shouldn't be classified even if unmarked, whether it was classified at the time of mishandling or at some later point, or is it something else?
We'll leave aside for now the fact the FBI didn't examine the server, didn't seize the emails, and relied on a private vendor to send them a copy of both, or the fact Clinton's team was engaged in a coordinated conspiracy to illegally delete and cover-up the entire ordeal which the DOJ gave general immunity agreements (something near underheard of in federal prosecution) in return for interviews which the FBI agents there noted were just full of lies (lies violate and rescind immunity grants). Even after all this nonsense, the FBI still had to admit Clinton had many dozens of emails with classified information in them, and many more discussing classified information in them.
Huh? It is completely clear that "mishandling confidential information" is a crime if the mishandling rises to the level of gross negligence. Are you arguing it's an element of the mishandling statutes being discussed to prove "the actual threat to national security" as opposed to typically being used in the charging decisions?
Whether any particular set of facts rises to the level of "gross negligence" is what may be unclear, but not whether or not mishandling classified information in a grossly negligent manner is a crime or not because it is. Even the rosiest view in favor of Clinton is still plenty to determine gross negligence.
Let's compare this to your comments about mortgage fraud and donald trump with respect to his statements of financial condition (SFCs). You don't note most of Trump's statements over the decade+ and dozens of commercial transations, loan applications, insurance filings, etc, were not false. Instead, you focuse on the minority of statements which you claim are false, misleading, fraud. In that case, you're completely comfortable that a minority of behavior can establish a pattern of fraud for Trump, but for Clinton it's important to note "most" of her classified communications were fine. Why the different treatment?
looks like basic who/whom
After all, the murderer doesn't murder 99.99999% of the time. Why are you focusing on my honorable, family-man friend who maybe perhaps unfortunately murdered someone when it's only .00001% of his behavior? However, let's talk about my enemy the murderer who killed someone.
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If I'm not mistaken, Trump was accused of something similar -- taking classified materials out of the White House. Do you agree he should have been prosecuted for this?
At the risk of being partisan, it does seem like there's a difference between the President (the highest authority) taking work home with him, and a department head setting up a secret unauthorised server apparently explicitly for the purpose of doing things without oversight. I would say that what Biden and Trump did was broadly on the same level, with Clinton being much more egregious than either.
I agree, but I think you see my point. Prosecuting Hillary Clinton for her apparent wrongdoing would invite retaliation in the form of prosecuting Republican officials for taking documents home. Arguments along the lines of "what he did wasn't anywhere near as bad" would be seen as partisan hackery.
(Of course Trump was prosecuted anyway, but hopefully the Democrats will re-think their lawfare tactics going forward).
As much as I hate to say it, this whole experience has led me to the conclusion that former high level government officials should enjoy gentleman's immunity, i.e. they shouldn't be prosecuted for wrongdoing in office unless there is strong bi-partisan consensus.
Using personal communication methods for government business is a widespread problem. Several members of Trump's cabinet did similar.
In Trump's case, he was asked on May 6th, 2021 to return classified documents. The raid happened on Aug 8, 2022. Trump wasn't being changed for his insecure practices. He was being charged for allegedly spending a year and a half actively stonewalling the government trying to recover all of the documents.
That sounds correct to me.
I don't know if this is true or not, but, assuming it's true, and assuming that there was a desire to pursue a lawfare attack against him, he could have been charged for what took place between January 20 and May 5. Agreed?
I did cite my source, and the government thought they had enough of a case that they brought it to court. Though that saga ended because they waited long enough that Judge Cannon arguably dragged the case until right before the election then tossed it under questionable circumstances.
He technically could have been charged for what took place before May 5th. On that I am agreed. However, I argue that there is in fact a gentleman's agreement for high ranking government officials to not prosecute over classified materials. And that gentleman's agreement is that if they tell you to return classified documents and you do, then nothing happens to you. My argument is that unlike Hillary or Biden, Trump tried to fuck with them when they tried to retrieve the documents. My argument is that the classified documents case wasn't lawfare because it wasn't primarily about hating Trump because he makes Democrats mad, it was Trump violating the gentleman's agreement and finding out what happens when you fuck around with three-letter agencies for a year and a half.
Didn't they show up with faked printouts saying "TOP SECRET" to stage a falsified photo-op? From the same agencies that were already falsifying evidence to judges in order to spy on his campaign?
Why on earth would you think any of those "high ranking" government officials would offer Trump a gentleman's agreement?
Their claim was that while they were handling the documents they added the papers since there were several boxes haphazardly organized and they wanted a cover letter to keep track of which documents went together, and if you were doing that you'd need to mark them confidential. Then they forgot to remove them when taking pictures. That first sentence seems sensible to me as something you would need to do. The second yes I get is extremely suspicious.
Because quite frankly we have the timeline of events and it involves a year and a half of trying to get Trump to turn over everything. Unless the media and government are making up literally everything, if even half of what was claimed is true it would be plenty to damn anyone else. You can speculate all you want that they would have tried to prosecute Trump if he had cooperated, and hypotheticals are unfalsifiable so I could never disprove that. But the thing is, I don't have to. There are so many things stacked against Trump regarding this issue that even if it were 100% true that Smith staged a falsified photo op intentionally my conclusion would be that Smith is corrupt and did something completely pointless because Trump blatantly tried to hide classified docs. The only facts required to establish the latter is true are that he was asked to return the docs and that a year and a half later they were still finding boxes of documents that would be pretty damn hard to genuinely miss. And Trump's defense wasn't contesting that.
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I am aware, but in my experience the mainstream media is not trustworthy when it comes to Trump.
Can you cite some precedents for this gentleman's agreement? Because I am seriously skeptical.
From the Clinton investigation:
Of course, that was Clinton, and I understand the assignment is that many here will say it's because she's a Democrat. Mike Pence cooperated with the search and no charges were brought. Here's a good read about some of the details of prosecution related to John Bolton, though I suppose it depends on if you're willing to believe it.
Looking back, it might be less a gentleman's agreement and more that prosecutors have typically been relying on proving intent. And if you can prove that you've given them several warnings and chances that would clear that bar.
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