gross negligence

February 25, 2019 – DOJ prevented the FBI from pursuing gross negligence charges against Clinton

“The DOJ required the FBI to establish evidence of intent in regards to Clinton—even though the gross negligence statute explicitly does not require this.

This meant that the FBI would have needed to find a smoking gun, such as an email or an admission from Clinton.

The word “intent” drove the entirety of the FBI’s investigation.

Anderson viewed intent as “an email that the Secretary sent saying, I set up this server for the purpose of sending unclassified information for my convenience, even though I know it’s not a secure system.”

According to House Majority Counsel at the time of Priestap’s interview, the State Department had identified 22 top-secret emails and 1,300 classified emails on Clinton’s email server.

Included within Clinton’s emails was “classified information up to the Special Access Program level.”

The classification level of SAPs is so high that Anderson refused to define her understanding of SAPs in the unclassified interview setting before congressional investigators

An email sent from an unknown individual in the FBI general counsel’s office to Priestap’s former boss, Michael Steinbach, contained a chart of available statutes for prosecuting Clinton.

Gross Negligence was specifically excluded.

Lisa Page appeared to indicate during her testimony that because of the DOJ’s position, there was no reason for the FBI to even pursue evidence related to the specific statute of gross negligence.

Under Anderson’s understanding of the DOJ’s standard, the extreme volume of emails was not a factor, nor was the classification level of the emails, as long as those being investigated were able to say they simply didn’t know any documents were actually classified.

Despite this, not everyone within the FBI agreed w/the DOJ.

FBI General Counsel James Baker:

“I thought these folks should know that this stuff is classified, that it was alarming what they were talking about, especially some of the most highly classified stuff.”

Page, Baker, and Anderson all testified that the gross negligence statute was rarely, if ever used, as part of their explanation for the DOJ’s unwillingness to pursue, but this logic was repeatedly challenged by then-majority House counsel Breitenbach.

Breitenbach:

“If part of that rationale was that it had never been used, then, by extension, one might presume that other statutes that are on the books, if they aren’t being used, should not be ever considered as predication for a prosecution.”

Anderson, the #2 lawyer at the FBI, was asked about her understanding of the difference between gross negligence and extreme carelessness.

Anderson answered that she didn’t “know exactly what the precise difference is between extremely careless and gross negligence.”

Which begs the question of why Anderson, among others, felt compelled to push Comey to change the language within his statement from the legal term of gross negligence to the non-legal term of extremely careless.

According to Anderson’s testimony, the FBI never even looked into negligence due to the DOJ’s legal position:

The issue at the heart of the Clinton email investigation was summarized by Breitenbach:

“The Department of Justice made a decision that intent was required, even though we have a statute on the books that does not require intent that [only] requires gross negligence.”

Absent a major error on her part, it appears that Clinton was effectively in the clear from the outset of the FBI investigation due to the DOJ’s decision to require intent.17)

Postscript:

With the exceptions of Moffa, Evans, and Hickey, every individual from the FBI and DOJ mentioned in the article has either been fired or has resigned.

Most have been the subject of congressional interviews.
(Jeff Carlson@themarketswork, 2/25/2019)   (Full Article: The Epoch Times, 2/25/2019)

(Republished in part with permission)

October 3rd & 18th, 2018 – Transcripts of former top FBI lawyer details a belief Clinton should have been charged for her “alarming, appalling” mishandling of classified info

(Credit: Conservative Treehouse)

“[James] Baker served as the FBI’s general counsel when the bureau investigated the Trump campaign and Hillary Clinton’s use of an unauthorized private email server. During two days of testimony on Oct. 3 and Oct. 18, he told lawmakers that he believed even toward the end of the Clinton investigation that she should have been charged over her “alarming, appalling” mishandling of classified information.

He argued with others, including then-FBI Director James Comey, about the issue all the way toward the end of the investigation, but was ultimately persuaded that Clinton should be exonerated.

“My original belief … after having conducted the investigation and towards the end of it, then sitting down and reading a binder of her materials, I thought that it was alarming, appalling, whatever words I said, and argued with others about why they thought she shouldn’t be charged,” Baker told lawmakers.

As of October 2018, nearly two years after the Clinton probe concluded, Baker still believed that the conduct of the former secretary of state and her associates was “appalling” with regard to the handling of classified information.

(…) As general counsel, Baker advised senior FBI leaders on the legal aspects of key investigations and served as the liaison with the Department of Justice (DOJ). In testimony, he detailed a series of unusual steps he took in the Trump-Russia investigation, including serving as the conduit between Perkins Coie—the firm working for the Clinton 2016 presidential campaign and the Democratic National Committee (DNC)—and the FBI.

Baker left his position as general counsel in early January 2018 and then resigned from the FBI in early May 2018.” (Read more: Epoch Times, 1/18/2019)

July 13, 2018 – Lisa Page testifies and an internal chart reveals, the Obama DOJ was ‘not willing to charge’ Clinton on key espionage statute

“An internal chart prepared by federal investigators working on the so-called “Midyear Exam” probe into Hillary Clinton’s emails, exclusively reviewed by Fox News, contained the words “NOTE: DOJ not willing to charge this” next to a key statute on the mishandling of classified information. The notation appeared to contradict former FBI Director James Comey’s repeated claims that his team made its decision that Clinton should not face criminal charges independently.

Fox News has confirmed the chart served as a critical tip that provided the basis for Texas Republican Rep. John Ratcliffe’s explosive questioning of former FBI lawyer Lisa Page last year, in which Page agreed with Ratcliffe’s characterization that the DOJ had told the FBI that “you’re not going to charge gross negligence.” A transcript of Page’s remarks was published Tuesday as part of a major document release by the ranking Republican on the House Judiciary Committee, Georgia Rep. Doug Collins.

The document, entitled “Espionage Act Charges – Retention/Mishandling,” contained a list of several criminal statutes related to the mishandling of classified information, as well as a list of all the elements that prosecutors would need to prove in order to successfully prosecute a case.

Among the statutes listed are 18 U.S.C. 793(d), which covers the “willfull” retention of national defense information that could harm the U.S.; 18 U.S.C. 793(f), which pertains to “gross negligence” in the handling of classified information by permitting the information to be “removed from its proper place of custody”; and 18 U.S.C. 1924, listed as a misdemeanor related to retaining classified materials at an “unauthorized location.”

Listed directly below to the elements of 18 U.S.C. 793(f) were the words: “NOTE: DOJ not willing to charge this; only known cases are Military, cases when accused lost the information (e.g. thumb drive sent to unknown recipient at wrong address.)

None of the other descriptions of the statutes had a similar notation.” (Read more: Fox News, 3/14/2019)

July 13, 2018 – Lisa Page testifies she was unaware the ICIG briefed top bureau officials on an anomaly found embedded in Clinton’s server that sent a copy of her emails to a third party

On August 29, 2018, The Daily Caller News Foundation reports, “The FBI refuses to disclose whether or not it met with senior members of the Intelligence Community Inspector General on the subject of foreign intrusion of former Secretary Hillary Clinton’s private server.

An FBI spokeswoman refused to confirm if Intelligence Community Inspector General (ICIG) officials — including Frank Rucker, its chief investigator — briefed top bureau officials about evidence of penetration of Clinton’s private server by a Chinese government intelligence operation. “We have no comment,” she told The Daily Caller News Foundation.

Earlier Wednesday, an FBI spokesman released what appeared to be a categorical statement about the Clinton server: “The FBI has not found any evidence the servers were compromised,” the FBI stated.

The statement does not address a central aspect of The DCNF’s reporting, which was that the ICIG briefed top bureau officials on three separate occasions to warn the FBI of an “anomaly” they found in 30,000 in-bound and outgoing emails. The report is based on an intelligence official with direct knowledge of the matter. The anomaly showed a code embedded in Clinton’s server was producing in real time a “courtesy copy” to a third party.” (Read more: The Daily Caller, 8/29/2018)

Former FBI lawyer Lisa Page arrives for a closed door hearing with the House Judiciary and House Oversight committees, Friday, July 13, 2018. (Credit: Jacquelyn Martin/The Associated Press)

On January 11, 2019, Jeff Carlson writes of his exclusive access to the July 13, 2018 transcript of Lisa Page’s testimony to a joint congressional committee and she is asked why the FBI didn’t meet with Mr. Rucker and the ICIG team to further investigate the “anomaly” found embedded in Clinton’s private server:

“During one exchange, one of the representatives questioning her noted, “We have information from the inspector general of the intelligence community … that there were anomalies that would suggest that there were copies of every email going to a third party. … Is this news to you

Page admitted it was and noted it was “completely baffling to me.”

She was then asked the obvious question: “Why would the investigative team not have had multiple interviews with Mr. Rucker, who brought it to the FBI’s attention originally?”

Page responded by saying the following:

“My understanding is that the IC IG [Intelligence Community Inspector General] did refer the existence of the server to the FBI, but that was because of the existence of classified information on that server, not because of any anomalous activity, not because of potential intrusion activity. Because it’s not my understanding that the IC IG conducted any sort of forensic analysis like that.”

The questioning continued:

“So what you’re telling me, it would surprise you to know today that, if there were anomalies, that the inspector general’s forensic team found those before it was referred to the FBI?”

Page responded:

“To the extent that a foreign government or even a criminal outlet had had access to Secretary Clinton’s private email server, that would have been something we cared very much about. And it’s my understanding that there was no evidence that would have supported that kind of conclusion.”
(Read more: Epoch Times, 1/11/2019)

July 13, 2018 – Lisa Page testimony reveals the DOJ prevented the FBI from pursuing gross negligence charges against Clinton

(…) “Lisa Page, an FBI lawyer who served as special counsel to Deputy FBI Director Andrew McCabe during the time of the Clinton investigation, noted during her testimony in July 2018, that the DOJ was intimately involved in the investigation.

“Everybody talks about this as if this was the FBI investigation, and the truth of the matter is there was not a single step, other than the July 5th statement, there was not a single investigative step that we did not do in consultation with or at the direction of the Justice Department,” Page told congressional investigators on July 13, 2018.

Comey had also hinted at the influence exerted by the DOJ over the Clinton investigation in his July recommendation, stating that “there are obvious considerations, like the strength of the evidence, especially regarding intent.”

Intent is a requirement of several statutes the FBI was looking into. But intent is specifically not a factor under the charge of gross negligence—contained within 18 U.S. Code § 793(f)—a fact that was brought up by Rep. John Ratcliffe (R-TX) during Page’s testimony:

John Ratcliffe (Credit: CSpan)

Rep. Ratcliffe: Okay. And that’s — I think, when you talk about intent, that’s certainly true under part of 18 793(f), but it sounds like you all just blew over gross negligence.

Ms. Page: We did not blow over gross negligence. We, in fact — and, in fact, the Director — because on its face, it did seem like, well, maybe there’s a potential here for this to be the charge. And we had multiple conversations, multiple conversations with the Justice Department about charging gross negligence.

Page made clear during her testimony that the DOJ had decided that due to “constitutional vagueness” a charge of gross negligence would not be supported without accompanying proof of intent—a seemingly oxymoronic position:

Rep. Ratcliffe: Okay. So let me if I can, I know I’m testing your memory, but when you say advice you got from the Department, you’re making it sound like it was the Department that told you: You’re not going to charge gross negligence because we’re the prosecutors and we’re telling you we’re not going to —

Ms. Page: That is correct.

Rep. Ratcliffe: — bring a case based on that.

Trouble Defining Intent

The word “intent” drove the entirety of the FBI’s investigation into the Clinton email server.

It appears, however, that there were differing understandings of the word “intent” within the FBI. Trisha Anderson, the No. 2 lawyer at the FBI, told investigators that what she viewed as intent was “an email that the Secretary sent saying, I set up this server for the purpose of sending unclassified information for my convenience, even though I know it’s not a secure system.”

Page viewed the situation somewhat differently, agreeing they were looking for “an intent to do an act which is in violation of the law’s central command.” As she told investigators, the FBI “couldn’t find any indicia of knowledge that she knew that these [classified emails] shouldn’t be traversing her server.”

In Anderson’s understanding, she was looking for a prosecutable reason behind the establishment of the server itself. Page, however, was looking at whether Clinton knew which emails should not have traveled through the private server.

Meanwhile, Bill Priestap, head of the FBI’s counterintelligence division and who was officially in charge of the Clinton investigation, said during testimony that he thought the “number of instances is absolutely a proper consideration” in establishing intent.

According to Ryan Breitenbach, who was the House Majority Counsel at the time of Priestap’s interview, the State Department had identified 22 top-secret emails and 1,300 classified emails on Clinton’s email server. As Breitenbach noted to Priestap during testimony, “I think there might be many who would question whether people in this room would still be in this room if we had hit 1,300 emails on our personal Gmail service.”

DOJ Not Willing to Charge This

Michael Steinbach (Credit: CSpan)

Priestap was shown an email sent from an unknown individual in the FBI general counsel’s office to Priestap’s former boss, Michael Steinbach, which contained a chart of “available statutes for prosecuting the former Secretary of State.” Gross Negligence was specifically excluded from the chargeable statutes available to the FBI. Priestap, who had not previously seen the document, expressed concerns that this might have hindered the work of FBI investigators.

Mr. Breitenbach: We see in this chart that DOJ is not willing to charge this, meaning 18 U.S.C. 793(f). My question is going back to those draft affidavits. If DOJ is not willing to charge this statute, why would the FBI in an affidavit use this statute as predication to obtain a search warrant if this statute is never going to be prosecuted?

Mr. Priestap: So I — I don’t know who put this together and used this language.

Mr. Breitenbach: Well, someone in the FBI general counsel’s office.

Mr. Priestap: Yeah. No. No. I trust you. But I don’t know why they, again, put it together. I don’t know why they used this language, ‘DOJ not willing to charge this.’

My attitude is that if there is a Federal criminal statute still on the books, then, you know — and we think there may or might be a violation of that, we still have to work to uncover whether, in fact, there was.

The prosecutive history of a particular statute isn’t going to affect — I sure hope it does not affect the fact-finder’s work.” (Read more: The Epoch Times, 2/25/2019)

September 6, 2016 – Hillary compromised classified materials representing the full range of American espionage: human intelligence, signals intelligence, and imagery intelligence

Democratic presidential candidate Hillary Clinton is introduced during a campaign stop Friday, Jan. 22, 2016, in Rochester, N.H. ((Credit: /Matt Rourke/The Associated Press))

(…) “Hillary compromised classified materials representing the full range of American espionage: human intelligence or HUMINT from CIA, signals intelligence or SIGINT from NSA, and imagery intelligence or IMINT from NGA.

Of those 81 classified email chains, the FBI assessed that 37 of them included Secret information while eight included Top Secret information. Worse, seven email chains included Special Access Program or SAP information, which is tightly protected by the Intelligence Community and shared on a restricted, need-to-know basis only.

Three more email chains contained Sensitive Compartmented Information or SCI, which was almost certainly SIGINT from NSA. SCI always requires special protection and handling. In fact, you’re only allowed to access it inside a specially-built Sensitive Compartmented Information Facility, a SCIF (pronounced “skiff”) in spy-speak. Any exposure of SCI brings severe penalties—at least if you’re not named Clinton.

It’s nice to see the FBI finally confirm just how much highly classified information got exposed here, but I reported this many months ago from Intelligence Community sources, including that Hillary’s “unclassified” emails included Top Secret SAP information from CIA and Top Secret SCI information from NSA.

Which leads to a troubling matter: What the FBI did not mention in its big data dump on EmailGate.

As I told you in this column back in January, Hillary emails included very highly classified intelligence from NSA. In early June 2011, the secretary of state received a long email from her longtime friend and factotum Sid Blumenthal regarding Sudan. This was an astonishingly detailed assessment of high-level political and military machinations in that country, specifically inside information about coup plotting.

This explosive information was timely and deep in the weeds on Sudanese happenings. It’s difficult to see how Blumenthal—a lawyer and Washington fixer, no sort of Africa hand or James Bond—got his hands on such juicy intelligence. As I’ve noted, “Blumenthal’s information came from a top-ranking source with direct access to Sudan’s top military and intelligence officials, and recounted a high-level meeting that had taken place only 24 hours before.” How did Sid obtain this amazing scoop for Hillary?

If Hillary Clinton becomes our next president, we can be certain that her trusty sidekick Sid Blumenthal will have an important role in her White House.

Not to mention that, in terms of verbiage and format, Blumenthal’s email read exactly like classified NSA reporting, as anybody acquainted with our SIGINT would immediately recognize. As one veteran agency official told me back in January, Blumenthal’s email was NSA information with “at least 90 percent confidence.”

Which was no coincidence, since an NSA investigation subsequently determined that Blumenthal’s Sudan assessment was derived from their reporting—in some cases, verbatim.  As I reported in March, NSA concluded that Blumenthal’s Sudan report came from four different agency SIGINT reports, all classified Top Secret/SCI. Then it got worse:

At least one of those reports was issued under the GAMMA compartment, which is an NSA handling caveat that is applied to extraordinarily sensitive information (for instance, decrypted conversations between top foreign leadership, as this was). GAMMA is properly viewed as a SIGINT Special Access Program, or SAP, several of which Clinton compromised in another series of her “unclassified” emails.

NSA had no doubt that Blumenthal somehow got his hands on some of their “crown jewels” information. “It’s word-for-word, verbatim copying,” an agency official of them explained. “In one case, an entire paragraph was lifted from an NSA report” that was classified Top Secret/SCI. To add to the mystery, Sid emailed Hillary his “personal” assessment on Sudan only hours after some of those classified NSA reports were issued.

Somehow Sid Blumenthal—who in 2011 was not working for the U.S. government in any capacity and had not held security clearances in a decade—was reading above-top-secret NSA reports just hours after they appeared in tightly restricted GAMMA channels.” (Read more: The Observer, 9/06/16)

Comey says he didn’t recommend Clinton be charged because he couldn’t prove intent, despite the gross negligence law.

In Congressional testimony, FBI Director James Comey essentially argues that Clinton was guilty of gross negligence, which doesn’t require proof of intent, but he was only willing to indict her on intent-related charges, and there wasn’t enough evidence for that. He says: “Certainly, she should have known not to send classified information. As I said, that’s the definition of negligent. I think she was extremely careless. I think she was negligent. That, I could establish. What we can’t establish is that she acted with the necessary criminal intent.” (CNN, 7/7/2016)

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Representative William Hurd (Credit: Alchetron)

Representative William Hurd (R) asks, “What does it take for someone to misuse classified information and get in trouble for it?”

Comey answers, “It takes mishandling it and criminal intent.” He admits that Clinton mishandled the information by having it on a private server, but he doesn’t see evidence of criminal intent. (CNN, 7/7/2016)

He further comments, “There’s not evidence beyond a reasonable doubt that she knew she was receiving classified information or that she intended to retain it on her server. There’s evidence of that, but when I said there’s not clear evidence of intent, that’s what I meant. I could not, even if the Department of Justice would bring that case, I could not prove beyond a reasonable doubt those two elements.” (CNN, 7/7/2016)

At another point in the hearing, he argues, “The question of whether [what she did] amounts to gross negligence frankly is really not at the center of this because when I look at the history of the prosecutions and see, it’s been one case brought on a gross negligence theory.” (CNN, 7/7/2016)

The law criminalizing gross negligence in national security lapses was enacted in 1917. Comey says, “I know from 30 years there’s no way anybody at the Department of Justice is bringing a case against John Doe or Hillary Clinton for the second time in 100 years based on those facts.”

160707JamesJSmithCNN

James Smith (Credit: CNN)

The FBI later confirms to Politico that James Smith is the one case Comey is referring to. Smith, a longtime FBI agent, was arrested in 2003 and charged with gross negligence. However, he later pleaded guilty in return for having the charges reduced to one count of making false statements. (Politico, 7/7/2016)

But Comey’s claim that gross negligence has only been used once in recent decades is true only if one looks at cases brought by the Justice Department. Cases have also been brought in the military justice system.

Additionally, Politico points out, “Comey’s universe was also limited to cases actually brought, as opposed to threatened. The gross negligence charge is often on the table when prosecutors persuade defendants to plead guilty to the lesser misdemeanor offense of mishandling classified information.” (Politico, 7/7/2016)

Later in the hearing, Representative Blake Farenthold (R) says, “So Congress when they enacted that statute said ‘gross negligence.’ That doesn’t say ‘intent.’ So what are we going to have to enact to get you guys to prosecute something based on negligence or gross negligence? Are we going to have to add, ‘and oh by the way, we don’t mean — we really do mean you don’t have to have intent there?'”

Comey replies, “That’s a conversation for you all to have with the Department of Justice. But it would have to be something more than the statute enacted in 1917. Because for 99 years, they’ve been very worried about its constitutionality.” (CNN, 7/7/2016)

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Representative Tim Walberg (Credit: Twitter)

Representative Tim Walberg (R) asks him, “Do you believe that the — that since the Department of Justice hasn’t used the statute Congress passed, it’s invalid?”

Comey responds, “No. I think they are worried that it is invalid, that it will be challenged on Constitutional grounds, which is why they’ve used it extraordinarily sparingly in the decades.” (CNN, 7/7/2016)

During the hearing, it is pointed out several times that felony crime based on negligence and not intent are common at both the state and federal level, for intance manslaughter instead of murder, and their consitutionality has never been successfully challenged. At one point, Comey admits other negligence cases have been sustained in the federal system: “They’re mostly, as you talked about earlier, in the environmental and Food and Drug Administration [FDA] area.” (CNN, 7/7/2016)

But he is adamant about not indicting any cases without being able to prove intent. At one point, he even suggests he is philosophically opposed to any laws based on negligence when he mentions, “When I was in the private sector, I did a lot of work with the Chamber of Commerce to stop the criminalization of negligence in the United States.” (CNN, 7/7/2016)

A former FBI assistant director believes Comey could have indicted Clinton for gross negligence, but introduced an intent element that doesn’t apply.

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Ron Hosko (Credit: CNN)

Former FBI Assistant Director Ron Hosko, who worked under FBI Director James Comey, comments on Comey’s decision not to recommend Clinton’s indictment. He believes Comey has “impeccable morality and ethics,” and says, “For an indictment you need probable cause, but prosecutors and investigators are looking for far more. You’re looking down the road at a substantial likelihood of success at trial that’s beyond a reasonable doubt.”

However, Hosko also believes the elements for an indictment were clearly met based on the wording of the federal “gross negligence” statute to which Comey referred in his July 5, 2016 public speech. He notes that Comey stated, “Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.”

Hosko highlights Comey’s use of the phrase “extremely careless.” “To me, that has the same DNA as gross negligence that the statute requires. Those are identical twins.” He says that Comey seemed to introduce an element of intent that is not in that statute. (CNBC, 7/6/2016)

Speaker of the House Ryan says Republicans will hold Congressional hearings to learn more about the FBI’s decision to not recommend an indictment for Clinton.

Congressman Paul Ryan (Credit: public domain)

Congressman Paul Ryan (Credit: public domain)

Paul Ryan, the Republican speaker of the House, says he thought FBI Director James Comey was going to recommend prosecution, based on the first part of Comey’s public speech earlier in the day. He says Comey “shredded” Clinton’s defense of her email practices while serving as secretary of state, she had been “grossly negligent,” and “people have been convicted for far less.”

Ryan says the fact that the FBI decided not to recommend charges “underscores the belief that the Clintons live above the law.” He explains Republican hearings will be lead by House Oversight and Government Reform Committee Chair Jason Chaffetz. Ryan also says Clinton should be blocked from accessing classified information as a presidential candidate, and the FBI should release all of its findings regarding the Clinton email investigation. (The Hill, 7/5/2016)