As Judge Napolitano explains, this crime does not require intent and can result from negligence or simply from a lack of awareness that a secret is being revealed, as in the case that Judge Napolitano provides of the US Navy sailor who was prosecuted for espionage because a “selfie” he sent to his girlfriend revealed a sonar screen in the background. An even more egregious case is that of the US Marine who was prosecuted for using email to alert superiors to the presence of an al-Quada operative inside a US military compound. The email is considered unsecure and thus the Marine was prosecuted for revealing a secret known only to himself.
In view of these unjustified prosecutions of US military personnel, the FBI has no alternative to recommending that Hillary be indicted.
Whether Hillary will be indicted ostensibly depends on the Justice (sic) Department and the White House. In fact, it is unlikely that either Wall Street or the military/security complex wants Hillary indicted as both have invested too many millions of dollars in her presidential candidacy, and both interest groups are more powerful than the Justice (sic) Department and the White House.
I do not think that Hillary was a good US senator and Secretary of State, and I do not think she is qualified to be President of the US. Nevertheless, I do wonder how important are the secrets about which she is accused of negligance. Even the one possibly serious disclosure that Judge Napolitano provides of Hillary forwarding a photo from a satellite of a North Korean nuclear facility doesn’t strike me as important. The North Koreans, along with the entirety of the world, know that the US has satellites and communication intercepts operating against them 24/7.
Many things with secret classifications are not secrets. In my career I had many security clearances. As staff associate, Defense Appropriations Subcommittee, House Committee on Appropriations, I had top secret clearances because secret weapon systems were at stake. It was a joke among the staff that many of the “secrets” were available in the public defense literature.
As Assistant Secretary of the Treasury I received the CIA’s daily briefing of the President. It was boring reading. I came to the conclusion that the CIA was not going to report anything of consequence that possibly could turn out to be wrong.
Later, as a member of a secret Presidential committee to investigate the CIA’s view of the Soviet Union’s ability to withstand an arms race, I had very high clearances as the committee had subpoena power over the CIA. If the Kremlin had had access to the top secret documents, all the Kremlin would have learned is that the CIA had a much higher opinion of the capability of the Soviet economy than did the Kremlin.
Distinguished law professors have concluded that the US government classifies documents primarily in order to hide its own mistakes and crimes. We see this over and over. The US government can escape accountability for the most incredible mistakes and the worse crimes against the US Constitution and humanity simply by saying “national security.”
In my opinion, it is the second FBI investigation of Hillary that should be pursued. This is a much more serious possible offense. There is suspicion that Bill and Hillary privatized their public offices and turned them into a money faucet for themselves.
This is a serious problem everywhere in the West. A few years out of office and Bill and Hillary can drop $3 million on their daughter’s wedding. A year or so out of office and Tony Blair was worth $50 million. As an Assistant Secretary of Defense once told me, “European governments report to us. We pay them, and we own them.”
In Anglo-American legal history, one foundation of liberty is the requirement that crime requires intent. I do not believe that Hillary intentionally revealed secrets. If she was negligent, that should be made public and should be sufficient to disqualify her from occupying the White House. What is clear to me is that the legal principle that crime requires intent is far more important than “getting Hillary.” This foundational principle of liberty should be protected even if it means letting Hillary go.
And certainly Obama should pardon the sailor and marine.
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Two Smoking Guns: FBI on Hillary’s Case
By Andrew P. Napolitano: The federal criminal investigation of former Secretary of State Hillary Clinton’s failure to secure state secrets was ratcheted up earlier this week, and at the same time, the existence of a parallel criminal investigation of another aspect of her behavior was made known. This is the second publicly revealed expansion of the FBI’s investigations in two months.
I have argued for two months that Clinton’s legal woes are either grave or worse than grave. That argument has been based on the hard, now public evidence of her failure to safeguard national security secrets and the known manner in which the Department of Justice addresses these failures.
The failure to safeguard state secrets is an area of the law in which the federal government has been aggressive to the point of being merciless. State secrets are the product of members of the intelligence community’s risking their lives to obtain information.
Before she was entrusted with any state secrets – indeed, on her first full day as secretary of state – Clinton received instruction from FBI agents on how to safeguard them; and she signed an oath swearing to comply with the laws commanding the safekeeping of these secrets. She was warned that the failure to safeguard secrets – known as espionage – would most likely result in aggressive prosecution.
In the cases of others, those threats have been carried out. The Obama Department of Justice prosecuted a young sailor for espionage for sending a selfie to his girlfriend, because in the background of the photo was a view of a sonar screen on a submarine. It prosecuted a heroic Marine for espionage for warning his superiors of the presence of an al-Qaida operative in police garb inside an American encampment in Afghanistan, because he used a Gmail account to send the warning.
It also prosecuted Gen. David Petraeus for espionage for keeping secret and top-secret documents in an unlocked drawer in his desk inside his guarded home. It alleged that he shared those secrets with a friend who also had a security clearance, but it dropped those charges.
The obligation of those to whom state secrets have been entrusted to safeguard them is a rare area in which federal criminal prosecutions can be based on the defendant’s negligence. Stated differently, to prosecute Clinton for espionage, the government need not prove that she intended to expose the secrets.
The evidence of Clinton’s negligence is overwhelming. The FBI now has more than 1,300 protected emails that she received on her insecure server and sent to others – some to their insecure servers. These emails contained confidential, secret or top-secret information, the negligent exposure of which is a criminal act.
One of the top-secret emails she received and forwarded contained a photo taken from an American satellite of the North Korean nuclear facility that detonated a device just last week. Because Clinton failed to safeguard that email, she exposed to hackers and thus to the North Koreans the time, place and manner of American surveillance of them. This type of data is in the highest category of protected secrets.
Last weekend, the State Department released two smoking guns – each an email from Clinton to a State Department subordinate. One instructed a subordinate who was having difficulty getting a document to Clinton that she had not seen by using a secure State Department fax machine to use an insecure fax machine. The other instructed another subordinate to remove the "confidential" or "secret" designation from a document Clinton had not seen before sending it to her. These two emails show a pattern of behavior utterly heedless of the profound responsibilities of the secretary of state, repugnant to her sworn agreement to safeguard state secrets, and criminal at their essence.
Also this past weekend, my Fox News colleagues Katherine Herridge and Pamela Browne learned from government sources that the FBI is investigating whether Clinton made any decisions as secretary of state to benefit her family foundation or her husband’s speaking engagements. If so, this would be profound public corruption.
This investigation was probably provoked by several teams of independent researchers – some of whom are financial experts and have published their work – who have been investigating the Clinton Foundation for a few years. They have amassed a treasure-trove of documents demonstrating fraud and irregularities in fundraising and expenditures, and they have shown a pattern of favorable State Department treatment of foreign entities coinciding with donations by those entities to the Clinton Foundation and their engaging former President Bill Clinton to give speeches.
There are now more than 100 FBI agents investigating Hillary Clinton. Her denial that she is at the core of their work is political claptrap with no connection to reality. It is inconceivable that the FBI would send such vast resources in the present dangerous era on a wild-goose chase.
It is the consensus of many of us who monitor government behavior that the FBI will recommend indictment. That recommendation will go to Attorney General Loretta Lynch, who, given Clinton’s former status in the government and current status in the Democratic Party, will no doubt consult the White House.
If a federal grand jury were to indict Clinton for espionage or corruption, that would be fatal to her political career.
If the FBI recommends indictment and the attorney general declines to do so, expect Saturday Night Massacre-like leaks of draft indictments, whistleblower revelations and litigation, and FBI resignations, led by the fiercely independent and intellectually honest FBI Director James Comey himself.
That would be fatal to Clinton’s political career, as well.
Andrew Peter Napolitano is a syndicated columnist whose work appears in numerous publications, such as Fox News, The Washington Times, and Reason.
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