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Law & the Courts

FBI Looking at ‘Gross Negligence’ Laws in Hillary Server Investigation

From the last Morning Jolt of the week:

FBI Looking at ‘Gross Negligence’ Laws in Hillary Server Investigation

Between Kevin McCarthy’s gaffe, the Benghazi committee staffer who complained the panel’s work was focused on Hillary Clinton, and Bernie Sanders’ decision to declare he’s sick of hearing about her e-mails, the former Secretary of State might feel like she’s put the issue to bed. The last major obstacle? The Federal Bureau of Investigation.

Thanks to Fox News’ Catherine Herridge, we have our first sense of how the FBI investigation is shaping up:

Three months after Hillary Clinton’s use of a private email address and server while secretary of state was referred to the FBI, an intelligence source familiar with the investigation tells Fox News that the team is now focused on whether there were violations of an Espionage Act subsection pertaining to “gross negligence” in the safekeeping of national defense information.

Under 18 USC 793 subsection F, the information does not have to be classified to count as a violation. The intelligence source, who spoke on the condition of anonymity citing the sensitivity of the ongoing probe, said the subsection requires the “lawful possession” of national defense information by a security clearance holder who “through gross negligence,” such as the use of an unsecure computer network, permits the material to be removed or abstracted from its proper, secure location.

Subsection F also requires the clearance holder “to make prompt report of such loss, theft, abstraction, or destruction to his superior officer. “A failure to do so “shall be fined under this title or imprisoned not more than ten years, or both.”

A former FBI agent, who is not involved in the case, said the inconsistent release of emails, with new documents coming to light from outside accounts, such as that of adviser Sidney Blumenthal, could constitute obstruction. In addition, Clinton’s March statement that there was no classified material on her private server has proven false, after more than 400 emails containing classified information were documented.

Does she skate? Ironically, Obama’s words that appeared to defend Hillary may be hindering her by irritating the FBI:

“I don’t think it posed a national security problem,” Mr. Obama said Sunday on CBS’s “60 Minutes.” He said it was a mistake for Mrs. Clinton to use a private email account when she was secretary of state, but his conclusion was unmistakable: “This is not a situation in which America’s national security was endangered.”

Those statements angered FBI agents who have been working for months to determine whether Ms. Clinton’s email setup had in fact put any of the nation’s secrets at risk, according to current and former law enforcement officials.

Investigators have not reached any conclusions about whether the information on the server had been compromised or whether to recommend charges, according to the law enforcement officials. But to investigators, it sounded as if Mr. Obama had already decided the answers to their questions and cleared anyone involved of wrongdoing.

The White House quickly backed off the president’s remarks and said Mr. Obama was not trying to influence the investigation. But his comments spread quickly, raising the ire of officials who saw an instance of the president trying to influence the outcome of a continuing investigation — and not for the first time.

“Injecting politics into what is supposed to be a fact-finding inquiry leaves a foul taste in the F.B.I.’s mouth and makes them fear that no matter what they find, the Justice Department will take the president’s signal and not bring a case,” said Ron Hosko, a former senior F.B.I. official who retired in 2014 and is now the president of the Law Enforcement Legal Defense Fund, who maintains close contact with current agents.

Obviously, the FBI will follow the evidence wherever it leads and offer their assessment based on the law. But isn’t Obama actually making it harder for them to conclude all is well and no crimes were committed? If they concur with the president’s assessment, they look like they knuckled under to political pressure. The easiest way to demonstrate that you’re immune from a president’s effort to steer the investigation away from Hillary is to do the opposite.

Many people might conclude that there’s no way that the Department of Justice would bring criminal charges against the Democratic front-runner in an election year. But if you were the agents, wouldn’t you rather the DOJ took the heat for that conclusion than you?

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