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Jonathan Turley

‘This Is A Game’: The Clintons Continue To Mock Email Investigation

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I have previously written about the peculiar position of being counsel for Hillary Clinton when your client, her advisers, and allies mock the massive federal investigation that continues into her reckless use of an unsecured personal server for her official communications as Secretary of State. As counsel you usually strive to show investigators that your client understands the gravity of such violations and accepts responsibility for serious mistakes of judgment or action on her part. The Clintons however have been yielding to a political rather than a legal narrative in mocking the investigation — something that truly must mystify those FBI agents working the case. In the latest such example, former president Bill Clinton used a speech in Kokomo, Indiana to dismiss the FBI investigation is nothing more than “a game.”
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Clinton Declares That She Will Never Be Indicted And Insists That Her 'Predecessors Did The Same Thing' On Emails

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I watched last night’s debate with great interest. I thought both Sanders and Clinton had some very strong moments. However, I tend to watch these debates for the legal issues and I was most struck by former Secretary of State Hillary Clinton’s discussion of the email scandal. First, she declared that she will never be indicted — a statement that may irritate federal investigations looking into possible crimes. She certainly has defenses and the odds may indeed favor her. However, defense attorneys usually discourage such statements from potential targets which can enrage prosecutors as presumptuous or suggesting some level of immunity. Second, she insisted that her “predecessors did the same thing” that she did on emails — a statement that is demonstrably untrue but again was left unchallenged by the journalists.

The Indictment Question

We previously discussed the controversy of the White House stating that the investigation was not moving toward any criminal charges — a statement would indicate either a sweeping assumption or an improper degree of consultation between the White House and the Justice Department on an ongoing investigation. As discussed below, having a personal server is not a crime. Mishandling classified material (or related classification violations) or evading federal laws can be. It would be premature to dismiss or predict an indictment. While the odds may be in her favor, it would be obviously absurd to say that no indictment is possible. It depends on the evidence, which remains largely unknown.

There is of course no way for Clinton to know about what will happen with the indictment. Given that she is running on the theme of “no one too big to jail,” the dismissing of the notion of an indictment is a tad incongruous. She certainly has support for saying that recent cases have resulted in relatively light punishment.
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Federal Magistrate Orders Apple To Help FBI Hack Its Own Phones . . . Apple Refuses

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Apple has decided to fight an unprecedented and highly controversial order by US Magistrate Judge Sheri Pym that the company has to assist the government in breaking into one of its encrypted phones. Apple says that it does not have the technology and does not want to be part of such an effort to create a privacy stripping tool for the FBI. Pym seems to believe that she can order companies to become unwilling participants in surveillance research and development. I fail to see her legal basis for such an extraordinary order against a private company.

CEO Tim Cook said the order by US Magistrate Judge Sheri Pym “has implications far beyond the legal case at hand”. He said that the company cooperated with the FBI “But now the US government has asked us for something we simply do not have, and something we consider too dangerous to create. They have asked us to build a backdoor to the iPhone.”

Pym has gone far beyond what I consider the scope of her authority. Indeed, her actions appear almost legislative in nature. Congress has not ordered such back door access to be supplied by companies and such a move would raise difficult privacy questions. It would also conflict with some other countries that have balked at the effort of the Obama Administration to strip phones of privacy encryption protections.
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State Department: 22 Emails Will Not Be Released As “Top Secret”

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The email scandal deepened for former Secretary of State Hillary Clinton on Friday with the announcement that the State Department will not release 22 emails because they contain “top secret” information, the highest level of government classification. The latest batch of emails contains seven email chain with top secret information.  While Clinton once insisted that she never sent or received classified information, it is now official that many of the emails did indeed contain classified information. Clinton later argued that she did not send or receive information “marked” as classified. 

While many of us in the field noted that such markings are not the only issue for those who handle classified information, the classification level given so many emails will likely increase the criticism of Clinton’s decision to use exclusively her own, unsecure email system over the protected system in place at State. She has insisted that this was done for “convenience” and recently rejected the suggestion that the use of the system showed “an error in judgment.” In the very least, the decision to use a private email system was a horrendously bad decision for a Secretary of State when a secure system was available. It is hardly a compelling argument to advance that you took this reckless step for “convenience.”

Additional emails between President Obama and Clinton were withheld to protect presidential communications, though the use of a private server made such communications vulnerable to foreign interception.  Notably, the State Department said today that it has not been established that none of the email information was marked classified.
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State Department and Intelligence Agencies Ask For Criminal Investigation in the Clinton Email Scandal

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In a major development on the Clinton email scandal, 
the New York Times is reporting that the inspectors general for the State Department and the intelligence community have asked the Justice Department to open a criminal investigation into whether Hillary Clinton mishandled classified information by using a personal email account while secretary of state. 

We have previously discussed this story and the insistence of Clinton that she did nothing wrong in maintaining a private email system and that none of the emails were classified. I disagreed with both premises as well as expressed great skepticism over Clinton’s insistence that she was really not trying to control her emails and insulate them from review but rather simply did not want to carry around two phones. According to the New York Times, investigators believe that Clinton’s email archive contained “hundreds of potentially classified emails.”

That is if anything a conservative estimate. As I discussed earlier, virtually anything coming out of the office of the Secretary of State would be considered classified as a matter of course. I have had a TS/SCI clearance since Reagan due to my national security work and have lived under the restrictions imposed on email and other systems. The defense is that this material was not technically classified at the time that it was sent. Thus it was not “classified” information. The problem is that it was not reviewed and classified because it was kept out of the State Department system. Moreover, most high-level communications are treated as classified and only individually marked as classified when there is a request for disclosure. You do not generate material as the Secretary of State and assume that it is classified.
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Pennsylvania Legislature Moves To Pass Injunctive Law In Wake Of Abu-Jamal Commencement Speech

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There has been some predicable and understandable objections to the selection of Mumia Abu-Jamal, the convicted killer of Philadelphia Police Officer Daniel Faulkner in 1981, as this year’s commencement speaker for Goddard College in Vermont. Faulkner’s widow and others have decried his recorded appearance from Mahanoy state prison in Frackville, Pennsylvania. However, as is all too often the case, politicians have responded to such good-faith objections with a highly questionable, poorly crafted law that allows victims to seek injunctions in future such cases.

Goddard College recognized Abu-Jamal as “an award winning journalist who chronicles the human condition.”

He addressed about 20 students receiving bachelor degrees from Goddard College in Plainfield, where he himself earned a degree from the college in 1996. He told them to
“Think about the myriad of problems that beset this land and strive to make it better.” While he did not discuss his crime, he such “Goddard reawakened in me my love of learning,. In my mind, I left death row.”

Abu-Jamal was a member of the Black Panther Party. He later became a radio journalist and president of the Philadelphia Association of Black Journalists. On December 9, 1981, Officer Faulkner was shot dead while conducting a traffic stop on a car driven by Abu-Jamal’s brother, William Cook. Faulkner shot Abu-Jamal in the encounter. The case became a national focus not only because of the death of a police officer but the later errors claimed in association with Abu-Jamal, who initially represented himself with disastrous results.
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Obama: I Do Not Need Congressional Approval To Go To War With ISIS

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President Obama is again asserting his right to act unilaterally and without congressional approval in going to war. In what has become a mantra for this Administration, Obama reportedly told members of Congress that he does not need congressional approval to unleash a comprehensive military campaign against the Islamic State. The President informed a few members at a dinner — a striking image of how low congressional authority has become in our tripartite system of government.

We have been discussing the growing concerns over President Barack Obama’s series of unilateral actions in ordering agencies not to enforce law, effectively rewriting laws, and moving hundreds of millions of dollars from appropriated purposes to areas of his choosing. One of the greatest concerns has been his unchecked authority asserted in the national security area. I previously represented members of Congress in challenging Obama’s intervention in the Libyan civil war without a declaration from Congress. 

In the case, President Obama insisted that he alone determines what is a war and therefore when he needs a declaration. Since the court would not recognize standing to challenge the war, it left Obama free to engage in war operations in any country of his choosing. As with his approach in Libya, Syria and other combat operations (and most recently on whether he will resume the war in Iraq), Obama is again asserting his extreme view of executive power.
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'We Tortured Some Folks' — Obama Admits United States Committed Acts Violating Federal and International Law

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Following the admission that the CIA hacked Senate computers and lied to Congress, President Obama today affirmed that it did indeed torture people. This admission (while belated) is an important recognition by the United States of what is obvious from a legal standpoint. However, that also means that CIA officials violated both federal and international law. The question is why Obama began his first term by promising CIA employees that they would not be tried for what he now describes as “tortur[ing] some folks.”

Despite the prior lying to Congress, Obama insisted that he had “full confidence in John Brennan.” As noted before, the Obama Administration is clearly unwilling again to discipline, let alone charged, any CIA personnel for hacking into congressional computers.

The President then turned to the Senate report on our torture program and affirmed his earlier 2009 statement that this was torture — plain and simple...
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