The Brand-New "Hillary Defense"

Even here in Virginia, the CVS carries newspapers (remember them?) from around the country.  So we were treated to a headline Wednesday in a New York tabloid the CVS had down here, showing Hillary Clinton floating across the page on ice skates and captioned "Hillary Skates."

I wrote the other day that the "exoneration" by the FBI, or at least the lack of plan to prosecute her on the email handling and gross mishandling of classified information, could be a great gift to Republicans if they manage the situation properly.  I hear now a similar sentiment amongst those on the more conservative broadcast news shows, that this is a real opportunity to put her far on the defensive, having removed her "victim" defense.

But there's another "defense" question we have to ask.

Actions have consequences.  If I understand the the justice system right, at any level there is an investigative entity, a prosecutorial entity and a judicial entity.  The investigators dig up the facts, hand it over to the prosecutor who decides if there is enough evidence to go to trial, comparing evidence to the law itself, and then the trial is administered by the judicial system.

Here, the FBI were the investigators -- like the police detectives in a local case.  They found the kind of gross negligence in the handling of classified information, repeatedly, exactly as described in the applicable U.S. Code.  To me, it seemed like there was sufficient evidence relative to the letter of the law to bring the case, at the very least, to a grand jury to decide whether to bring charges.  Let a grand jury decide how well the evidence stacks up against whatever the legal standard is to bring the charges.

But no.

FBI Director Comey made the leap that "intent" was necessary, because no similar cases had been brought for prosecution before and to indict her would set a precedent.

So what.

Not bringing an indictment (still only a first step) set a precedent all by itself.  Interpreting a need for "intent" without letting a Federal court (and then likely an appeals court) determine if "intent" was in the law (it wasn't) set a precedent.  And now that precedent has to be looked at -- the brand, spanking-new "Hillary defense."

In the Hillary defense for violations of, at least, Section 793(f) of U.S. Code 18, you can be as sloppy as you like in the handling of classified material, as long as no one can prove beyond a reasonable doubt that you intended to release classified material to a hostile party.

So how does that defense worm its way into the world of industrial security -- the way that Federal contractors have extremely secure facilities for managing and using classified information?  What happens when someone leaves a document outside the secure facility by accident and gets her clearance yanked?  Does she go to a lawyer and wave the Hillary defense around, and maybe even sue the contractor for failure to follow Government precedent?

What happens when someone does release classified documents but no one can prove intent (like if North Korea funded a secret Swiss bank account for the leaker)?  How do you even prosecute that anymore, given the precedent for interpreting a need for "intent" into 18 U.S. Code Section 793(f) that didn't previously exist?

People with clearances are trained every year at the least as to how you handle material.  We are taught that classification relates to the information itself, not what kind of markings appear.  We are taught to make the most secure judgment in its handling -- if you are not sure, assume a higher level of classification and protect it.

We are taught the opposite of doing things for convenience.  We are taught to default to protection, to default to securing data and documents, to default to assuming the worst.

Now that has been shredded by the decision to impute "intent" into a law regarding all that.  No longer are we required to be as protective as we were, because Hillary skated.

The FBI did not even afford the American people, whose security was what was compromised by her actions, the right to a grand jury hearing to protect us from the next Hillary, by considering the case against this one.  Agents who investigated this must be livid.

And you know what?  This precedent is going to show up again, and a lot sooner than the American people are going to wish it would.

Because it will be cited, and now the Major Jason Brezler case already has.

Copyright 2016 by Robert Sutton
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