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Should Hillary Clinton go to prison

Hillary Clinton

If you've been watching the press on the topic of the private email server that Hillary Clinton used while Secretary of State, then you have noticed that either nothing she has done is worthy of concern, or that she should go to prison. This post clears up a few facts.

UPDATE BELOW (post FBI recommendation to not indict.)

Let's take this topic by topic.

This isn't about email.

"I think the secretary of state is right, the American people are sick and tired about hearing about your damn emails" - Bernie Sanders

First, this topic isn't really about "email." Claiming that it is would be like claiming that President Nixon's Watergate was about hotels. Claiming this is about emails makes the whole thing sound like busy-bodied grandmother's chatting up tabloid stories. Nobody cares about her "damn emails," at least not in a vacuum. 

This isn't about email servers.

Talk about putting the American public to sleep. We aren't going to ever care if the server was kept in her office at the state department or in her bathroom in the basement of her New York home. The fact is, where it sat is inconsequential to the general public, right? State Department staff carry smartphones all over the world with their email and those are not locked up in Federal vaults. So it really isn't "about" email servers, at least not in a vacuum.

This isn't about the Clinton family thinking they are above everyone else.

This is the worst excuse to care about this issue. Let's imagine that they do value themselves above everyone else and think that special consideration should be given to them. Who cares? There is no law against being arrogant.

This isn't about Republican's on a witch hunt.

Politicians break laws all of the time. In fact, citizens both knowingly and unintentionally break laws all of the time. If this was simply about proving she isn't law abiding, then surely it would not be a big deal to uncover stories where Hillary Clinton broke some laws.

So what is this about?

In my opinion, this is really about one thing, and one thing only: espionage.

"What in the world, Steve? Espionage, really!?!?! You think Hillary Clinton committed espionage!?!?"

I am not saying she did anything (yet). That is for the FBI to determine. What I am saying (and this is why it is a big deal, and I've been saying this for a very long time now) is that if Hillary Clinton broke the law, it will not be about tabloid email content, or servers in bathrooms, but about the violation of clearly defined, non-ambiguous rules laid out in one section of the U.S. Code to do with espionage.

You have to learn that there are two types of violations that we should know exist when thinking about espionage: First, there is espionage where you knowingly give away state secrets, like Edward Snowden. He was charged with sections 641, 793, and 798 of the Espionage act, which had more to do with sharing state secrets with unauthorized individuals. And then there was once CIA Director David Petraeus who was charged with section 1924, which talks about knowingly removing classified documents or retaining removed classified documents from secure locations in unauthorized locations.

So, regardless of the fact that this happened over email, on a server in her basement, and often on her personal blackberry device, did she violate any of these types of sections of what is commonly referred to as the espionage act? Here are a few of the questions the F.B.I. is likely having to investigate right now:

Did she share content considered protected from unauthorized disclosure in the interests of national security?

We know she shared it with her lawyers who were not cleared to view classified documents by the Department of Defense.

Did she share or retain classified information in an unauthorized location?

We know she shared and retained classified content in her email, server, and mobile devices, none of which met the standard for Department of Defense encryption.

Even if she were deemed guilty, how serious is this?

The Espionage Act was initially signed into law in 1917. It was amended many times by Congress, originally found in title 50 under "war" but later moved to title 18 under "crime." This means that espionage is considered a classification of crime. If you are convicted of violating title 18, then you are considered a federal criminal. That sounds pretty serious, doesn't it? It would then be up to a court to decide your punishment once you are convicted.

What are the penalties?

Every crime faces a sliding scale of potential penalties. Espionage is no different. For each espionage violation, there is a combination of either financial penalties, or prison time, or both. 

UPDATE: The FBI concluded their investigation and is recommending no indictment for Hillary Clinton. They mentioned finding that she shared emails with her lawyers who were not cleared to view classified information, but claimed that they did not read the substance of those emails, only searching for keywords in messages and reading email subjects. Said another way, she would be considered guilting of violations like Edward Snowden had they read the emails, but they claimed to have not read them. In another talking point, they claimed that she did retain classified emails on her unencrypted servers (plural, we have now learned) and mobile devices (plural) but the FBI considers her behavior "extremely careless" and not criminal. The preponderance of her behavior appeared to be negligent and careless in her violation, and not that of criminal intent. In any case, the FBI does not prosecute criminals but they hand the evidence and along with any recommendations to the Department of Justice. Of course, only a few days ago, before the FBI announcement here, Dept. of Justice head Loretta Lynch, after privately meeting with former president Bill Clinton, stated that she regretted meeting with Bill Clinton in the light of full disclosure, but said the DOJ will accept whatever recommendation comes from the FBI investigation. In retrospect, one could reasonably wonder if the DOJ knew the FBI was about to recommend not proceeding with an indictment of Hillary Clinton, which gave Lynch confidence to say they would proceed based on the recommendation of the FBI. At the same time, FBI Director James Comey said that no segment of the government previewed his speech or knew what he was about to say. While I have no problem believing that his statement was not vetted, I wouldn't hesitate to question the semantic specificity of the White House or the DOJ not knowing the content of his speech while at the same time knowing the general intent of the outcome of the investigation in advance of the public pronouncement. Personally, I didn't think that the U.S. Code makes a distinction between ignorance-based, careless violations and the perception of criminal violations, but it appears they do. Remember this the next time you get pulled over for speeding. In the world of U.S. Justice, being in a rush to get somewhere coupled with violating the law equals an intentional violation. But claiming ignorance or extreme carelessness in violation of the law should now equal a subjective pass on penalties. Anything else, local or Federal, would be considered special treatment. 

But politicians break laws, right? Can she still be president even if she breaks these particular laws?

Any citizen or politician in violation of classified records keeping laws as defined in title 18 would not be disqualified from running for president. It's a crazy thought that we could select a president in violation of federal espionage laws, but, having said that, there are only three qualifying criteria for legally running for president:

  • The candidate must be at least 35 years old
  • Must be a 14-year resident of United States
  • Must be a natural born citizen

And this is where common sense for citizens comes in. I can think of a lot of  reasons beyond basic criteria for why I would prefer a candidate or reject a candidate. The above baseline is fine. It gets you in the door. But it's all of the other facts that come back into play beyond the baseline that gets you selected. So in the case of Hillary Clinton, even if she broke espionage laws, can she run for president? Theoretically, yes. Can she run for office from prison? Theoretically, maybe? Would she get elected? Dear heaven, that would seem insane.

Final thought: I know people think Trump can be a wild card, but it must be the year of the wildcard if we have to pick our next president by selecting either a wildcard or a candidate soon to be convicted of espionage! If she is convict of federal espionage, am I saying you would be crazy to vote for her? I am, in fact, saying it is irresponsible to vote a criminal into the highest political position in the land. She may qualify for the baseline to run, but it is on us if she wins. Absolutely!


Submitted by Chris Choate (not verified) on Sun, 07/03/2016 - 08:13


Classic Steve - style analysis!

As a federal contractor, I can say that the things that the FBI has said they found on her server are absolutely grounds for termination of employment... At the very least. Basic security training, day 1.

The more I think about this, the more of a cop-out AG Loretta Lynch gave by claiming that she would take the recommendation of the FBI. Said another way, it isn't the job of the FBI to prosecute Clinton. Their job was to gather evidence. So now, they are not on the hook for making a "recommendation", but Lynch is also off the hook by saying she will keep her word and following their recommendation (scapegoating on the FBI). It is an interesting turn of events.

About a month ago a co-worker was a juror on a local case where a man interfered with a cop in an investigation. The jury was instructed to review the evidence to determine if the man did in fact interfere. The man's defense was all about his intent to protect a loved one and his ignorance of the law surrounding interfering with an investigation. The jury had been told to disregard "intent" but to simply focus on the facts of the case.

I kind of get the feeling that the FBI's recommendation had more to do with them deciding the intent of her violation rather than focusing on the facts of her violation. What is clear is that she violated the law, right? That bit seems settled. So now it will be a matter of people caring about the fact that she did violate or was careless about national security vs people who care that she wasn't prosecuted for it.

Chris, I completely agree that no Federal employee or contractor would get the chance to defend their ignorance or intent if they violated any of these U.S. Codes. They would simply get fired, at the least.

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