Secretary of State Hillary Clinton’s systematic evasion of federal recordkeeping requirements involved both the use of private email addresses and a server system installed in her Chappaqua manse. The servers, according to the Washington Free Beacon, may have been set up by shady longtime Clinton lackey Eric Hothem – under a false name (Eric Hoteham) slightly varied from his true name. It may also have been designed to give users the ability to erase emails without a trace.
Shannen Coffin’s excellent column today points out that Mrs. Clinton’s Clintonesque shenanigans not only appear to be a clear violation of the Federal Records Act; she may also have violated a federal penal statute that makes it a felony for the custodian of government records to conceal or otherwise tamper with them.
I think there are other potential criminal violations as well. We don’t know enough about the former secretary of state’s emails yet to make a judgment about whether they involved classified matters – which could trigger liability under the espionage act (which governs the maintenance and severely limits the permissible disclosure of national security secrets). It is hard to imagine that no classified matters are implicated, but let’s set that aside for the moment.
As I have pointed out before in connection with government leaks, the embezzlement statute (Section 641 of the federal penal code – Title 18) may also be relevant. Embezzlement generally refers to the theft of money, but the federal statute extends the concept to cover government records and other property as well.
Specifically, the statute makes it a crime, punishable by up to 10 years’ imprisonment, for anyone (does not have to be a custodian or even a government official) to embezzle, steal, purloin or knowingly convert for the use of herself or others “any record … or thing of value of the United States or of any department or agency thereof.” It similarly criminalizes the receipt, concealment or retention of such embezzled or purloined government records. Under federal law, emails constituting government business conducted by government officials are government records.
Much has justifiably been said today about the importance of issuing subpoenas to compel production of Mrs. Clinton’s private email records. That should only be the beginning of the investigation. It takes a great deal of time and effort to maintain, service, repair and operate servers. Who was involved in that project? Who had access?
And who knew about the external email system and facilitated its operation? As secretary of state, Clinton was surrounded by several longtime aides, including Cheryl Mills, Jake Sullivan and Huma Abedin. Mills and Sullivan have already been implicated by a witness in a scheme to purge embarrassing documents from the materials the State Department provided to Mrs. Clinton’s hand-picked Accountability Review Board that investigated security lapses surrounding the 2012 Benghazi massacre. It is known, moreover, that then-Secretary Clinton created an ethically dubious arrangement that allowed Abedin to work for private clients – at a Clinton-connected consulting firm – while remaining on the State Department payroll as a top adviser.
The Obama Justice Department may want no part of this, but congressional committees ought to be getting very busy.
From my most recent NRO article, on out-of-control prosecutors: “Every week seems to bring new revelations of the need for reform of the U.S. criminal-justice system. The most vivid recent example has been a flurry of warnings from the bench in California against corrupt and lawless prosecutors.”
Whether you agree or disagree, your comments are, as always, most welcome.
Conservative columnist Charles Krauthammer said the scandal over Hillary Clinton’s use of a private email account and server during her time at the State Department is classic Clinton, saying the term “Clintonian was invented” for the “fine distinctions between legal and illegal” seen in the case.
On Fox News’s “Special Report” on Wednesday, Krauthammer wondered why Clinton would have gone through the trouble to set up a private server in her home without having a wish to hide information from the public.
“If you want to make something disappear by swapping out a server, you can do it, nobody knows,” he said. “Now why would you do that, if you’re Secretary of State and you’re not intending to do something secretive about it?”
“The Clintons aren’t just entitled, they also have a sense that they are to be protected in a way no one else is,” Krauthammer continued. “And then they end up, when they’re accused of violating either the law or the practice, making distinctions that are — I mean, the adjective ‘Clintonian’ was invented for these fine distinctions between legal and illegal, proper and improper.”
“This is a version of, ‘It depends what the word is, is,’” he finished, referencing Bill Clinton’s famous response to lying under oath about his affair with Monica Lewinsky.
Calling the new Department of Justice investigation on widespread discrimination in the Ferguson, Mo., justice system a “witch hunt,” Milwaukee County Sheriff David Clarke said he was “not buying one word” of the report.
Released on Wednesday, the report alleges that Ferguson police routinely targeted African Americans for traffic stops and other small infractions, charging detainees with multiple crimes in the process. But in an interview with Fox News’s Neil Cavuto, Sheriff Clarke rejected the department’s findings.
“Two words: witch hunt,” he began. “The pattern is there — some of the inflammatory rhetoric we’ve heard from the attorney general of the United States, Eric Holder.”
Clarke accused Holder of having a “predetermined mindset going into this investigation,” adding that “he’s not buying one word of his conclusion.”
“I think it’s a sad day, I really do,” he continued. “I think that Eric Holder has an animosity, a genuine hostility toward local law enforcement – specifically toward white police officers. He truly believes that every white police officer is a stone-cold racist.”
Here’s another fun oops-what-have-we-just-done? story, from PC World:
Net neutrality and 5G may be on a collision course as the mobile industry tries to prepare for a wide range of mobile applications with differing needs.
The net neutrality rules passed by the U.S. Federal Communications Commission last week have raised some eyebrows at Mobile World Congress this week. The full text of the rules isn’t public yet, but mobile movers and shakers are having their say. The latest questions involve 5G, the next-generation standard that everyone here is trying to plan for.
The most common thing they think 5G will have to do is to serve a lot of different purposes. Regulators’ attempts to ban “fast lanes” and other special treatment might make that impossible, people who’ve been thinking about 5G said Wednesday.
Amazingly, when you hand over the key to the government — especially when you haven’t been able to read its plans — it tends to prove itself incapable of accommodating nuance:
Industrial sensors, self-driving cars and other emerging uses of the Internet have needs that can’t be met by a general-purpose network, Ericsson Group CTO Ulf Ewaldsson said during a panel discussion. That’s driving a global discussion on a so-called “industrial Internet” alongside the regular Internet that’s grown up around the Web and other consumer activities, he said.
Regulatory efforts like the FCC’s rules don’t see a distinction, Ewaldsson said. He didn’t slam the agency for this but said the mobile industry needs to do a better job of explaining what it’s trying to do. Most importantly, it’s not trying to block or throttle people’s access to the Internet, he said.
So? Yesterday, that wasn’t a problem. Today, it is. Why? Because now there is a federal agency involved, and it has a bunch of power that it didn’t before. Good luck to Mr. Ewaldsson. Good luck to Netflix. Good luck to Google. Good luck to the Electronic Frontier Foundation. Good luck to the Progressive Policy Institute. Good luck to the Internet Society. You made your bed. Now lie in it.
A new Department of Justice report on the shooting death of Michael Brown in Ferguson, Mo. last year confirms that Brown did not surrender with his hands up as he approached police officer Darren Wilson.
In the aftermath of Brown’s death in August, some witnesses claimed that Wilson shot and killed Brown despite the latter’s attempt to turn himself in by putting his hands above his head. “Hands Up, Don’t Shoot” went on to become a rallying cry for activists who viewed the incident as an example of widespread use of racial profiling and excessive force by police.
The DOJ report, which clears Wilson of any civil-rights violations, finds that there is not enough evidence to back up those witnesses’ claims, or to suggest that Wilson wasn’t concerned for his safety. “There is no evidence upon which prosecutors can rely to disprove Wilson’s stated subjective belief that he feared for his safety,” the report said, according to the New York Times.
The report also concludes that the available evidence — including various contradictions that emerged in some witnesses’ testimony during follow-up questioning – suggests that Brown did not try to surrender to Wilson. From the Times:
“Some of those accounts are inaccurate because they are inconsistent with the physical and forensic evidence; some of those accounts are materially inconsistent with that witnesses’ own prior statements with no explanation,” the report said.
“Although some witnesses state that Brown held his hands up at shoulder level with his palms facing outward for a brief moment, these same witnesses describe Brown then dropping his hands and ‘charging’ at Wilson,” it added.
“Those witness accounts stating that Brown never moved back toward Wilson could not be relied upon in a prosecution because their accounts cannot be reconciled with the DNA bloodstain evidence and other credible witness accounts.”
The report does find that the Ferguson Police Department exhibited a systemic racial bias in its policing efforts, with its officers singling out and targeting black residents for various violations, and exchanging multiple racist jokes in emails.
This headline, from Bloomberg, says it all: “Clinton’s E-Mail System Built for Privacy Though Not Security.”
Of course it was. You don’t do what Clinton did unless you want to keep full control of your conversations:
“What we know is that she cared about that communication channel so much that she went out of her way,” and likely hired an expert to configure it for her, [an expert] said in a phone interview.
That, naturally, is why the system was strong on this:
“You erase it and everything’s gone,” Matt Devost, a security expert who has had his own private e-mail for years. Commercial services like those from Google Inc. and Yahoo! Inc. retain copies even after users erase them from their in-box.
And weak on this:
Although Clinton worked hard to secure the private system, her consultants appear to have set it up with a misconfigured encryption system, something that left it vulnerable to hacking, said Alex McGeorge, head of threat intelligence at Immunity Inc., a Miami Beach–based digital security firm.
That’s fine if you’re Bono. But not if you’re the top diplomat in the United States:
In order to ensure her e-mails were private, Clinton’s system appeared to use a commercial encryption product from Fortinet — a good step, McGeorge said.
However, when McGeorge examined the set-up this week he found it used a default encryption “certificate,” instead of one purchased specifically for Clinton’s service. Encryption certificates are like digital security badges, which websites use to signal to incoming browsers that they are legitimate.
“It’s bewildering to me,” he said. “We should have a much better standard of security for the secretary of state.”
No, we should have had a much better standard of secretary of state.
Despite a Department of Justice report clearing Ferguson, Missouri police officer Darren Wilson of any wrongdoing in the death of Michael Brown, on Tuesday lawmakers from the Congressional Black Caucus continued to call the failure to prosecute Wilson a “miscarriage of justice.”
At the conclusion of a press conference following the release of two DOJ investigations – one clearing Wilson and the other alleging widespread racial discrimination in the Ferguson justice system — CBC chairman G.K. Butterfield took a question from the press.
“The attorney general announced that they would not be charging Darren Wilson with any crimes relating to Michael Brown’s death,” a reporter asked. “I know that you had said you were extremely disappointed in that. I was hoping you can detail a little bit more your feelings on that, and also the specific detail that Michael Brown didn’t have his hands up when he was fatally shot.”
“Uh, we want to deal with this more in a macro sense,” Butterfield began, “overhauling the entire justice system.”
“And we know there was a miscarriage of justice at the local level,” William Clay (D., MO) interjected. “On the part of the St. Louis county prosecutor, the way the case was presented to the grand jury. The faults of the grand jury system. All of that came into play in this case. And it’s unfortunate, and I’m going to leave it there.”
Has Netflix changed its mind about the FCC? Variety suggests that it has:
Netflix appears to have backtracked on its previous position that broadband Internet service should be regulated by the U.S. government as a telecommunications utility.
Last year, Netflix urged the FCC to reclassify broadband as a telecom service, under Title II of the Communications Act. In a July 2014 filing, Netflix said that “Title II provides [the FCC with] a solid basis to adopt prohibitions on blocking and unreasonable discrimination by ISPs. Opposition to Title II is largely political, not legal.”
Now Netflix, it seems, is having second thoughts about Title II regulation of broadband.
On Wednesday, Netflix chief financial officer David Wells, speaking at the 2015 Morgan Stanley Technology, Media & Telecom Conference, said the company wasn’t happy with the FCC move. He said that, while the streaming-video company wanted to see “strong” net neutrality measures to ensure content providers would be protected against ISPs charging arbitrary interconnection fees, Netflix would have preferred a lighter regulatory touch.
“Were we pleased it pushed to Title II? Probably not,” Wells said at the conference. “We were hoping there would be a non-regulated solution.”
If only someone had warned these companies that you can’t ask the crocodile to bite you just a little bit.
New York Times reporter John Harwood tweeted this morning: “worth restating: legal issues aside, chances that ACA authors intended it to work the way challengers say it must work are exactly zero.” It’s a common enough line of argument. But what does it prove?
The ACA authors “intended”—in the sense of hoped for—a lot of things. They intended for the CLASS Act to work, instead of essentially self-destructing and then having to be repealed. They intended for the law to become popular and for most states to participate fully. Most of all, though, they intended for the bill they wrote to be the law.
The bill they wrote appears at first and second glance to condition subsidies on a state’s establishment of an exchange. The typical congressman who voted for the bill surely had no conscious thought one way or the other about that conditionality. He never gave a moment’s thought to the questions, What if a bunch of states refuse to set up an exchange? Do people get subsidies on the federal exchange? So it’s a mistake to try to divine the legislators’ “intent” and decide the case accordingly. The relevant intent just isn’t there.