Sunday, June 24, 2018

Clinton Emails: What the IG Report Refuses to Admit


The following article appeared in the National Review on June 20th


The fix was in.

Despite the sprawl of Justice Department inspector general Michael Horowitz’s 568-page report on the Clinton-emails investigation, there is precious little discussion of the most important issue: The Justice Department and FBI’s rationale for declining to prosecute Hillary Clinton. I believe this is intentional. The inspector general’s message is: “Despite pervasive political bias and investigative irregularities, which I have comprehensively documented, rest assured that nothing too terrible happened here.”
I.G. Horowitz; just another part of the fix

That silver-lining version of this dark spectacle could not have survived a searching analysis of the decision not to indict.

In explaining themselves to the IG, Obama Justice Department and FBI officials contended that the make-or-break issue in the case was whether they could prove mens rea — criminal state of mind. In this instance, that involved former secretary of state Clinton’s knowledge and intent regarding the unauthorized transmission and retention of classified information. Investigators say it dawned on them at a very early stage that they could not. Hence, they urge, their decisions to allow the election calendar to impose a time limit on the investigation, to limit the amount of evidence they considered, to be less than aggressive in obtaining evidence, and to draft an exoneration of Clinton months before interviewing her (and other key witnesses), were entirely reasonable.

Yet their analysis left out the best intent evidence, namely, Clinton’s willful setting up of a private, non-secure server system for all official business.

For his part (as I discussed in Friday’s column), IG Horowitz took the position that it was not his job to question the correctness of the investigators’ legal conclusions and exercise of prosecutorial discretion. He blithely accepted the investigators’ crimped construction of knowledge-and-intent proof, making it a foregone conclusion that he would find their decision-making defensible — much as their adoption of this crimped standard, uncalled for by the applicable law, made it a foregone conclusion that Clinton would not be charged.

A comprehensive critique of the investigators’ approach would have described the evidence they chose not to weigh. That would have been consistent with other parts of the report, in which Horowitz dilates on the minutiae of investigative techniques the agents and prosecutors eschewed.

A detailed description of the grossly improper communications system Clinton established would have illustrated that she knew full well the risk she was running. A large percentage of the secretary of state’s job involves classified matters. We are not talking merely about the exchange of documents marked classified but, more commonly, constant deliberations about sensitive intelligence in classified documents, briefings, and conversations. Clinton’s willful concoction of a home-brew communications network — not a harried official’s occasional, exigent use of private email for official business, but her rogue institution of a private, non-government infrastructure for the systematic conduct of State Department business — made the non-secure transmission and storage of classified information inevitable.

Horowitz’s fleeting conclusion that the decision not to charge Clinton was rational and not necessarily motivated by political considerations hinges on the assumption that the intent evidence truly was as sparse as the FBI and Justice Department described it. Of course the decision to decline prosecution was defensible, if not incontestable, if one accepts that false premise. And Horowitz does not just accept the premise; he treats it as a background assumption, writing as if there’s no other conceivable way to look at the case.

What made Clinton’s conduct outrageous was not that national-defense officials emailed each other frequently. That happens in every government agency that deals with national security. The unique fact here was that Mrs. Clinton willfully set up a system in which those communications would transit through and be retained on a non-secure system, outside the government’s layers of protection. That system was extraordinarily vulnerable to penetration by hostile actors, a fact of which Clinton was undeniably, intimately aware. (See, e.g., Clinton’s banning of State Department employees from using private email for official business due to security concerns; Clinton’s citing of an ambassador’s use of private email for government business in firing him; Clinton’s acknowledgment that she “received a security indoctrination concerning the nature and protection of classified information”; Clinton’s memoir, Hard Choices, in which she vividly recounts the thorough training she received about protecting intelligence from the omnipresent threat of espionage, including instruction to leave communications devices on planes with batteries removed during her frequent foreign travel, as well as the need to use an “opaque tent” or “a blanket over our head” when she and her staff read “sensitive material” outside the secure U.S. government setting.)

It is a classic in the Clinton genre: rules-don’t-apply-to-me sense of privilege causes mess; subordinates blamed for mess; Washington looks the other way.


(Article continues HERE)

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