Where Angels Prey

Where Angels Prey is a novel by Ramesh S Arunachalam. Please refer to www.whereangelsprey.com for more information

Saturday, April 9, 2016

Without Fear, Favour and/or Prejudice: Hillary Clinton’s Private E Mail/Server Saga and What the Law Says in Letter and Spirit? (PART I)



Ramesh S Arunachalam

Recently,

“Host Matt Lauer broached the subject by telling Clinton that Republicans ‘are clinging to the hope… that at some time between now and the election, and they say this, that they will get to see Hillary Clinton in handcuffs. That there will be some kind of political perp walk based on your private server.’

Hillary burst into laughter, retorting ‘Oh my goodness! Well, Matt, I know that they live in that world of fantasy and hope because they’ve got a mess on their hands on the Republican side.’

‘That is not going to happen. There is not even the remotest chance that is going to happen,’ Clinton added, claiming ‘they have been after me for 25 years.’

‘Do you think the FBI and the Justice Department write you a letter and say it was a misunderstanding? We’re sorry, carry on?’ Lauer intervened.

‘Well, we’re certainly going to carry on. I think it’s a security review,’ Clinton said of the FBI’s investigation.

‘It is a security review and there are lots of those that are conducted in our government all the time and you don’t hear about most of them. You hear about this one because, you know, it does involve me, so that’s why it gets so much attention.’

‘The Republicans’ fondest wishes will not be fulfilled.’ Hillary concluded.

Famous last words?

Hillary has continuously dismissed the notion of a criminal investigation, claiming that her email sever was legal, and attempting to spin the fact that she exposed classified material as a case of excessive government secrecy, ‘over-classification,” or “retroactive-classification.’

However, legal experts have concluded that a grand jury[i] has already been convened, and is preparing to indict Hillary, given that the FBI has some 150 agents assigned to the case, and that Justice Department officials issued immunity last month to Hillary’s former IT chief Bryan Pagliano. “[ii]

Given the above context, it must be mentioned that Hillary Clinton, when she was Secretary of State, REPORTEDLY used a private e mail to transact her official business and also SUPPOSEDLY had a private e mail server. In fact, as has been REPORTED widely, she APPARENTLY did carry on a large part of her official duties of Secretary of State of The United States using this private e mail and private server (which APPARENTLY) was located at her (personal) property. Even as the FBI investigation on this issue is REPORTEDLY taking place, a large number of articles have come up around this topic – some tarnishing Hillary and others supportive of her action and dismissive of the SUPPOSED FBI investigation.

Recently, Hillary, as noted in the quote above, also ‘claimed that her e mail server was legal’. Therefore, I attempt to explore the concerned legal issues in a series of posts in an objective manner, without fear, favour and/or prejudice, as the law should be applied.
As noted above and not to sound like a broken record, Law is law and has to be applied IMPARTIALLY without fear, favour and/or prejudice. As all of you would agree, it applies equally to Hillary Clinton as any of us and just because someone is as famous as Hillary Clinton should not afford her immunity. Likewise, her fame should NOT come in the way of awarding her misplaced justice and finding her guilty, if she really is NOT guilty.

And it does not matter even if - as has been reported –“President Barack Obama said during an interview airing Sunday on CBS's 60 Minutes, Hillary Rodham Clinton's use of a private email server to conduct government business when she served as secretary of state was a mistake but didn't endanger national security"[iii]. With all due respect, I can only say that President Obama is entitled to his opinion but as the President of the United States, it would have been (more) appropriate if he had NOT commented on this issue which is SUPPOSEDLY under investigation by the FBI, which is part of his administration and has the

mission ... to protect and defend the United States against terrorist and foreign intelligence threats, to uphold and enforce the criminal laws of the United States, and to provide leadership and criminal justice services to federal, state, municipal, and international agencies and partners. It performs these responsibilities in a way that is responsive to the needs of the public and faithful to the Constitution of the United States.‘ (https://www.fbi.gov/about-us/faqs)

Incidentally, ‘The FBI is led by a Director, who is appointed by the U.S. President and confirmed by the Senate for a term not to exceed 10 years.’ (https://www.fbi.gov/about-us/faqs)   

Therefore, as “Ron Hosko, a former senior F.B.I. official who retired in 2014 and is now the president of the Law Enforcement Legal Defense Fund, said it was inappropriate for the president to ‘suggest what side of the investigation he is on’ when the F.B.I. is still investigating. ‘Injecting politics into what is supposed to be a fact-finding inquiry leaves a foul taste in the F.B.I.’s mouth and makes them fear that no matter what they find, the Justice Department will take the president’s signal and not bring a case,’ said Mr. Hosko, who maintains close contact with current agents.”[iv]

As the ultimate custodian of the constitution in the United States, President Obama could have surely done better than this!

That said, back to the Hillary Clinton e mail issue, if she has broken law(s), she is clearly liable for punishment as per the laws concerned. On the contrary, if she has not broken the law, then, she is NOT liable for any punishment.

OK, that said, what is urgently required is a key understanding of the laws (in the United States) that MAY have been violated by this private e mail and private server issue and I put forth my analysis below in a series of posts...

In my opinion, several sections of the law are relevant to this case and these are outlined sequentially in different posts. The first relevant section reads as follows:

·         U.S. CodeTitle 18Part IChapter 37 › § 793

o   "18 U.S. Code § 793 - Gathering, transmitting or losing defense information

f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—Shall be fined under this title or imprisoned not more than ten years, or both."[v]

PLEASE NOTE THAT THE WORD CLASSIFIED DOES NOT APPEAR IN THIS SECTION. THIS NEEDS TO BE CLEARLY NOTED. THEREFORE, it must be clearly understood that this section DOES NOT necessarily require information to be CLASSIFIED INFORMATION of any sort.  Please note that there is a general limitation period for indictment for violating this section and this limitation period is ‘within ten years’ from when such violations have been (actually) committed.

The above apart, ascertaining as to whether a person violated the Section 793 (f) (given above) would require an answer to following basic questions:

a)      Was the person concerned entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense?
b)      Was the person concerned in lawful possession of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense?
c)      Was the person concerned in control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense?

d)      Did the person (through GROSS NEGLIGENCE) permit the same to be removed from its proper place of custody?
e)      Did the person (through GROSS NEGLIGENCE) permit the same to be delivered to anyone in violation of his trust?
f)        Did the person (through GROSS NEGLIGENCE) permit the same to be lost?
g)      Did the person (through GROSS NEGLIGENCE) permit the same to be stolen?
h)      Did the person (through GROSS NEGLIGENCE) permit the same to be abstracted?
i)        Did the person (through GROSS NEGLIGENCE) permit the same to be destroyed?

j)        Did the person concerned have knowledge that the same had been illegally removed from its proper place of custody and failed to make prompt report of such illegal removal to his superior officer?
k)      Did the person concerned have knowledge that the same had been delivered to anyone in violation of its trust, and failed to make prompt report of such delivery to his superior officer?
l)        Did the person concerned have knowledge that the same had been lost and failed to make prompt report of such loss to his superior officer?
m)    Did the person concerned have knowledge that the same had been stolen and failed to make prompt report of such theft to his superior officer?
n)      Did the person concerned have knowledge that the same had been abstracted and failed to make prompt report of such abstraction to his superior officer?
o)      Did the person concerned have knowledge that the same had been destroyed and failed to make prompt report of such destruction to his superior officer?

All of these questions must be answered without fail! And if the answers to questions d,e,f,g,h,i,j,k,l,m,n and o are a YES, then, the person concerned would have violated the said section and be liable for indictment as per the section concerned (provided action is taken within the stipulated limitation period). The law is simple and straight and can and must be applied without fear, favour and/or prejudice!

And to determine this, the FBI would have to DILIGENTLY examine each and every piece of record including e mails (personal and/or private) that were handed over by Hillary Clinton for investigation and also those that were SUPPOSEDLY deleted by her/her staff, correspondence from and to the White House and other stakeholders (across the world) by Hillary Clinton (including those from the White House SUPPOSEDLY asking her to use the Government e mail and servers) and all other correspondence, documents and information (including any writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note etc) related to her official duties as Secretary of State, which I take up in the next few posts!

Only such a thorough and comprehensive examination of all the records can lead us to answer questions such as the above and thereby, get us to understand as to WHETHER OR NOT, Section 793 (f) was violated by Hillary Clinton (both in terms of letter and spirit)! No wonder, it is taking the FBI a lot of time...

More about the other sections in the next few posts...

(To be continued...)

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