I'd Like to Hear TexasTushHog's Take On This....

Hey TTH,

Since you're an attorney, you post intelligently, and you say you rub shoulders with the Clintons, I would be interested in hearing your reaction to the following column that appeared in the WSJ last week. Not playing gotcha, just wondering how the whole thing can be defended or justified.


The FBI Treated Clinton With Kid Gloves

Investigators went after Gov. Bob McDonnell with every tool they had. The double standard is obvious.

By Noel J. Francisco and James M. Burnham
Oct. 5, 2016 7:16 p.m. ET

Tim Kaine repeatedly defended Hillary Clinton’s use of a private email server during Tuesday night’s vice-presidential debate. “The FBI did an investigation,” he said at one point, “and they concluded that there was no reasonable prosecutor who would take it further.” But such a statement is credible only if it follows a real criminal investigation—that is, the sort of investigation that the FBI and the Justice Department conduct when they actually care about a case and want convictions.

We know all too well what that kind of investigation looks like, as two of the lawyers who defended a recent target: former Virginia Gov. Bob McDonnell. That story had a happy ending for the governor and his wife. The Supreme Court unanimously ruled in their favor this summer and all charges were dropped in September. But their victory certainly wasn’t due to lack of investigatory zeal on the part of the FBI and Justice Department.

Below are only a few of the heavy-handed tactics federal investigators used to build their case against the McDonnells. See how they compare to how Mrs. Clinton was treated.

Conduct ambush interviews. The first contact between law enforcement and the McDonnells was an ambush interview of the governor’s wife. The agents lied to her about the topic of the meeting, forbade Gov. McDonnell’s staff from attending, and then grilled her on their suspicions about potential public corruption. Statements from that interview later took center stage in the trial of her and her husband.

In Mrs. Clinton’s case, no ambush interviews were conducted, and witnesses were generously accommodated. The FBI and Justice Department even allowed a fact witness and potential target— Cheryl Mills, formerly the State Department’s chief of staff—to simultaneously represent Mrs. Clinton as her counsel.

Immunize only witnesses who can help deliver convictions. One person in Gov. McDonnell’s case got immunity: Jonnie Williams, the prosecution’s star witness. For his testimony, Mr. Williams earned a wealth of blanket immunity—not simply from potential bribery prosecution but also from unrelated crimes he might have committed (including securities and tax fraud). Reluctant witnesses—Gov. McDonnell’s children and friends—were called before a grand jury and forced to testify.

Contrast that with Mrs. Clinton’s case. Much of her staff was immunized in exchange for simply meeting with investigators. None of them appear to have been pressed for information, or given any incentive whatsoever to spill on the boss.

Investigate and charge all potential crimes. Prosecutors in Gov. McDonnell’s case collected more than five million pages of documents and filed charges for every potential crime they could. In addition to the corruption charges, the governor and his wife were accused of lying to banks and obstructing justice. The jury acquitted the McDonnells of the former, and the trial judge ruled there was insufficient evidence of the latter. But the prosecutors pursued these charges vigorously, despite their lack of merit.

For Mrs. Clinton, there appears to have been no investigation into crimes beyond the mishandling of classified information. In particular, the FBI seems to have readily accepted Ms. Mills’s claim that she did not learn about Mrs. Clinton’s private server until after both of them had left the government. This is implausible on its face, since the two were in regular email contact while working at the State Department. It is also contradicted by a witness who administered the server, as well as by Ms. Mills’s own emails. These sorts of inconsistencies were enough to get Mrs. McDonnell, Scooter Libby—former Vice President Dick Cheney’s chief of staff—and others indicted for allegedly covering up crimes. In Mrs. Clinton’s case, they weren’t even investigated.

Construe “corruption” broadly. Investigators of Gov. McDonnell took the most expansive possible reading of the law. They argued to the Supreme Court this spring that it was a felony for the governor to arrange meetings between a benefactor and other government officials, even without trying to sway the ultimate decision.

Yet the FBI appears to have done no investigation into how Secretary Clinton’s conduct while in office was affected by massive donations to the Clinton Foundation or large payments for speeches given by her husband, former President Bill Clinton. Journalists have unearthed extensive evidence of special treatment: The Associated Press reported that during the first half of her tenure, Mrs. Clinton had meetings or phone calls scheduled with 154 private interests; 85 were Clinton Foundation donors, who in total had pledged or given as much as $156 million.

Claim that concealment proves consciousness of guilt. In Gov. McDonnell’s case, there was no evidence—none—that he ever suspected his conduct could be criminal. Prosecutors tried to show criminal intent by arguing that he “hid” gifts by declining to list them on annual disclosure forms. But Gov. McDonnell complied with Virginia’s disclosure requirements in virtually all respects. The law simply did not require much information to be disclosed. Further, many of his family and staff knew about the gifts. Still, prosecutors claimed that failure to tell the public sufficed to prove a guilty mind.

FBI Director James Comey said that in Mrs. Clinton’s case there was no evidence of criminal intent. Yet she set up a private email server in her basement and permanently deleted thousands of the emails it contained. A plausible motive would be shielding her activities from public scrutiny. The Comey standard—that direct evidence of knowing criminality is needed to prosecute—is certainly not the one that his agency and the Justice Department applied to Gov. McDonnell for more than three years.

To be clear, we aren’t endorsing these heavy-handed tactics, many of which are befitting Inspector Javert of “Les Misérables.” But these are the sorts of things investigators do when they are serious about bringing criminal charges. In deciding whether the investigation into Mrs. Clinton was a real one—as opposed to a grand, expensive spectacle of law-enforcement theater—Gov. McDonnell’s treatment is instructive.

Messrs. Francisco and Burnham practice law at Jones Day in Washington, D.C.

Also, this WSJ editorial accompanied the previous op-ed:


Cheryl Mills’s Legal Privileges

The evidence of a politicized Clinton probe keeps building.

Oct. 5, 2016 7:05 p.m. ET

The more we learn about the Justice Department’s investigation of Hillary Clinton’s private email, the worse it looks. The latest revelation is that, along with granting immunity to two Clinton aides, Justice agreed to secret side deals that provided highly unusual protections from potential prosecution.

The side agreements came to light this week in a letter from House Judiciary Chairman Bob Goodlatte to Attorney General Loretta Lynch. Mr. Goodlatte says he learned about the side deals by examining the immunity agreements, which haven’t been released to the public.

We already knew that Justice offered immunity to at least five central figures in the private email probe, including Cheryl Mills and Heather Samuelson, the aides in charge of deciding which of the former Secretary of State’s emails on her private server would be turned over to the State Department. FBI Director James Comey struggled to explain to Congress last week why immunity was necessary to obtain the laptops the two had used for sorting the emails.

Now we learn that Ms. Mills and Ms. Samuelson also obtained guarantees that investigators would not search these laptops after Jan. 31, 2015. More amazing, Justice agreed to destroy both laptops after examining them. Think about that: Before the authorities knew what was on the laptops, they agreed to destroy potential evidence in their investigation. The evidence was also under a congressional subpoena and preservation order.

The “no-look” date beyond Jan. 31, 2015 means the FBI couldn’t see what the two aides said or did after the news of Mrs. Clinton’s private server became public in March 2015. Investigators would be unable to determine if Ms. Mills or Ms. Samuelson had engaged, as Mr. Goodlatte put it in his letter, in “destruction of evidence or obstruction of justice related to Secretary Clinton’s unauthorized use of a private email server.” Why else would time limits be necessary given that the two women already had immunity?

We’re told by prosecutors that this kind of special treatment is all but unheard of. Justice would typically empanel a grand jury, which would issue subpoenas to obtain physical evidence like the laptops. No grant of immunity would have been necessary.

So why no grand jury? Mr. Comey told Congress last week that the FBI was eager to see the laptop evidence and that it is sometimes easier to have informal agreements to obtain it. But surely it’s possible to negotiate with lawyers and conduct a grand jury at the same time. Without the threat of a grand jury the Clinton entourage had all the leverage, and they were able to get away with what amounted to formal get-out-of-jail-free cards.

Our guess is that Justice also knew that word of a grand jury was likely to leak and further damage Mrs. Clinton’s presidential campaign. Better to work sotto voce with the Clinton team until Mr. Comey made his public announcement in July that he was recommending that no charges be brought in the case.

All of this adds to the mounting evidence that the FBI and Justice gave Mrs. Clinton and her entourage special political treatment. No grand jury that the public knows about. Immunity. Special side deals. No hard digging into contradictory testimony. An FBI interview only at the last minute. Public exoneration by the FBI director when that isn’t his job. FBI summaries released on the Friday afternoon before Labor Day.

No wonder millions of Americans think the system is rigged. (See Noel Francisco and James Burnham nearby.)

http://www.wsj.com/articles/cheryl-m...ges-1475708726

I think that you have to start with the statute that HRC is arguably accused of violating, 18 USC. 793. It is a statute that is a very poor fit for electronic information. It was drafted in 1917. It has not been substantively amended since, though there have been amendments to add a small phrase, add outline structure, etc. It also requires that a person act "intentionally" or by "gross negligence." However, the record indicates that the gross negligence provision -- largely unprecedented for a criminal statute -- has never been used.

Clearly, HRC had no intention to share information with a foreign agent, nor to removed [them] from its proper place of custody". One really wonders where the proper place of custody of an e-mail really is? There is not statutory provision prohibiting a private server. Indeed Colin Powell, contrary to some media reports, did indeed use a private server, too. The private server he used was not a personal server, but was a private server owned or operated by his ISP and used by thousands if not tens of thousands of other users. He likely had no idea what security measures the ISP took any more than you or I would know if we used an ISP hosted e-mail account. At least HRC was using a private server that she actually had possession of and had take reasonable steps to secure it through the use of IT professionals.

So I think the main reasons the FBI didn't prosecute was that there was no intent, there was no harm of any kind, and that there was a more than good faith effort by HRC and her staff to take appropriate precautions. Indeed, there is no evidence that her server was hacked. Of course absence of evidence is not evidence of absence. Presumably it could have been hacked had the hackers left no traces. But we know that the secure State Department e-mail system was hacked several times during the same period.

As for the investigative tactics mention in the article, yes, the FBI sometimes uses those. Often times they do not. Generally they don't, at least in my limited experience with criminal investigations. Those are reserved for big time cases. This never had big time written on it. I predicted as soon as I heard the facts that no prosecutor would ever bring charges on these facts. I think the only reason that it received as much attention as it did was Republican Congressional investigators constantly flogging it for partisan political purposes and Comey (a Republican) making an entirely inappropriate statement about the investigation that violated DOJ guidelines (again for partisan political purposes).

Clearly, HRC had no intention to share information with a foreign agent, ...

So I think the main reasons the FBI didn't prosecute was that there was no intent, ...... Presumably it could have been hacked had the hackers left no traces. But we know that the secure State Department e-mail system was hacked several times during the same period.

As for the investigative tactics ..... Those are reserved for big time cases. This never had big time written on it. Originally Posted by TexTushHog

This has "I love the Clintons" written all over it.....

.. except ... for the part where you call the Clintons ...

.. a "little time case."

Please find in the statute where it is required to be found:
1. intent to share with a foreign government
2. the material was obtained by a foreign government.

And when was the mishandling of classified materials "small time"?

As for your "finding" of "no intent" .... My recollection of "Commie's" announcement is the Government could not prove "intent" and that is far different than a "finding" of "no intent" ... It is also bullshit .... because since when did the Government have to prove "intent" by "direct evidence"? Never! Which is why almost every Federal (and most state) jury charge includes the instruction and definition of "circumstantial evidence" in them. At least 75% of the time the prosecution must prove "intent" to commit the crime with "circumstantial evidence" .. in this case (Clinton's): lying about what happened, withholding information in response to requests and subpoenas, and destruction of evidence.

BTW: Patraeus didn't intend to "share with a foreign government" and a "foreign government" did get a hold of the material (at least not from Patraeus, if at all. Of course, I do realize that Patraeus is more important than both the Clintons put together and better served his country than both of them put together!



The Draft Dodger and the Collaborator!

I think that you have to start with the statute that HRC is arguably accused of violating, 18 USC. 793. It is a statute that is a very poor fit for electronic information. It was drafted in 1917. It has not been substantively amended since, though there have been amendments to add a small phrase, add outline structure, etc. It also requires that a person act "intentionally" or by "gross negligence." However, the record indicates that the gross negligence provision -- largely unprecedented for a criminal statute -- has never been used.

Clearly, HRC had no intention to share information with a foreign agent, nor to removed [them] from its proper place of custody". One really wonders where the proper place of custody of an e-mail really is? There is not statutory provision prohibiting a private server. Indeed Colin Powell, contrary to some media reports, did indeed use a private server, too. The private server he used was not a personal server, but was a private server owned or operated by his ISP and used by thousands if not tens of thousands of other users. He likely had no idea what security measures the ISP took any more than you or I would know if we used an ISP hosted e-mail account. At least HRC was using a private server that she actually had possession of and had take reasonable steps to secure it through the use of IT professionals.

So I think the main reasons the FBI didn't prosecute was that there was no intent, there was no harm of any kind, and that there was a more than good faith effort by HRC and her staff to take appropriate precautions. Indeed, there is no evidence that her server was hacked. Of course absence of evidence is not evidence of absence. Presumably it could have been hacked had the hackers left no traces. But we know that the secure State Department e-mail system was hacked several times during the same period.

As for the investigative tactics mention in the article, yes, the FBI sometimes uses those. Often times they do not. Generally they don't, at least in my limited experience with criminal investigations. Those are reserved for big time cases. This never had big time written on it. I predicted as soon as I heard the facts that no prosecutor would ever bring charges on these facts. I think the only reason that it received as much attention as it did was Republican Congressional investigators constantly flogging it for partisan political purposes and Comey (a Republican) making an entirely inappropriate statement about the investigation that violated DOJ guidelines (again for partisan political purposes). Originally Posted by TexTushHog

Comey said what he did because he knew hildebeest couldn't be prosecuted without throwing shade on hidebeest's accomplices ... including Odumbo.

Well, you asked for his take. He gave it. You shit on it.

Are you hunters or gatherers?

Well, you asked for his take. He gave it. You shit on it.

Are you hunters or gatherers? Originally Posted by Yssup Rider

Whatever that means. But you are a cocksucker.

So what it comes down to is Hillary is inept, careless, and stupid, and naive about the dangers in the World.
There is no law against those, I suppose.

And at least half of the voters in the Country believe these to be great qualities in a President.

Whatever that means. But you are a cocksucker. Originally Posted by bambino

It means he is a "gatherer" ... kinda like spittoon.

It means he is a "gatherer" ... kinda like spittoon. Originally Posted by LexusLover

The cocks come to him at the glory holes. He's too lazy to hunt.

So what it comes down to is Hillary is inept, careless, and stupid, and naive about the dangers in the World.
There is no law against those, I suppose.

And at least half of the voters in the Country believe these to be great qualities in a President. Originally Posted by Jackie S

I'll agree Hildabeast is inept, careless and stupid. Naive about world danger? Sure, but not as much as Trump, prone to tweeting angry responses at 3:00AM.

Who's more likely to punch the red button when they've lost their cool? At least she lived with it for eight years without ICBMs soaring overhead.

I can't believe this one thing wouldn't prevent anybody to vote for him. Scares the flying fuck out of me.

I'll agree Hildabeast is inept, careless and stupid. Naive about world danger? Sure, but not as much as Trump, prone to tweeting angry responses at 3:00AM.

Who's more likely to punch the red button when they've lost their cool? At least she lived with it for eight years without ICBMs soaring overhead.

I can't believe this one thing wouldn't prevent anybody to vote for him. Scares the flying fuck out of me. Originally Posted by Prolongus

First off ProlapsedBunghole, there is no "red button". There is a card with the codes on them. And when Hillary was around them Bill lost them for a couple months you imbecile.

https://amp.theguardian.com/world/20...l-donald-trump

At least she lived with it for eight years without ICBMs soaring overhead. Originally Posted by Prolongus

"lived with" what? The "red button" as you say?

As the "First Lady" who couldn't find cancelled checks in shoe boxes in her clothes closet and dodged sniper fire on the tarmac in Europe ..... not to mention not knowing her hubby was getting his knob polished in the other end of the house .....

... she was so fucking far away from the "red button" it would have appeared to be a pimple on a gnat's ass to her at 100 yards!

All I can say to you: "Give me a FUCKING break"!!!!!!

You are seriously Gruberized!!!

I'll agree Hildabeast is inept, careless and stupid. Naive about world danger? Sure, but not as much as Trump, prone to tweeting angry responses at 3:00AM.

Who's more likely to punch the red button when they've lost their cool? At least she lived with it for eight years without ICBMs soaring overhead.

I can't believe this one thing wouldn't prevent anybody to vote for him. Scares the flying fuck out of me. Originally Posted by Prolongus

There are protocols that have to be followed Bunghole. A crazy POTUS could not trigger the nukes by himself. What a moron.

https://www.quora.com/If-the-US-Pres...nyone-stop-him

I think that you have to start with the statute that HRC is arguably accused of violating, 18 USC. 793. It is a statute that is a very poor fit for electronic information. It was drafted in 1917. It has not been substantively amended since, though there have been amendments to add a small phrase, add outline structure, etc. It also requires that a person act "intentionally" or by "gross negligence." However, the record indicates that the gross negligence provision -- largely unprecedented for a criminal statute -- has never been used.

Why would the FBI limit itself to potential violations of the 1917 Espionage Act? Surely her actions ran afoul of other federal statutes. What about the destruction of federal records or the destruction of evidence under subpoena by Congress? Do you think it's ok for her to willfully thumb her nose at FOIA and Congress and face no legal consequences? I can understand reluctance to prosecute based on no prior precedent under an outdated 1917 law, but there should have been other avenues for Comey to pursue. Don't you agree?

As the authors of the WSJ op-ed noted, Hillary's staffers like Cheryl Mills made implausible statements to investigators, yet the FBI strangely did not pounce on their obvious inconsistencies or follow up the way they went after Martha Stewart or Scooter Libby or Bob McDonnell.


Clearly, HRC had no intention to share information with a foreign agent, nor to removed [them] from its proper place of custody". One really wonders where the proper place of custody of an e-mail really is? There is not statutory provision prohibiting a private server. Indeed Colin Powell, contrary to some media reports, did indeed use a private server, too. The private server he used was not a personal server, but was a private server owned or operated by his ISP and used by thousands if not tens of thousands of other users. He likely had no idea what security measures the ISP took any more than you or I would know if we used an ISP hosted e-mail account. At least HRC was using a private server that she actually had possession of and had take reasonable steps to secure it through the use of IT professionals.

Ok, I don't believe she intended to share info with foreign agents either. But she clearly intended from Day 1 to remove her records from the proper place of custody! Why do you “wonder” where that is? Her records obviously belong at the State Department! It's incredibly lame to say there is no statutory provision against a private server, and even lamer to drag Colin Powell into this muck when you know the scale and scope of his occasional use of say, a yahoo or AOL account, for anything associated with his official duties was in no way comparable to Hillary keeping 100% of her records off the State Dept. grid. And how can you confidently assert that she took “reasonable steps to secure” her private server “through the use of IT professionals” - when her chief IT staffer Brian Pagliano has refused to testify?


So I think the main reasons the FBI didn't prosecute was that there was no intent, there was no harm of any kind, and that there was a more than good faith effort by HRC and her staff to take appropriate precautions. Indeed, there is no evidence that her server was hacked. Of course absence of evidence is not evidence of absence. Presumably it could have been hacked had the hackers left no traces. But we know that the secure State Department e-mail system was hacked several times during the same period.

As I just stated, there WAS intent to circumvent federal records/FOIA/Congressional oversight requirements. HRC even admitted to such a motive in one of the released emails. Don't you agree? And how can you possibly proclaim there was “no harm of any kind”? I don't know if the execution of an Iranian agent can be directly attributed to the reckless mention of his name in her emails, but plenty of people suspect this. You say there is no evidence her server was hacked. Former NSA Director Michael Hayden (a Pittsburgh native) says he “would lose all respect for scores of intelligence services around the world if they did not have all the access they wanted” to her server. My own belief is that we DO know it was hacked, but we're being coy about it because we don't want the state-sponsored hackers to know we know how they did it. Pointing out that the State Dept. system WAS hacked is another extremely lame argument. Are you suggesting Hillary set up her private server because she didn't trust the State Dept.'s IT security? If not, you really should drop that line of defense.


As for the investigative tactics mention in the article, yes, the FBI sometimes uses those. Often times they do not. Generally they don't, at least in my limited experience with criminal investigations. Those are reserved for big time cases. This never had big time written on it. I predicted as soon as I heard the facts that no prosecutor would ever bring charges on these facts. I think the only reason that it received as much attention as it did was Republican Congressional investigators constantly flogging it for partisan political purposes and Comey (a Republican) making an entirely inappropriate statement about the investigation that violated DOJ guidelines (again for partisan political purposes).

I have no basis to judge how frequently the FBI uses the strong-arm investigative tactics mentioned in the op-ed piece. I am not a fan of them, so I hope they are used sparingly, as you claim. However, I think it is ludicrous for you to say this case “never had big time written on it”. What's your definition of “big time” and why does it fit Martha Stewart and Scooter Libby and Bob McDonnell but not Hillary Clinton? You are eager to downplay the facts of the HRC server scandal, why not the other three? Of course Republican Congressional investigators flogged this! HRC thumbed her nose at them and made our State Dept. complicit in hiding and withholding her records for 2-1/2 years, until a Romanian hacker named Guccifer pulled back the curtains on her obstruction of proper Congressional and FOIA subpoenas. I don't care if you're a D or an R, if you were arrogantly disrespected in this way, you would be mad as hell too! Every political scandal has partisan overtones - so what? That doesn't make any of them a non-scandal.

I have no idea what your reference is when you say Comey violated DOJ guidelines for partisan political purposes. In restrospect, IMO this whole case screamed for the appointment of a Special Prosecutor from the start. Keeping it under DOJ control made the outcome as predictable as the backlash against it. Originally Posted by TexTushHog

Hey Tush, thanks for your quick reply. I appreciate your insights. Now let's move beyond talking points. My comments are in blue. Personally, I don't think HRC should be jailed but it bothers the fuck of me that she faced NO consequences for her actions. No sanctions, no penalties, no reprimand of any kind. I would have a lot more faith in the system had the Democrats stood up and said no, you can't run for POTUS, this is a huge and disqualifying liability. But they didn't.

As the WSJ said, no wonder millions of Americans think the system is rigged.