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Ricochet News Flash: Hillary’s Chances of Being Indicted
Rob, James and I just finished recording this week’s flagship Ricochet Podcast. One of our guests was the great Richard Epstein. Get a load of this exchange:
James Lileks: What’s the chance Hillary will be indicted?
Richard Epstein: Thirty percent.
Wow. One of the country’s leading legal scholars believes there’s a one-in-three chance that the Democratic Party’s presumed nominee for President will become the subject of a criminal indictment.
As I say, wow.
Published in Law
I think the two worse outcomes for Hillary are: no indictment, or felony indictment. If the former, it will confirm special privileges for Democrat insiders from a corrupt DOJ, and a likely rebellion at the Pentagon and FBI. If the latter, the rule of law will be upheld (not that she’ll be found guilty).
At this point, the best outcome for her is a misdemeanor charge. She can pay a fine, crow that it was a simple mistake, etc. etc., and play the victim.
Is it? I am not a lawyer so I really am unaware but does intent play a role? Is a desire for control over the secrecy mechanisms an intent that alleviates culpability?
Hillary as the outsider. Boggles the mind.
Please see 18 U.S. Code 798(a) and (a)(3).
Many federal crimes do not require an intent to do wrong (mens rea). The act itself is the crime. In this instance, the unauthorized transmittal and storage of the classified material would be sufficient, as it was with Petraeus. The cherry on the top is giving the material to her lawyer, David Kendall who did not have the necessary security clearances to possess, much less view, some of the material. Petraeus conveyed the classified material to his biographer/mistress.
My bet is that if the public clamors for an indictment, Obama will pardon Hillary as Ford did Nixon in 1974. Obama doesn’t care what people think and neither do the Clintons. And Dems have never shown a reluctance to vote for a felon of their own Party.
A pardon may come, but the dems will suffer for it, and she will be forced out of the race.
I’m kind of surprised there hasn’t been a bigger Media push on the narrative that government secrecy is the biggest threat to security. In an attempt to soften public concern over this scandal and rendering it to the level of “it is all about sex”, and thereby pushing the inattentive public attitude to “Meh, its all politics and everybody does it, she just got caught under unfair scrutiny.” you know, Clinton Modus Operandi.
Nobody puts
BabyHillary in the Corner.Zero chance of indictment. Zero chance of FBI recommending indictment. Zero chance of HRC ever suffering any real accountability for this.
None, absolutely none whatever.
Any “average” citizen would already be so deep in prison they would never again see the light of day.
Things are rigged, and the fix is in.
I will be delighted to be proved wrong.
The podcast is live here. Richard’s segment is in the second half of the show.
Please tell me you aren’t serious about McCaskill.
Tap, Nap, or Snap! If you’ve got to be associated with academe, this is the one.
Had you done something like that, you’d’ve been under the jail while the investigation was ongoing, just to ensure there was no more incidental, accidental, or collateral spillage.
Concur.
I disagree. Time will prove you wrong (or me).
James Madison — not true about intent. Mishandling through even innocent negligence is still culpable. The purposeful mishandling and evasion in this case are sufficient to satisfy national security purposes, even if all involved believe that she believed she was doing the right thing.
if your point is that without intent a conviction is not likely, I can’t argue. But the grounds are clearly there — the laws are explicitly written to allow simple honest failures to constitute breaking the law. The safeguarding sworn to is a duty, and dereliction is an offense.
That said, I am utterly hamstrung as to what will happen. Anything could happen in this lawless age. Just saying that the bar for a legit indictment (and therefore the bar for a conviction) has well been met if reports are largely accurate.
Are you sure? Back when I thought I understood American politics, I would have thought, “Of course she would have to drop out.”
But now?
Why not just brazen it out?
Nice try, Frank, but you and I both know which school you graduated from:
now, now, there’s no need for such invective. Frank at least warrants Dark Forces, if not Outcast.
(He says, actually being rather fond of the game, all the same.)
Truly, I hope you’re right & I’m wrong.
However, as Damon Runyon said: “The race is not to the swift, nor the battle to the strong, but that is the way to bet.”
Except that Petraeus will be fine with it. The whole affair dust-up (tinfoil hats, people!) was his ticket out of testifying on Benghazi. Honest to goodness, the reason that is still such a largely uninvestigated mess is that it really is the nexus of bad things.
They got Susan Rice out of the way by moving her into an EP slot. Petraeus got shown the Dalai Lama ceremonial exit, out with the trash.
I think if they were throwing up a bit of a smoke screen on this, they wouldn’t be throwing 100’s of agents. It would be 20, it would be called The Exoneration Task Force, and they’d be assembling piles of paper in a room somewhere, and it would go nowhere in 3 months. That there’s a much bigger monetary and resource commitment means you have to get approval at higher levels – or so I’m assuming. I’m sure whoever’s funding it knows this blows a hole in their budget wider than Hillary’s pantsuit.
I am firm in my belief that God looks after fools, drunks and the United States of America.
Hillary Clinton will drop out for health reasons, most likely after losing Iowa. At which time she will be free to plead guilty to a misdemeanor charge of mishandling classified information. A grateful nation will turn its weary eyes to Vice President Joe Biden and learn what Conservatives have known for thirty years, “there’s no there there”.
Mishandling classified information is one thing (for which anyone not named Clinton would already be in jail). The more pertinent issue for the election is Felony’s reckless disregard for national security as the nation’s Secretary of State.
She knew she was handling “sensitive” information on an un-secure server. Information that would be easily accessible to the nation’s enemies. It is beyond comprehension that this
womanfelon is a contender for any major party’s nomination.I’m sure there are a lot of Ricochetti with experience handling classified information, what with all our veterans. In my relatively short-lived experience working for a DoD contractor, the company security officer’s standard operating procedure was to call us in periodically and put the fear of God in us for some minor slip up. We were not dealing with Secretary of State-level information, let alone were we the public name and face of the country’s foreign affairs!
It will be a grave injustice if Felony isn’t severely punished for exposing the nation to such risks. It’s simply unthinkable she would be elected to the highest office with her record of malfeasance.
People. People. Let’s get back to intent. The case against Hillary will be determined by intent.
Here is a source that is easy to understand and addresses intent (mens rea).
http://dailycaller.com/2015/09/21/eight-laws-hillary-clinton-could-be-indicted-for-breaking/
The Daily Caller article makes clear that there is no need for criminal intent, just intent to commit the prohibited act.
“The prohibited conduct is the unauthorized removal of classified information from government control or its retention in an unauthorized location. The mens rea required is the intent to remove from government control or the intent to store the classified information in an unauthorized location.”
The deliberate existence of Hillary’s server and her routing of classified information to it demonstrates the requisite mens rea. Not to mention the failure to disclose or produce, avoiding FOIA obligations and more.
There can be no question of a prima facie case against Clinton. All there is to discuss is how she will avoid responsibility, not whether she will.
Yeah, JM, I think you’re over-interpreting this. As SoS, she should have set the standard for protecting national security interests for the cabinet department she led. There’s simply no excuse for exposing the nation’s secrets to such risks.
Her intent should have been to safeguard the nation’s interests. It was anything but that, as evidenced by conducting all her electronic communication on an unsecure server.
I think there existed more than enough evidence of mens rea months ago. Of course there are the emails in the most recent batch with her instructing lower-ranking individuals to remove security markings, and to send classified fax’s over an unclassified system. That’s bad enough. But it came out some time ago that there were email messages and other data from NRO. NOTHING comes from NRO at less than SCI classification, and it is inconceivable that she did not know it.
Steve C , I agree. See my post from January 8. The only difference is I see a pardon.
First off, be wary of the “leaks”. They could be reliable, or a couple of P’d off field agents could translate into a fish story of “huge numbers of agents”.
Second, just how are they going to mutiny? Will they quit? Resign their jobs in disgust? Where are they going to go? Local PD’s? Corporate security? Private detectives? Prison guards?Where are they going to earn a living at the kind of pay they had before? These are federal government workers with jobs not easily replicated in the private sector. None of these guys are going to throw their careers away over this. They’ll grumble, and they’ll b***ch and moan, but not a single one will quit their jobs. They’ll be told to go on about their business, never mentioning it again, and they’ll follow their orders. They may not be happy about it, some may spill their guts in a book 20 years down the road… but none of them will actually do anything about it in the present time. And the ones that retire early will be warned to keep their yaps shut, or they’ll be badmouthed by their bosses. “An unreliable, polically motivated agent. If he’d hadn’t retired, we’d have fired him“.
The two are related. Agencies can make life miserable for an administration by leaking damaging information.