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Wed Mar 9, 2016, 08:43 AM

Why Hillary Clinton is unlikely to be indicted over her private email server [View all]

Here are some facts for the silly conservatives to ignore https://www.washingtonpost.com/opinions/why-hillary-clinton-is-unlikely-to-be-indicted-over-her-private-email-server/2016/03/08/341c3786-e557-11e5-b0fd-073d5930a7b7_story.html

“There are plenty of unattractive facts but not a lot of clear evidence of criminality, and we tend to forget the distinction,” American University law professor Stephen Vladeck, an expert on prosecutions involving classified information, told me. “This is really just a political firestorm, not a criminal case.”

Could a clever law student fit the fact pattern into a criminal violation? Sure. Would a responsible federal prosecutor pursue it? Hardly — absent new evidence, based on my conversations with experts in such prosecutions.

There are two main statutory hooks. Title 18, Section 1924, a misdemeanor, makes it a crime for a government employee to “knowingly remove” classified information “without authority and with the intent to retain such documents or materials at an unauthorized location.”

What we learned from Hillary Clinton's emails
Play Video1:56
The State Department released 52,000 pages of Hillary Clinton’s emails as part of a court-ordered process. Here's what else we learned from the publicly released emails. (Monica Akhtar/The Washington Post)
Prosecutors used this provision in securing a guilty plea from former CIA director David H. Petraeus, who was sentenced to probation and fined $100,000. But there are key differences between Petraeus and Clinton.

Petraeus clearly knew the material he provided to Paula Broadwell was classified and that she was not authorized to view it. “Highly classified . . . code word stuff in there,” he told her. He lied to FBI agents, the kind of behavior that tends to inflame prosecutors.

In Clinton’s case, by contrast, there is no clear evidence that Clinton knew (or even should have known) that the material in her emails was classified. Second, it is debatable whether her use of the private server constituted removal or retention of material. Finally, the aggravating circumstance of false statements to federal agents is, as far as we know, absent.....

The argument here would be that Clinton engaged in such “gross negligence” by transferring information she knew or should have known was classified from its “proper place” onto her private server, or by sharing it with someone not authorized to receive it. Yet, as the Supreme Court has said, “gross negligence” is a “nebulous” term. Especially in the criminal context, it would seem to require conduct more like throwing classified materials into a Dumpster than putting them on a private server that presumably had security protections.

My point here isn’t to praise Clinton’s conduct. She shouldn’t have been using the private server for official business in the first place. It’s certainly possible she was cavalier about discussing classified material on it; that would be disturbing but she wouldn’t be alone, especially given rampant over-classification.

The handling of the emails is an entirely legitimate subject for FBI investigation. That’s a far cry from an indictable offense.
Ruth Marcus is hardly a Clinton supporter and these facts are consistent with the analysis posted elsewhere on this board that are not from Fox

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