OA13: Hillary Clinton’s Damned Emails!

In this episode, we delve — at long last, and just in time for the first Presidential debate — into the question of Democratic Presidential candidate Hillary Clinton’s use of a private email server during her tenure as Secretary of State.

In particular, we answer the question:  “did Hillary Clinton receive preferential treatment” when the government declined to indict her on the facts determined by the FBI?

Our answer may surprise you!

In our opening segment, we tackle a follow-up question from Eric Brewer regarding legal fees, and get more practical tips from Andrew.  And in our closing segment, fan favorite “Closed Argument” returns with a novel (but wrong) argument about the Third Amendment.

Show Notes & Links

  1. You can click here to read Andrew’s companion blog post setting forth more details on the cases (and supporting links).
  2. Here’s the Ars Technica article on the 3rd Amendment and surveillance.

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13 thoughts on “OA13: Hillary Clinton’s Damned Emails!”

  1. Pingback: “Lock Her Up”
  2. Very well explained for the lay-person, and the case law on this is fascinating and illuminating. I feel much better about my support for HRC now as a former Bernie person.

      1. Or we need to report FBI Director Comey’s findings, which were that “we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information.” Listen to the show!

      2. What’s the “end game” to purposefully releasing the emails that were marked classified? Don’t you find it interesting that that ones that were marked classified were all marked in the wrong place? That not a single email marked classified where it should have been were sent in this manner? It’s almost like someone skimmed the emails, saw it was something someone would be interested in them, looked to see if they were marked classified, saw they weren’t then forwarded them the interested party. Or it’s like the underwear trolls Step 1. steal underwear Step 2……. Step 3 profit

  3. I have two questions I don’t believe were addressed:
    1. How do we reconcile the “extreme carelessness” conclusion with the example of HRC explicitly requesting the removal of confidential markings (“turn into nonpaper w no identifying heading and send nonsecure”)?
    2. Is it worth discussing the recently-released emails that suggest the potential of a cover-up effort between the STATE and FBI (“in exchange for marking the email unclassified, STATE would reciprocate by allowing the FBI to place more Agents in countries where they are presently forbidden”)?

  4. Great, fascinating podcast. You’ve got a new listener.

    RANDOM COMMENT: It’s interesting that 793 doesn’t ever use words like “classified,” “secret,” “privileged,” etc. The phrase “relating to the national defense” is vague enough that it seems like it could refer to even the most innocuous document/writing/etc., even a copy of a public speech or the text of a media report.

    BUT: I’m unsure of your Gorin analysis here (and this one here http://warontherocks.com/2016/07/why-intent-not-gross-negligence-is-the-standard-in-clinton-case/), though, because Gorin is about language in the first couple of sections of 793, not (e) or (f).

    When you emphasize this passage from Gorin — “The obvious delimiting words in the statute are those requiring ‘intent or reason to believe that the information to be obtained is to be used to the injury of the United States’ … ” — that’s quoting the first parts of 793, not the latter parts. (They also don’t pertain to the “definition” of the term “national defense”, as you assert in your accompanying blog post … it remains undefined. Only the “overbreadth”/vagueness argument, as alluded to in Truong Dinh Hung, touches on such a definition.)

    (e) and (f) are both different than (a), (b) and (c) because, in part, they don’t actually require the purpose/intent components.

    FURTHERMORE: It does seem like you (and Comey) are going a bit out of your way to say “there are no prosecutions of this kind on record; therefore, it’s unlikely a prosecution would be mounted”. I would just note that, while certainly true, that point has nothing at all to do with the the law itself, only prosecutorial discretion.

    And I find it really weird that the FBI’s staff lawyers would be engaging in the type of meta-analysis like you describe — i.e. to not prosecute under a certain theory of 793 because they would be wary of the statute getting invalidated on appeal. Doesn’t that seem a bit outside of the FBI’s remit as a law enforcement agency? That’s really more of a DOJ question, isn’t it? Do you think this was properly in the FBI’s sphere, or should Comey’s actions have been much more along the lines of “here’s what our investigation found she did; based on that, here are the laws she broke”?

    AND: I didn’t think your Sen. McCarran aside was much on point. It speaks to (f)(2) but not (f)(1), it seems to me (i.e. notification to a superior).

    Don’t mean to be critical though. This was great to listen to.

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