No one accused Obama of being in league with Vladimir Putin when the president whispered on a hot microphone to his counterpart, Dmitry Medvedev, “After my election I have more flexibility” to negotiate US plans for a missile defense system in Europe. Medvedev faithfully replied, “I will transmit this information to Vladimir.” Imagine if Trump had held such a conversation? He would instantly have been branded as a de facto agent of the Kremlin, followed by immediate and sustained calls for his impeachment on the grounds of treason. The double standard is conspicuous. When Obama engaged with the Russians, it was extolled as sage diplomacy. When Trump attempted to do the same, it was roundly condemned as treachery and sedition.
2. David Drucker, “Romney Was Right About Russia,” CNN, July 31, 2017.
3. Anne Gearan, Paul Sonne, and Carol Morello, “U.S. to Withdraw from Nuclear Arms Control Treaty with Russia, Raising Fears of a New Arms Race,” Washington Post, February 1, 2019.
4. Eli Lake, “Reckoning Time: Security Officials Played Politics on Russiagate,” New York Post, March 27, 2019.
5. United States Code, 18 U.S.C. § 793, “Gathering, Transmitting or Losing Defense Information.”
6. Meghan Keneally, Liz Kreutz, and Shushannah Walshe, “Hillary Clinton Email Mystery Man: What We Know About Eric Hoteham,” ABC News, March 5, 2015; Josh Gerstein, “The Mystery Man Behind Hillary’s Email Controversy,” Politico, March 4, 2015.
7. Per FBI interviews with Clinton IT support staff, Clinton had a Sensitive Compartmented Information Facility (SCIF) in her Washington, DC, residence and her Chappaqua, New York, residence. However, the FBI was informed that both of those SCIFs were unsecured. See Gregg Re, “Attempt to Hack Email Server Stunned Clinton Aide, FBI Files Show,” Fox News, May 7, 2019.
8. Clinton received a briefing on how to handle classified information on or about January 22, 2009, upon being confirmed as secretary of state. However, she reportedly skipped a “refresher” briefing two years later, in 2011. Separately, she told the FBI she had received no training at all on the topic. See Richard Pollock, “Exclusive: Clinton Received Training on Classified Docs Just Once in Three Years at State,” Daily Caller, March 24, 2016; Catherine Herridge and Pamela Browne, “Clinton Skipped Special Cyber Briefing in 2011, Documents Show,” Fox News, March 25, 2016; Kevin Johnson and David Jackson, “Clinton Told FBI She Had No Training on How to Handle Classified Documents,” USA Today, September 2, 2016.
9. United States Code, 18 U.S.C. § 793 (d) and (e), “Gathering, Transmitting or Losing Defense Information”:
Whoever, lawfully [or unlawfully] having possession of, access to, control over, or being entrusted with any document . . . relating to the national defense . . . has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated . . . to any person not entitled to receive it . . . or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it . . . shall be fined under this title or imprisoned not more than ten years, or both. [Author’s italics.]
10. United States Code, 18 U.S.C. § 1924(a), “Unauthorized Retention of Removal of Classified Documents or Material.”
11. “Statement by FBI Director James B. Comey on the Investigation of Secretary Hillary Clinton’s Use of a Personal E-Mail System,” FBI National Press Office, July 5, 2016, 3, available at https://www.fbi.gov/news/pressrel/press-releases/statement-by-fbi-director-james-b-comey-on-the-investigation-of-secretary-hillary-clinton2019s-use-of-a-personal-e-mail-system.
12. Ibid.
13. United States Code, 18 U.S.C. § 371, “Conspiracy to Commit Offense or to Defraud United States”; United States Code, 18 U.S.C. § 286, “Conspiracy to Defraud the Government with Respect to Claims.”
14. Andrew McCarthy, “Restoring the Rule of Law to the Protection of Classified Information,” National Review, January 6, 2018.
15. United States Code, 18 U.S.C. § 793(f), “Gathering, Transmitting or Losing Defense Information.”
16. “Statement by FBI Director James B. Comey on the Investigation of Secretary Hillary Clinton’s Use of a Personal E-Mail System.”
17. Office of the Inspector General, U.S. Department of Justice, “A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election,” https://www.justice.gov/file/1071991/download, iv.
18. “FBI Records: The Vault,” Federal Bureau of Investigation, https://vault.fbi.gov/hillary-r.-clinton/hillary-r.-clinton-part-33-of-33/view. See also Daniel Chaitin and Jerry Dunleavy, “FBI Docs: Study Found Clinton Email Server Hacked, Info Found on Dark Web,” Washington Examiner, June 7, 2019; Chris Enloe, “FBI Releases Damning New Hillary Clinton Email Docs That Discuss ‘Smoking Gun Document,’ ” The Blaze, June 7, 2019.
19. Ibid.
20. Ibid.
21. “Statement by FBI Director James B. Comey on the Investigation of Secretary Hillary Clinton’s Use of a Personal E-Mail System.”
22. Gregg Jarrett, The Russia Hoax: The Illicit Scheme to Clear Hillary Clinton and Frame Donald Trump (New York: Broadside Books, 2018), 24–27.
23. “Statement by FBI Director James B. Comey on the Investigation of Secretary Hillary Clinton’s Use of a Personal E-Mail System.”
24. Office of the Inspector General, U.S. Department of Justice, “A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election,” v, vi.
25. Memorandum for the Attorney General, “Restoring Public Confidence in the FBI,” Rod Rosenstein, deputy attorney general, May 9, 2017, available at https://www.documentcloud.org/documents/3711188-Rosenstein-letter-on-Comey-firing.html.
26. Ibid., 497.
27. Chris Wallace, interview with President Barack Obama, Fox News Sunday, Fox News, April 10, 2016.
28. Office of the Inspector General, U.S. Department of Justice, “A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election,” 186.
29. Politico Staff, “Full Text: James Comey Testimony Transcript on Trump and Russia,” Politico, June 8, 2017; Michael S. Schmidt, “Comey Memo Says Trump Asked Him to End Flynn Investigation,” New York Times, May 16, 2017.
30. Author’s interview with President Donald J. Trump, Oval Office, White House, June 25, 2019.
31. Office of the Inspector General, U.S. Department of Justice, “A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election,” Exhibit C.
32. Ibid., 188, 193.
33. Ibid., 189.
34. Ibid., 191, 192.
35. Ibid., Exhibit C.
36. Pamela K. Browne and Catherine Herridge, “Hillary Clinton Signed Non-Disclosure Agreement to Protect Classified Information While Secretary of State,” Fox News, November 7, 2015; Brendon Bordelon, “Clinton Acknowledged Penalties for ‘Negligent Handling’ of Classified Information in State Department Contract,” National Review, November 6, 2016; Chuck Ross, “Document Completely Undermines Hillary’s Classified Email Defense,” Daily Caller, November 6, 2016; Jeryl Bier, “Hillary Signed She Received Briefing on Classified Information, but Told FBI She Hadn’t,” Weekly Standard, September 2, 2016.
37. Office of the Inspector General, U.S. Department of Justice, “A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election,” Exhibit C.
38. Ibid., 190.
39. Ibid., 193.
40. Some lawyers and legal commentators have argued that prosecutors must still prove “intent” under the “gross negligence” provision of the amended Espionage Act, Section (f). Think about that for just a moment. How exactly does a person intend to do something in a grossly negligent manner? Either people intend to commit an act, or they perform an act in a grossly negligent manner. Can b
oth be done simultaneously? They cannot. The former reflects a specific state of mind, while the latter tends to reflect the absence of it.
Those who conflate “intent” with “gross negligence” have relied mistakenly on a 1941 Supreme Court case called Gorin v. United States. In Gorin, the high court was interpreting the explicit language of the original Espionage Act of 1917 when it held that “intent” must be proven. However, seven years after the Gorin decision, the act was amended and supplanted by several sections of 18 U.S.C. 793, including the “gross negligence” provision (f). Thus, Gorin has no application or relevance to Section (f) because that provision of the law did not exist at the time the court rendered its ruling.
In the decades since the Gorin case, courts have explained that “intent” is required for other sections of the statute, but not Section (f), which established a lower threshold of “gross negligence.” For example, in United States v. McGuinness, the court stated that “it is clear that Congress intended to create a hierarchy of offenses against national security, ranging from ‘classic spying’ to mere losing classified materials through gross negligence.”
In the famous “Pentagon Papers” case, Justice Byron White wrote that the district court erred in relying on Gorin when it determined that the government needed to prove “only willful and knowing conduct.” White noted that Gorin “arose under other parts of the predecessor [law] . . . parts that imposed different intent standards not repeated in” the successor statute.
41. “Committee on the Judiciary and Committee on Oversight and Government Reform Joint Hearing on ‘Oversight of FBI and DOJ Actions Surrounding the 2016 Election: Testimony by FBI Deputy Assistant Director Peter Strzok,’ ” July 12, 2018, https://judiciary.house.gov/legislation/hearings/committee-judiciary-and-committee-oversight-and-government-reform-joint-0.
42. John Solomon, “FBI Gave Clinton Email Investigation ‘Special’ Status, Deputy Director Email Shows,” The Hill, November 15, 2017; “Rep. Gaetz: Time for Mueller to Show Collusion Evidence or End Investigation,” Fox News, December 20, 2017; Mary Kay Linge, “Trump Slams FBI’s McCabe over Planned Retirement,” New York Post, December 23, 2017.
43. Testimony of FBI Director James Comey, Senate Judiciary Committee, May 3, 2017, available at https://www.washingtonpost.com/news/post-politics/wp/2017/05/03/read-the-full-testimony-of-fbi-director-james-comey-in-which-he-discusses-clinton-email-investigation/?utm_term=.313b13f20553; Peter Baker, “Comey Raises Concerns About Loretta Lynch’s Independence,” New York Times, June 8, 2017; Tal Kopan, “Comey: Lynch Asked for Clinton Investigation to Be Called a Matter,” CNN, June 8, 2017; Ed O’Keefe, “Comey Repeats That Lynch Asked Him to Describe Clinton Investigations as a ‘Matter,’ ” Washington Post, June 8, 2017; Kelly Cohen, “James Comey: Loretta Lynch Told Me Not to Call Clinton Email Probe an ‘Investigation,’ ” Washington Examiner, June 8, 2017.
44. “Ex–Mueller Aides’ Texts Revealed: Read Them Here,” Fox News, December 13, 2017.
45. Brooke Singman, “New Texts Show ‘Fix Was In’ for Clinton Email Probe, GOP Lawmakers Say,” Fox News, January 26, 2018.
46. “Ex–Mueller Aides’ Texts Revealed: Read Them Here”; Samuel Chamberlain, “Newly Released Texts Between Ex–Mueller Team Members Suggest They Knew Outcome of Clinton Email Probe in Advance,” Fox News, January 21, 2018.
47. Committee on the Judiciary, U.S. House of Representatives, “Interview of: Peter Strzok,” June 27, 2018, https://dougcollins.house.gov/sites/dougcollins.house.gov/files/06.27.18%20Interview%20Of%20Peter%20Strzok.pdf?utm_source=Collins+Judiciary+Press+List&utm_campaign=96979c2884-EMAIL_CAMPAIGN_2019_03_14_11_47&utm_medium=email&utm_term=0_ff92df788e-96979c2884-169043429, 122.
48. Office of the Inspector General, U.S. Department of Justice, “A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election,” pages xi, 147, 329, and 420.
49. Committee on the Judiciary, U.S. House of Representatives, “Interview of: Peter Strzok,” 193.
50. Committee on the Judiciary, U.S. House of Representatives, “Interview of: Lisa Page,” July 13, 2018, https://dougcollins.house.gov/sites/dougcollins.house.gov/files/Lisa%20Page%20interview%20Day%201.pdf.
51. Brooke Singman, Alex Pappas, and Jake Gibson, “More than 50,000 Texts Exchanged Between FBI Officials Strzok and Page, Sessions Says,” Fox News, January 22, 2018.
52. “Statement by FBI Director James B. Comey on the Investigation of Secretary Hillary Clinton’s Use of a Personal Email System.”
53. Committee on the Judiciary, U.S. House of Representatives, “Interview of: Lisa Page,” 20.
54. Stephen Loiaconi, “ ‘I’m with Her’: Timeline of Texts the OIG Said ‘Cast a Cloud’ over Clinton Case,” WJLA-TV, June 15, 2018.
55. Christopher Sign, “U.S. Attorney General Loretta Lynch, Bill Clinton Meeting Privately in Phoenix Before Benghazi Report,” KNXV-TV, ABC15, June 29, 2016 (updated July 4, 2016).
56. Matt Zapotosky, “Attorney General Declines to Provide Any Details on Clinton Email Investigation,” Washington Post, July 12, 2017.
57. Code of Federal Regulations, 28 § C.F.R. 45.2, “Disqualification Arising from Personal or Political Relationship.” This regulation states that “no employee shall participate in a criminal investigation or prosecution he [or she] has a personal or political relationship with any person or organization substantially involved in the conduct that is the subject of the investigation or prosecution.” Lynch had both a personal and a professional relationship with Bill and Hillary Clinton. The private tarmac meeting underscored their close personal connection, and Bill’s selection of Lynch for a high-ranking position at the Justice Department is evidence of their professional association. The two individuals likely knew their meeting was improper because the FBI on the scene instructed everyone that “no photos, no pictures, no cell phones” could be used to capture what took place. (See Douglas Ernst, “FBI Ordered ‘No Cellphones’ to Airport Witnesses of Lynch-Clinton Meeting, Reporter Says,” Washington Times, July 1, 2016.) Under a Freedom of Information Act request, the FBI replied that “No records responsive to your requests were located.” (See Jordan Seculow, “DOJ Documents Dump to ACLJ on Clinton Lynch Meeting: Comey, FBI Lied, Media Collusion, Spin and Illegality,” American Center for Law and Justice, August 2017.) A year later, the DOJ produced more than four hundred pages of emails, although the contents of what Lynch and Clinton discussed were heavily redacted.
58. Zeke J. Miller, “Transcript: Everything Hillary Clinton Said on the Email Controversy,” Time, March 10, 2015.
59. Eugene Scott, “Hillary Clinton on Emails: ‘The Facts Are Pretty Clear,’ ” CNN, July 28, 2015.
60. Josh Feldman, “Hillary: Use of Personal Email ‘Clearly Wasn’t the Best Choice,’ ” Mediaite, August 26, 2015; Glenn Kessler, “Clinton’s Claims About Receiving or Sending ‘Classified Material’ on Her Private Email System,” Washington Post, August 27, 2015.
61. “Statement by James B. Comey, FBI Director, House Committee on Oversight and Government Reform,” July 7, 2016.
62. Harper Neidig, “Clinton to FBI: Didn’t Know Parenthetical ‘C’ Stood for Confidential,” The Hill, September 2, 2016.
63. “CNN Exclusive: Hillary Clinton’s First National Interview of 2016 Race,” CNN, July 7, 2015, http://cnnpressroom.blogs.cnn.com/2015/07/07/cnn-exclusive-hillary-clintons-first-national-interview-of-2016-race/.
64. Chuck Grassley, “Grassley on Investigation: Let’s Be Transparent,” April 8, 2019, https://www.grassley.senate.gov/news/news-releases/grassley-investigation-transparency-lets-be-consistent.
65. Brooke Singman, “IG Confirms He Is Reviewing Whether Strzok’s Anti-Trump Bias Impacted Launch of Russia Probe,” Fox News, June 19, 2018.
66. Brooke Singman, “Lisa Page Transcripts Reveal Details of Anti-Trump ‘Insurance Policy,’ Concerns over Full-Blown Probe,” Fox News, March 12, 2019.
67. Catherine Herridge and Cyd Upson, “Lisa Pag
e Testimony: Collusion Still Unproven by Time of Mueller’s Special Counsel Appointment,” Fox News, September 16, 2018; Chuck Ross, “Lisa Page Testified the FBI Hadn’t Seen Evidence of Collusion by the Time Mueller Was Appointed,” Daily Caller, September 17, 2018; John Solomon, “Lisa Page Bombshell: FBI Couldn’t Prove Trump-Russia Collusion Before Mueller Appointment,” The Hill, September 16, 2018.
68. Gregg Re, “Comey Reveals He Concealed Trump Meeting Memo from DOJ Leaders,” Fox News, December 9, 2018.
69. Inspector General Report, “A Review of Various Actions By the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election.”
70. Ibid.; Brooke Singman, “IG Confirms He Is Reviewing Whether Strzok’s Anti-Trump Bias Impacted Launch of Russia Probe.”
71. Inspector General Report, “A Review of Various Actions By the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election.”
72. John Bowden, “FBI Agents in Texts: ‘We’ll Stop’ Trump from Becoming President,” The Hill, June 14, 2018; Michael S. Schmidt, “Top Agent Said FBI Would Stop Trump from Becoming President,” New York Times, June 14, 2018.
73. “Committee on the Judiciary and Committee on Oversight and Government Reform Joint Hearing on ‘Oversight of FBI and DOJ Actions Surrounding the 2016 Election: Testimony by FBI Deputy Assistant Director Peter Strzok.’ ”
74. Ibid.
75. Byron York, “After Mysterious ‘Insurance Policy’ Test, Will Justice Department Reveal More on FBI Agent Bounced from Mueller Probe?,” Washington Examiner, December 13, 2017.
76. Joseph Wulfsohn, “McCabe Says He Doesn’t Recall Discussing Infamous ‘Insurance Policy’ with Strzok, Page in 2016,” Fox News, February 19, 2019; Terence P. Jeffrey, “IG: McCabe ‘Does Not Recall’ Meeting in His Office Where Page Argued There’s ‘No Way’ Trump’s Elected,” CNS News, June 18, 2018.
77. Committee on the Judiciary, U.S. House of Representatives, “Interview of: Lisa Page,” 38. See also Brooke Singman, “Lisa Page Transcripts Reveal Details of Anti-Trump ‘Insurance Policy,’ Concerns over Full-Blown Probe.”
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