The Clinton E-Mails: The Political versus the Legal Issues: Why she is not a crook

FBI Director Comey’s letter to Congress regarding Hillary Clinton’s emails is a political but not a

legal big deal.  While its political impact is already being seen and its final impact is potentially significant, legally what Comey said and what is likely to come of it is no big deal.  This of course raises the question, why did he do it and what impact will it have?

First why did Comey do it?  Some see a sinister political motive here.  Claims that the Bill Clinton’s  visit with the attorney general on the tarmac lead to a deal to squash prosecution.  This is the conspiracy thesis.  Comey’s letter to Congress is political payback, with him recognizing that he does not keep his job if Clinton is president.  Maybe.  But a more probable theory is that Comey did it to protect the FBI budget.  Congressional Republicans were angry with the decision not to charge Clinton and they were making noise about budgetary retaliation.   This letter might be no more than  organizational politics, and less personal animus or sabotage directed at Clinton.     Now consider the legal issues here. First note that the FBI did not say it was reactivating the criminal investigation against Clinton.  It discovered new emails on a computer owned by Clinton’s top aide in connection with a criminal investigation into her estranged husband’s sexting.  There is no indication as of now there are any classified e-mails here.  Legally nothing has changed here.

But more importantly, even if the FBI finds classified e-mails, it still does not change the legal game.  There are several possible laws that Clinton could have potentially broke, of which only  one is a criminal law.  The main criminal law--Section 1924 of Title 18 of the U.S. Crimes and Criminal Procedure Code–is the most relevant.    Here is what that law says.

Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both.

The critical part of this law is the emphasis on the words “knowingly” and “intent.”  Why is this important?  Criminal law requires the proving of two elements to establish guilt: actus reus and mens rea.  Actus Reus refers to the showing that one factually did a specific thing–such as physically take something–whereas mens rea requires proof of some level of intent.  With the exception of a very few regulatory crimes, there are no strict liability criminal laws in the US.  One has to show some level or type of intentionality to establish guilt, and this proof has to be beyond a reasonable doubt, with the presumption being innocent until proven guilty.

The reason why this is important is that Director Comey had already concluded that in FBI’s  questioning of Clinton she did not intend to deceive.  Moreover, there is no evidence that there was intentionality or knowingly on the part of Clinton that would establish that she violated 18 USC § 1924.  The same would be true of any other alleged criminal violations such as those for perjury and false swearing.   For example, 18 U.S. Code § 793--Gathering, transmitting or losing defense information–states it is “illegal for any person with “the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States.”  This law requires a very specific intent–to bring about harm to the US.  Clinton may be a lot of things but under no circumstances can one argue she is a traitor or wishes to intentionally bring hard to the United States.

The broader point here is that first there is no indication that Comey’s evaluation of new emails is reopening the Clinton criminal investigation.  Second, among the several laws she possibly could have violated, only a few are criminal.  Third, there is no indication that any new emails would likely change anything in terms of establishing the mens rea necessary to establish criminal liability.  In short, the legal situation of Clinton has not changed at all since Friday.

But turning to politics, coming 11 days before the presidential election this story impacted the Clinton campaign in several ways.  While Clinton had appeared to be opening up a near insurmountable lead in national aggregate and swing state polls, and the likes of the NY Times and FiveThirtyEight had just about declared the race over, there were signs even before Friday that she was beginning to slip in the polls.  Some sites claimed she had already lost eight points in the last week, but there are many reasons to discount this big erosion given polling margins of errors and the inclusion of  outlier polls.  Clinton had a lead that was built less out of how good she had been campaigning but more out of how bad Trump had been since the first debate.    Clinton was falling again into over-confidence, and failing to realize the volatility of her support given her still high negatives.

The Comey letter freezes her momentum.  It takes away her narrative and the focus on Trump’s sexual behavior and puts spotlight again on her character.  Clinton is now again in a defensive mode, one that may be difficult to reverse and the Clinton camp knows that; that is why they are so angry.

Potentially this story does not matter.  Lots of people have early voted.  But the early voters are those who made up their mind to vote and for whom.  The battle all along has been to move swing voters and mobilize the base.   Trump’s road to victory is heavy mobilization of his base, dispirit Clinton’s, and discourage swing or marginal voters from showing up for the former Secretary of State.  The new email story re-energizes the Trump base and it may discourage the marginal Clinton supporters and swings from voting.  The election will be won or lost by the remaining 5% or so of the voters who are deciding if and how they will vote.  Early voting may not be great enough to offset how this final 5% decides.

All Things Political: Presidential and in Minnesota

Two topics this week: Clinton’s presidential campaign the awful end of the Minnesota legislative session and why politics favors not calling a special session

Clinton's Problems

Hillary Clinton has a problem and it is not Bernie Sanders. There are lots of reasons to think that her presidential campaign is confronting major problems that could linger beyond he DNC should she secure the party nomination.  This are problems mostly rooted in her candidacy, and less in what others are doing or not.

Consider the polls first.  In the last ten days national polls suggest Donald Trump has pulled even with her.  There are indications that Trump is consolidating support among Republicans and that they are uniting behind him mostly in terms of an Anti-Hillary campaign.    With Trump having clinched the nomination he is free to begin going after Clinton while Clinton has to worry about  still nailing down the Democratic nomination while campaigning against Sanders.  Yes, national polls mean little, especially now as a rule, but given how well known Trump and Clinton are perhaps the polls do tell us something. But second, even if the national polls are not relevant because the race for the presidency is a 50 state contest (due to the Electoral College) that is really only about ten states, Clinton and Trump seem to be tied in critical swing states such as Ohio and Florida.

But this week the polls tightened in California revealing essentially a tied race in that state between Sanders and Clinton.  Clinton supporters dismiss the poll as a fluke or say that California does not matter because with the New Jersey primary coming soon she will secure enough delegates to win the nomination even if she loses California.  Perhaps yes this is true, but she will only have enough delegates to win the nomination if one counts the superdelgates and she has a big lead here over them.  It is not a lead with the superdelegates in a way these delegates are supposed to operate, though.  The idea of the superdelegates is that these individuals are supposed to make to the decision on whom to support after all the primaries and caucuses are done, using their judgment to decide  who is the most electable.  If that were how they were actually rewarded the superdelegates should not have committed to Clinton before the primary season even began.  No, they are not operating in the way they should.

This is important because if the superdelegates work the way they should Sanders would have a good case to get them to support him for the Democratic nomination were he to win California.  If he wins the largest state that matters, and there are reasons he could.  California allows independents to vote in primaries, and it is in these states were Sanders does well.  There are also indications that there has been a significant number of new registrations in California, again potentially favoring Sanders.  Finally, with the GOP nomination wrapped up, independents who might have voted for Trump might vote for Sanders.  The simple point is do not discount a Sanders victory, especially in light of how Clinton’s poll numbers and actually votes are often different, with Michigan, Oregon, and Indiana  as good examples.

Since Super Tuesday Sanders has won more delegates that Clinton.  He has won more states.  He is doing better in the polls against Trump than Clinton.  (Yes, Clinton people argue that Sanders has not been fully vetted by the media and that is why he is doing well but as FAIR (Fairness and Accuracy in Reporting pointed out, CNN, the NY Times, and the Washington Post among other major media have been largely negative against Sanders and attacked him as a socialist, thereby questioning the idea that he has not been vetted).  All of these are good reasons he should be able to convince superdelegates to support him, if the superdelegates worked the way they are supposed to.  Remember back in 2008 Clinton tried this strategy against Obama, contending she was a stronger candidate.  She eventually gave up but the point is that it is perfectly legitimate for Sanders to fight on and to make a case that he is a better candidate.

But Clinton also faces other problems that could feed into a Sanders’ argument for his nomination.  There are issues regarding whether Clinton can win over young voters and independents, both critical  to her campaign.  But this week the Office of the Inspector General for the Department of State issued its report–Office of the Secretary: Evaluation of Email Records Management and Cybersecurity Requirements–regarding Clinton’s handling of her e-mails. The report centrally and critically disputes Clinton’s claims.  Specifically the report notes that while previous SOS had used private emails, by the time Clinton tool office the Federal Records Act, the Foreign Affairs Handbook, the Foreign Affairs Manual, and other federal laws and regulations made it clear that she was not supposed to do so and that she had no permission to setup a private server at her NY home.  The report documents attempts to hack her server, missing e-mails, and a host of other problems.  Two quotes from report are worth noting:

As previously discussed, however, sending emails from a personal account to other employees at their Department accounts is not an appropriate method of preserving any such emails that would constitute a Federal record. Therefore, Secretary Clinton should have preserved any Federal records she created and received on her personal account by printing and filing those records with the related files in the Office of the Secretary.98 At a minimum, Secretary Clinton should have surrendered all emails dealing with Department business before leaving government service and, because she did not do so, she did not comply with the Department’s policies that were implemented in accordance with the Federal Records Act.  (23)

Secretary Clinton used mobile devices to conduct official business using the personal email account on her private server extensively, as illustrated by the 55,000 pages of material making up the approximately 30,000 emails she provided to the Department in December 2014. Throughout Secretary Clinton’s tenure, the FAM stated that normal day-to-day operations  should be conducted on an authorized AIS,147 yet OIG found no evidence that the Secretary requested or obtained guidance or approval (36-37)

The Report goes a long way in describing how Clinton broke the law although it does not use those words.  But the real problem here is how the Report means her e-mail controversy will not go away, and it leads to continuing veracity and credibility issues for Clinton.

Overall, Clinton faces many problems as her candidacy continues to evolve and it will be interesting  to see what happens in the next few weeks.


You Could See it Coming

No surprise that the Minnesota State Legislature adjourned without getting its work done. Back in January I argued that the 2016 session would be trapped by the politics of the 2016 elections and that it would not be a surprise if it deadlocked.  Well it did.

Three reasons for the gridlock.  The first is the partisan divide between the two parties over a range of issues that really makes it hard for Democrats and Republicans to work together.  The politics of Washington have come to St Paul.  Second, there is a leadership crisis–not just with Dayton but with  Baak in the Senate and Daudt in the House.  The three seem unable to lead their parties and the three also just do not seem like they get along.

Third, there are continuing structural problems for the deadlock.  The problems stem from the way  the budgets are made, from the timing of sessions and the fiscal forecast, and simply from issues of political incentives discouraging cooperation and working in a timely fashion to do things that need to be done.

So will there be a special session?  I am not sure there will be.  There may be good reasons, especially for Dayton, not to call a special session and use the gridlock as a political issues this November.  Right now the political incentives favor not reaching agreement on issues and therefore  not having a special session.  For now, the DFL, or at least Dayton, is in a better position not to call  a special session, but we shall see.