Obama's obfuscation of Hillary's guilt

At National Review, Andrew McCarthy writes,

he Justice Department is reviving investigations involving Hillary Clinton’s emails and the degree to which the State Department during Mrs. Clinton’s tenure as secretary was put in the service of the Clinton Foundation. Good. Indeed, it is long overdue. It underscores a point we’ve tried to make repeatedly here: You don’t need a special counsel for this kind of thing; such investigations are what we have a Justice Department full of career prosecutors for. The perverse institution of the independent prosecutor should be shunned whenever possible — and its jurisdiction tightly confined in the rare necessary case.

This was a straightforward case of criminal intent. Negligence was the fallback position — for a prosecutor, an “even if” theory, as in: “Even if you’re not convinced by our overwhelming evidence of Clinton’s willfully illegal retention and transmission of classified information, you can still comfortably find her guilty if you conclude that she was grossly negligent — which, as the judge will tell you in his instructions, simply means ‘extremely careless.’”

Mrs. Clinton’s criminal intent was so clear that its obfuscation also required Obama’s second point: Mrs. Clinton’s lack of intent to imperil the United States.

…Obama is a Harvard-trained lawyer. What he and those who echoed him executed was a not uncommon defense-attorney stratagem: The conflation of motive and criminal intent, two importantly distinct concepts. Motive is the reason why we do something; intent is our state of awareness in doing it — the understanding that, regardless of why we are doing something, we know we are doing it and we are doing it on purpose. To prove someone guilty of a crime, no motive need be established, but intent must always be proved beyond a reasonable doubt.

…every government official with a security clearance knows it is wrongful to transfer classified information to a person not authorized to have it or to a place where its storage is not authorized.

…Rather, it was urged that she had transmitted classified information on purpose, but not with intent to do the country harm. That is less heinous than the treasonous offense. But it is still egregious. It is a crime that puts the lives of intelligence sources and the effectiveness of life-saving intelligence operations at risk.

Moreover, it is a black-letter principle that a person’s innocence of Crime A is inadmissible to prove that the person has not committed Crime B. For example, the fact that I have not personally sold drugs has no bearing on whether I laundered drug money. And the fact that Mrs. Clinton did not intend that any harm come to the United States does not make her innocent of willfully transmitting classified information to unauthorized persons or places, or of retaining it when she left the government and when the State Department finally requested that she surrender the government records in her possession.

As for Mrs. Clinton’s motives, no sensible person believes she wanted to imperil the country; many, however, justifiably believe she put her own interests ahead of the potential that the country could be threatened. I have always believed her motive in setting up a private communications network for her government work was twofold: to conceal the links between State Department business and Clinton Foundation business; and, as she was contemplating a presidential bid, to insulate her communications from disclosure under the Freedom of Information Act, congressional oversight, and other government-transparency measures.

…the evidence that Clinton willfully mishandled classified information is mountainous.

When the request was made that Clinton surrender her emails to the State Department, she turned them over to her own lawyers and subordinates who did not have the security clearances required for access to the information. She destroyed tens of thousands of emails, even though they were under subpoena, so that they could not be reviewed by the State Department or the FBI. Of the 30,000 she deigned to surrender to the State Department, over 2,000 contained classified information, some of it among the nation’s most highly classified national-defense secrets. And she serially lied in her public statements about her emails, in congressional testimony (in which she brazenly claimed to have turned over all work-related email to the State Department, and that her lawyers had carefully reviewed every email before designating which should be surrendered and which withheld), and in her FBI interview (in which she pretended not to know what the ubiquitous “[C]” designation — for confidential — in classified documents meant).

Any prosecutor who understood there was no need to prove intent to harm the United States would be delighted to take that case to the jury — especially once the prosecutor realized he’d get to tell the jury: “Even if you suspend disbelief and buy the defense argument that she didn’t mean to horde and transmit classified information, you must still find her guilty if you conclude she was grossly negligent — as in ‘extremely careless’.” The Trump administration and its Justice Department say they want to stop rampant leaking by government officials. It won’t stop absent a reversal of the last administration’s fiction that the prosecutor must establish a motive to harm the United States. The law does not require it. The rule of law requires correcting it.

Read more here.