This is an important distinction in the email investigation

[PJMcK]

I've been reading many of the threads about Attorney General Lynch's decision to recuse herself from deciding whether to impanel a grand jury when the FBI concludes its investigation. Too many posters have said that the FBI will decide whether or not to prosecute.

THIS IS WRONG.

The FBI is not a prosecutorial organization, they are an investigative one. It's in their name.

The Department of Justice prosecutors will review the results of the FBI's investigation, including the FBI's recommendations, and then the senior prosecutors, who work under the Attorney General, will determine whether to seek charges from a grand jury.

Normally, those senior prosecutors would make a (strong?) recommendation to the AG regarding the case. What Attorney General Lynch said today was that she would not involve herself in that decision making process and would trust her senior prosecutor's judgment and accept their decisions. She made clear that she was doing this to remove any concern that any decisions for her offices might have been influenced by her meeting with former President Clinton.

It's an extremely important distinction: the FBI investigates and the prosecutors use their judgment and discretion whether there was wrong doing and whether to bring charges.

Sorry, but it's important to understand the process.

[floriduck]

1. She's not recusing herself. That premise is completely wrong.

[PJMcK]

2. Please explain

The point of my post was not specifically what you've objected to, floriduck. Please clarify your point.

Meanwhile, here's a quote from the Huffington Post article:

"Attorney General Loretta Lynch will accept whatever decision career prosecutors make about whether to bring charges in connection with Hillary Clinton’s use of a private email server, a Justice Department official said Friday."

Perhaps I've misunderstood the legal use of the word "recuse," but it seems awfully clear what the process will be.

Regardless, my point was that the FBI doesn't determine whether to seek charges and prosecute crimes. I hope that my point is clear.

[floriduck]

5. To recuse oneself, you remove yourself completely and allow someone else to participate in your

absence. Loretta Lynch is still participating, even if just to accept the findings and recommendations.

[840high]

7. Absolutely correct.

[PJMcK]

12. Please see my response to floriduck (post #8) (n/t)

[PJMcK]

8. Thanks for your response but it leads to some questions

Isn't she still the Attorney General? What more would you have her do? Is there a more transparent or effective action that you think she should take? Do you think she should resign her office?

But back to my original point: I was trying to state that the FBI and the prosecutors have vastly different responsibilities. Too many posters were stating that the decision to seek charges would be the FBI's when it isn't.

Law & Order makes it clear: "In the Criminal Justice System, the people are represented by two separate, yet equally important groups. The police who investigate crime and the District Attorneys who prosecute the offenders."

For Federal crimes, substitute "FBI" for "police" and "DOJ prosecutors" for "District Attorneys."

That is all that I'm trying to say.

[floriduck]

9. I simply wanted to make the correct distinction regarding recusals.

I'm not stating anything else and not saying she is wrong. So please don't read anything into my post. I just want to make it clear she has not recused herself, nothing more.

Sorry if I said anything to imply otherwise.

[PJMcK]

10. We have no argument

And I enjoyed our repartee, floriduck.

Have a happy 4th of July.

[floriduck]

11. Thanks you do the same.

[passiveporcupine]

24. And I enjoyed this reparte as well

thank you to both of you for clarification. It helped me and it made me happy to see a conversation that didn't turn into a fight, like so many things are wont to do here lately.

Happy forth to everyone.

Lots of sparklies!

[PJMcK]

35. Thank you, passiveporcupine

Hope your weekend is enjoyable!

[shenmue]

3. A lot of nothing

You keep on trying, but there's still nothing there.

[PJMcK]

4. Perhaps you've misunderstood me

I agree with you, shenmue. This case is going to dissolve into the nothingness that it truly is. It's like the Benghazi investigations in that it's a lot of noise about nothing.

[leveymg]

13. If you think there is nothing there you simply haven't been paying attention.

We will see, soon.

[KMOD]

15. What exactly do you believe is going to happen?

[George II]

17. How so? You have "inside information" about this investigation?

[floriduck]

6. Have a nice day.

[KMOD]

14. I appreciate this post.

The misinformation surrounding this entire non-scandal is outrageous.

[George II]

16. YES, the FBI investigates (ergo the "I" in FBI), the DOJ and prosecutors decided how to use...

...the results of any investigation.

It boggles my mind when I see so many here and in the media say that the FBI will "indict".

[PJMcK]

18. The lack of Journalism is appalling

When the "Deans" of broadcast journalism, people like Wolf Blitzer, Chuck Todd or Andrea Mitchell (to name but a few), say things that are factually wrong, grammatically incorrect or just plain stupid, I'm no longer amazed that Sarah Palin earned a Bachelor's degree in communications.

[George II]

19. I actually heard "journalist" Chuck Todd say "eksetera" (phonetically) last week. EK-F-ING-SETERA!!

[PJMcK]

21. The really depressing thing is that their bosses don't know the difference

Or they don't care.

Broadcast television is not about public service, thanks to President Reagan's administration's destruction of the Fairness Doctrine.

The broadcast monopolies are only interested in selling advertising time. They have zero interest in providing a public service which is what the FCC was supposed to ensure. This was made clear when Les Moonves, the CEO of CBS, said earlier this year, "Donald Trump may be bad for America, but he's great for our bottom line." (Please pardon my paraphrasing but I believe I'm fairly accurate.)

By the way, George II, Chuck Todd is an idiot. But you already knew that.

Happy 4th of July!

[George II]

23. Remember how David Letterman rued the day that baby bush left the White House?

Sad, truly sad.

Happy Independence Day to you, too - have a good one.

[KMOD]

20. They've become lazy.

When they're using twitter as a source of breaking news, you know it's gone downhill.

[PJMcK]

22. It's worse than lazy

They're incompetent.

With great respect to the younger generations behind me- please remember that I was young once, too- the use of social media diminishes the effectiveness of communication. So when contemporary journalists use social media as a resource for their reporting, they are inept.

[B2G]

25. It doesn't matter.

If the FBI recommendations are not acted upon by the DOJ to the letter, all political hell will break loose.

And that is because of Bill Clinton's little impromptu gab session.

[PJMcK]

26. Is that how the investigative/prosecutorial process works?

I've always thought that the investigation gathers evidence and the prosecutors decide whether there are prosecutable crimes.

Our country is already swamped in political hell, B2G. But I know from your writings that you already know that. (wink)

[B2G]

27. It is swamped indeed.

But if I'm anything, I'm a realist. And reality tells me that the DOJ has no political capital to use after the events that have transpired this week and the attention they have garnered. If the FBI recommends no indictments, Bill is off the hook. If they do, I just can't see the DOJ pulling a Holder at this point. Prior to all this, I think that option was legitimately on the table.

That's my honest assessment. We'll all know soon enough.

[PJMcK]

28. You've expressed that well

Thanks for an interesting exchange, B2G.

Happy 4th.

[B2G]

29. You as well

[pnwmom]

30. No one's going to recommend she be prosecuted because there are no precedents

for prosecuting people who didn't deliberately expose classified information.

She didn't. Case closed.

P.S. "Retroactively classified" info doesn't count.

[Crepuscular]

31. ...

Your statement that there is no precedent for prosecuting people who didn't deliberately expose classified information is untrue.

https://www.fbi.gov/sacramento/press-releases/2015/folsom-naval-reservist-is-sentenced-after-pleading-guilty-to-unauthorized-removal-and-retention-of-classified-materials

John Deutch might have also faced indictment, had he not been pardoned by President Clinton, despite not being charged.

The whole "retroactively classified" meme is bogus, as sensitive information can be deemed classified and is subject to restrictions, regardless of the label applied to it.

[pnwmom]

32. Those cases are no precedent for Hillary.

Last edited Sat Jul 2, 2016, 12:31 PM - Edit history (7)

According to court documents, Nishimura was a Naval reservist deployed in Afghanistan in 2007 and 2008. In his role as a Regional Engineer for the U.S. military in Afghanistan, Nishimura had access to classified briefings and digital records that could only be retained and viewed on authorized government computers. Nishimura, however, caused the materials to be downloaded and stored on his personal, unclassified electronic devices and storage media. He carried such classified materials on his unauthorized media when he traveled off-base in Afghanistan and, ultimately, carried those materials back to the United States at the end of his deployment. In the United States, Nishimura continued to maintain the information on unclassified systems in unauthorized locations, and copied the materials onto at least one additional unauthorized and unclassified system.

Hillary used her personal email just as Colin Powell had before her and with the full knowledge of the State Department. And she didn't download classified materials and carry them off to Afghanistan!

And, according to the statutes, sensitive information must be officially classified (see the second article below). There is a process for it and also a person who is in charge of that: the person who is the head of each department. Hillary was the ultimate authority on what state department document needed to be classified or de-classified.

Past cases suggest Hillary won’t be indicted

A POLITICO review shows marked differences between her case and those that led to charges.

http://www.politico.com/story/2016/04/hillary-clinton-prosecution-past-cases-221744

The relatively few cases that drew prosecution almost always involved a deliberate intent to violate classification rules as well as some add-on element: An FBI agent who took home highly sensitive agency records while having an affair with a Chinese agent; a Boeing engineer who brought home 2000 classified documents and whose travel to Israel raised suspicions; a National Security Agency official who removed boxes of classified documents and also lied on a job application form.

Clinton herself, gearing up for her FBI testimony, said last week that a prosecution is “not gonna happen.” And former prosecutors, investigators and defense attorneys generally agree that prosecution for classified information breaches is the exception rather than the rule, with criminal charges being reserved for cases the government views as the most egregious or flagrant.
“They always involve some ‘plus’ factor. Sometimes that ‘plus’ factor may reach its way into the public record, but more likely it won’t,” one former federal prosecutor said.

A former senior FBI official told POLITICO that when it comes to mishandling of classified information the Justice Department has traditionally turned down prosecution of all but the most clear-cut cases.

Why Hillary Won't Be Indicted and Shouldn't Be: An Objective Legal Analysis

There is no reason to think that Clinton committed any crimes with respect to the use of her email server.

Richard O. Lempert, University of Michigan School of Law

http://prospect.org/article/why-hillary-wont-be-indicted-and-shouldnt-be-objective-legal-analysis

The statute also provides a definition of what constitutes classified information within the meaning of the subsection described above: “[C]lassified information, means information which, at the time of a violation of this section, is specifically designated by a United States Government Agency for … restricted dissemination.”

Again, the most important words are the ones I have italicized. First, they indicate that the material must have been classified at the time of disclosure. Post hoc classification, which seems to characterize most of the classified material found on Clinton’s server, cannot support an indictment under this section. Second, information no matter how obviously sensitive does not classify itself; it must be officially and specifically designated as such.

[Crepuscular]

33. ...

Sorry, but you are wrong. The Nishimura case specifically had to do with the inadvertent possession of classified material with no intent to leak that material. You claimed no one had been prosecuted for such, clearly you were mistaken.

The location of the classified material, whether it's in Afghanistan or in Hillary's bathroom, matters not a bit, it's the handling of classified material that is the important factor and clearly Hillary possessed classified material on a private, non-government server, with inadequate security measures. When or whether that material was labeled classified is immaterial, it's the nature of the material that determines it's security status, not the label placed upon it. As Secretary of State, Hillary was fully aware of how classified data should be handled.

Colin Powell never had a private email server set up in his home to bypass the established government email system, equating the two is totally disingenuous. It' snot Hillary's personal email that is in question, it's her official government email, a substantial quantity of which was classified, that is in question.

[pnwmom]

34. Nishimura intentionally downloaded classified materials. It was not inadvertent.

According to court documents, Nishimura was a Naval reservist deployed in Afghanistan in 2007 and 2008. In his role as a Regional Engineer for the U.S. military in Afghanistan, Nishimura had access to classified briefings and digital records that could only be retained and viewed on authorized government computers. Nishimura, however, caused the materials to be downloaded and stored on his personal, unclassified electronic devices and storage media. .

And the statute only applies to materials that are labeled classified -- not to items retroactively deemed classified for the purpose of FOIA.

http://prospect.org/article/why-hillary-wont-be-indicted-and-shouldnt-be-objective-legal-analysis

The statute also provides a definition of what constitutes classified information within the meaning of the subsection described above: “lassified information, means information which, at the time of a violation of this section, is specifically designated by a United States Government Agency for … restricted dissemination.”

Again, the most important words are the ones I have italicized. First, they indicate that the material must have been classified at the time of disclosure. Post hoc classification, which seems to characterize most of the classified material found on Clinton’s server, cannot support an indictment under this section. Second, information no matter how obviously sensitive does not classify itself; it must be officially and specifically designated as such.

Obviously, you couldn't be troubled to read analyses that conflict with the right-winger sources that say otherwise.

Colin Powell used a private AOL account for all his government email. That private AOL account had exactly the same legal standing as Hillary's private server-based account. Neither one was equivalent to the .gov accounts, which no Secretary of State used prior to Kerry.

Your concern is noted. Sorry to disappoint!