FBI and DOJ news you may have missed

[David C.]

The issues surrounding gross negligence are that since at least 2008, DOJ has had a policy that before proceeding with a felony mishandling case, prosecutors must be able to prove that the defendant new that the material was classified at the time it was mishandled, lost, transmitted, compromised, etc. That policy effectively meant that the material had to be clearly marked. It was not good enough to be able to show that the person should have known as was the case prior to 2008 or in all of the cases prosecuted under UCMJ. Because the material on Clinton’s server was not clearly marked as SCI/TS, or the markings were added after the fact, the prosecutors could not meet their own departmental standards for gross negligence. The prosecutors also felt that the lack of clearly marked classified material on the server was exculpatory evidence that Clinton at least made efforts to keep the server clean of sensitive data - bye bye gross negligence threashold, bye bye felony mishandling. Moreover, they could not show that Clinton shared the material with unauthorized persons which would have been required for one of the misdemeanor mishandling charges.

Contrast this with Gonzo and Petraeus. Both of them took clearly marked TS and even SCI materials home. Petraeus went so far as to share it with his mistress which is why he was charged and eventually plead down to misdemeanor mishandling.

Ok, I strongly disagree with where we wind up but I do understand now and appreciate you taking the time to explain it.

[Spartan1980]

I don't recall Nixon enriching himself while in public office like LBJ, or like Clinton/Gore/Obama have done afterwards. There is also a difference between the DOJ being reluctant to prosecute a sitting president and FBI/DOJ weaponizing FISA warrants and ignoring multiple violations of TS SCI.

How many people in the military or CIA, etc. have been disciplined, fired, or sent to prison for improperly securing TS or TS SCI information? For merely leaving the files on their desk, or in a locked office drawer rather than a safe? Same comment for secure email and phone comms.

Regarding the server and phone destruction, I am still absolutely aghast. As I private citizen that worked for a company that was named in a Federal lawsuit, I would still be in prison had I destroyed evidence like that. Either the law applies equally or we have no rule of law.

I think we are on the same page.

Nixon was preemptively pardoned, otherwise he would have been indicted and prosecuted. 40 something people under him actually were. G. Gordon Liddy did a nickel in club fed. Do you know who "Deepthroat" was? It was Mark Felt, Associate Director of the FBI.

Hillary's enriching herself was only the icing on the cake so to speak. I heard that the server was being setup as she was being sworn in or at least on the same day, or perhaps it was her State email address being forwarded to it, I don't know. The primary purpose was to hide her official correspondence from everyone including her own superiors. It put an insulation layer or smoke screen between her activities and everyone else. Pretty convenient huh? That bitch was so brazen it boggles my mind.

And spinning it any other way is just word play. There's no question in any reasonable person's mind that she needs to be in an orange jumpsuit, there's an entire mountain range of precedent for just that. But the reason it'll never come to pass is because Obama knew about it all and lied about it. We've become such a pussified nation...

[Sensei]

Ok, I strongly disagree with where we wind up but I do understand now and appreciate you taking the time to explain it.

No problem. Personally, I think that Clinton was very lucky that DOJ changed its policies around 2008. Moreover, I think that a more aggressive approach might have produced process crimes such as obstruction or lying to investigators. 90% of the time I think these process crimes are chicken shit, but I make exceptions for people like Hillary.

[Spartan1980]

@Sensei In my reply @ post #92 I didn't mean to imply that you were playing the word play games, going back and reading it seems it could be taken that way. I think it's pretty clear that you are pretty up to speed on the minutia of the process. My beef isn't with your interpretation of it, it's with the process itself. Just didn't want you to think I was implying anything towards you.

[UNM1136]

The big thing about reasonable doubt is that it is a high standard to hit. The circumstantial evidence is there, there appears to be some direct evidence. But is that evidence enough to convince 18 (I forget now many alternates federal juries get) people who know nothing about carrying a security clearance or handling classified information (you really don't think anyone who has ever held a clearance will survive vior dire, do you?) and convince them beyond a reasonable doubt that the law was broken? My local DA put it this way: How would you like to have your fate decided by 12 people not bright enough to get out of jury duty? My wife's period of time on jury duty almost kept her on the bench because she was the wife of a cop. Cops rarely, if ever, get to sit on criminal juries.

Attorneys are ranked in their organizations by how many cases they win or lose. Both sides play for keeps, and the defense has a much easier job. The prosecution has to prove to the entire jury of the facts and the law beyond a reasonable doubt, so 85% or so certainty. The defense only has to provide a reasonable doubt, or that little bit of uncertainty (call it 16%) to a portion of the jury and you get a hung jury (Bill Cosby anyone? Tai Chan?). I have heard judges explain reasonable doubt as the level of certainty you would use to purchase a house. You like the house, but not the yard? There may be reasonable doubt that the house is for you. Like the house, but the you want wood floors and not wall to wall carpeting? There may be reasonable doubt about the house meeting your needs. Love everything about the house, but not the price, or the interest rate the bank is offering, you have doubt.

Sitting here online it is very easy to see intent (I thought intent was not necessary for negligence?) and see the facts and be convinced. People with our level of knowledge, and the fact that we are following the story would taint our welcome in jury pools. Even the President denied knowledge of the server, and he was emailing her at the unofficial address on the secret server. Surely the President would not assist her in her wrong doing, would he? Her state department employees, the long term bureaucrats,
should have known the rules and stood up and guided her, right? But they went right along with it, so how could she know she was in the wrong? These are just small arguments to create reasonable doubt, the concept of plausible deniability creates more.

What I found interesting was the response to the IG report. The media and the FBI director set out listing what the report did not say, rather than what it did. The IG report is not a Law Enforcement quest for the truth, it is basically a human resources investigation to to ensure internal rules were followed. IGs, as I understand it rarely make criminal cases, instead the turn it over to Internal Affairs (or Office of Professional Responsibility, the DOJ's equivalent). Prosecuting attorneys then present completed cases to Grand Juries, and here we are again.

The direct evidence of bias is lacking, but the circumstantial evidence is there. I loved how the FBI director said that there was no bias, but ALL agents would attend training to avoid bias or even the appearance of bias. If the FBI were vindicated, why would the whole staff need training? The actual text of the report casts a different light than the executive summary. The ES seemed to have been written with the intent that the media grab on and proudly trumpet what the FBI did not do.

pat

[farscott]

Ok. Did any non-spy get a criminal charge?

I am aware of one who was supposedly charged, but I have no details or proof he was. It was the receiver of the email to an erroneous person (same first name and same first letter of last name). It was purely accidental, but he did not report the email was sent to him in error. That was considered negligent handling of classified information, and he was arrested. The fact that he did not report receiving the email was stressed in our next several training/briefing sessions.

[TGS]

The issues surrounding gross negligence are that since at least 2008, DOJ has had a policy that before proceeding with a felony mishandling case, prosecutors must be able to prove that the defendant new that the material was classified at the time it was mishandled, lost, transmitted, compromised, etc. That policy effectively meant that the material had to be clearly marked. It was not good enough to be able to show that the person should have known as was the case prior to 2008 or in all of the cases prosecuted under UCMJ. Because the material on Clinton’s server was not clearly marked as SCI/TS, or the markings were added after the fact, the prosecutors could not meet their own departmental standards for gross negligence. The prosecutors also felt that the lack of clearly marked classified material on the server was exculpatory evidence that Clinton at least made efforts to keep the server clean of sensitive data - bye bye gross negligence threashold, bye bye felony mishandling. Moreover, they could not show that Clinton shared the material with unauthorized persons which would have been required for one of the misdemeanor mishandling charges.

Contrast this with Gonzo and Petraeus. Both of them took clearly marked TS and even SCI materials home. Petraeus went so far as to share it with his mistress which is why he was charged and eventually plead down to misdemeanor mishandling. While Clinton’s mishandling may have been more damaging, these would have been easier to prove - hence the criminal referral for Gonzalez and actual conviction for Petraeus.

Excellent explanation.

I think another key facet that a lot of people are missing is that her private server wasn't set up for processing classified information, which is what people sort of naturally assume. What was found, IIRC, was spillage of unmarked docs.

Using a private server for work email is not a violation of US code. In terms of the law, it's no different than if she had spillage of unmarked docs on her department OpenNet account.

Everyone says "if it was me, I'd be charged," but I'm fairly confident in saying that if I had unclassified docs on my work account that it wouldn't even count as an infraction, let alone a violation for God's sake. If they were later classified or improperly marked by the originator, that's not my fault.

[BehindBlueI's]

The big thing about reasonable doubt is that it is a high standard to hit. The circumstantial evidence is there, there appears to be some direct evidence. But is that evidence enough to convince 18 (I forget now many alternates federal juries get) people who know nothing about carrying a security clearance or handling classified information (you really don't think anyone who has ever held a clearance will survive vior dire, do you?) and convince them beyond a reasonable doubt that the law was broken? My local DA put it this way: How would you like to have your fate decided by 12 people not bright enough to get out of jury duty? My wife's period of time on jury duty almost kept her on the bench because she was the wife of a cop. Cops rarely, if ever, get to sit on criminal juries.

Attorneys are ranked in their organizations by how many cases they win or lose. Both sides play for keeps, and the defense has a much easier job. The prosecution has to prove to the entire jury of the facts and the law beyond a reasonable doubt, so 85% or so certainty. The defense only has to provide a reasonable doubt, or that little bit of uncertainty (call it 16%) to a portion of the jury and you get a hung jury (Bill Cosby anyone? Tai Chan?). I have heard judges explain reasonable doubt as the level of certainty you would use to purchase a house. You like the house, but not the yard? There may be reasonable doubt that the house is for you. Like the house, but the you want wood floors and not wall to wall carpeting? There may be reasonable doubt about the house meeting your needs. Love everything about the house, but not the price, or the interest rate the bank is offering, you have doubt.

Sitting here online it is very easy to see intent (I thought intent was not necessary for negligence?) and see the facts and be convinced. People with our level of knowledge, and the fact that we are following the story would taint our welcome in jury pools. Even the President denied knowledge of the server, and he was emailing her at the unofficial address on the secret server. Surely the President would not assist her in her wrong doing, would he? Her state department employees, the long term bureaucrats,
should have known the rules and stood up and guided her, right? But they went right along with it, so how could she know she was in the wrong? These are just small arguments to create reasonable doubt, the concept of plausible deniability creates more.

What I found interesting was the response to the IG report. The media and the FBI director set out listing what the report did not say, rather than what it did. The IG report is not a Law Enforcement quest for the truth, it is basically a human resources investigation to to ensure internal rules were followed. IGs, as I understand it rarely make criminal cases, instead the turn it over to Internal Affairs (or Office of Professional Responsibility, the DOJ's equivalent). Prosecuting attorneys then present completed cases to Grand Juries, and here we are again.

The direct evidence of bias is lacking, but the circumstantial evidence is there. I loved how the FBI director said that there was no bias, but ALL agents would attend training to avoid bias or even the appearance of bias. If the FBI were vindicated, why would the whole staff need training? The actual text of the report casts a different light than the executive summary. The ES seemed to have been written with the intent that the media grab on and proudly trumpet what the FBI did not do.

pat

As far as training "needs" driven by public perception vs real need is EXTREMELY common in LE.

[TGS]

The big thing about reasonable doubt is that it is a high standard to hit. The circumstantial evidence is there, there appears to be some direct evidence. But is that evidence enough to convince 18 (I forget now many alternates federal juries get) people who know nothing about carrying a security clearance or handling classified information (you really don't think anyone who has ever held a clearance will survive vior dire, do you?) and convince them beyond a reasonable doubt that the law was broken? My local DA put it this way: How would you like to have your fate decided by 12 people not bright enough to get out of jury duty? My wife's period of time on jury duty almost kept her on the bench because she was the wife of a cop. Cops rarely, if ever, get to sit on criminal juries.

Attorneys are ranked in their organizations by how many cases they win or lose. Both sides play for keeps, and the defense has a much easier job. The prosecution has to prove to the entire jury of the facts and the law beyond a reasonable doubt, so 85% or so certainty. The defense only has to provide a reasonable doubt, or that little bit of uncertainty (call it 16%) to a portion of the jury and you get a hung jury (Bill Cosby anyone? Tai Chan?). I have heard judges explain reasonable doubt as the level of certainty you would use to purchase a house. You like the house, but not the yard? There may be reasonable doubt that the house is for you. Like the house, but the you want wood floors and not wall to wall carpeting? There may be reasonable doubt about the house meeting your needs. Love everything about the house, but not the price, or the interest rate the bank is offering, you have doubt.

Sitting here online it is very easy to see intent (I thought intent was not necessary for negligence?) and see the facts and be convinced. People with our level of knowledge, and the fact that we are following the story would taint our welcome in jury pools. Even the President denied knowledge of the server, and he was emailing her at the unofficial address on the secret server. Surely the President would not assist her in her wrong doing, would he? Her state department employees, the long term bureaucrats,
should have known the rules and stood up and guided her, right? But they went right along with it, so how could she know she was in the wrong? These are just small arguments to create reasonable doubt, the concept of plausible deniability creates more.

What I found interesting was the response to the IG report. The media and the FBI director set out listing what the report did not say, rather than what it did. The IG report is not a Law Enforcement quest for the truth, it is basically a human resources investigation to to ensure internal rules were followed. IGs, as I understand it rarely make criminal cases, instead the turn it over to Internal Affairs (or Office of Professional Responsibility, the DOJ's equivalent). Prosecuting attorneys then present completed cases to Grand Juries, and here we are again.

The direct evidence of bias is lacking, but the circumstantial evidence is there. I loved how the FBI director said that there was no bias, but ALL agents would attend training to avoid bias or even the appearance of bias. If the FBI were vindicated, why would the whole staff need training? The actual text of the report casts a different light than the executive summary. The ES seemed to have been written with the intent that the media grab on and proudly trumpet what the FBI did not do.

pat

OIGs prosecute people all the time. For State in particular, there's a clear delineation in investigative responsibilities between OIG and DSS's Office of Special Investigations. Both offices handle criminal investigations for employee malfeasance at the departmental level.

Every OIG I've worked with treats their criminal investigations as a criminal investigation like anyone else for obvious reasons. Investigations for a non-criminal end state, like revoking a security clearance, can obviously be treated very differently.

[BehindBlueI's]

The prosecution has to prove to the entire jury of the facts and the law beyond a reasonable doubt, so 85% or so certainty.

Likely picking at nits, but I've never heard reasonable doubt as expressed as that low of a percentage. That would mean roughly 15% of people convicted are, in fact, innocent. Academically, it's usually presented as 98-99% sure, but locally percentages are frown upon as part of jury instruction. The wordage in jury instructions varies, but locally it's normally something like:

The State must prove beyond a reasonable doubt each element of the offenses charged. There
is a presumption of the defendant's innocence in a criminal case. That presumption of innocence
should continue and prevail in your minds unless you are convinced of her guilt beyond a
reasonable doubt.

There are very few things in this life that we know for absolute certain. Absolute certainty is not
the burden the state must meet.

Reasonable doubt is not a mere possible doubt, it is a doubt that arises from your
consideration of the evidence and one that would cause a careful person to pause and hesitate in
the graver transactions of life