Tuesday, 05 July 2016 12:57
Snowden, a criminal, Hillary Clinton, not? FBI Director Comey, where's the justice?
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Is it time to get technical yet?

Did Hillary Clinton violate federal laws by moving U.S. Government documents and emails to her private server?

FBI Director James Comey says no, and he goes further: “No reasonable prosecutor would charge” Hillary.  But Comey, a registered Republican, former Bush appointee and now an Obama appointee, is rumored to be in line for a U.S. Supreme Court appointment if Hillary wins.  

Is Comey’s statement true that “no reasonable prosecutor would charge” Hillary?  Or is that the future talking?

When government employee Edward Snowden went on his document-revealing vendetta, Eric Holden’s U.S. Attorney General’s Office charged him with embezzlement of documents under Section 641 in Title 18 of the U.S. Code.  Holden’s successor, Loretta Lynch, maintained the charges against Snowden.

Snowden shared the documents with the world.  He thought it outrageous that the U.S. Government spies on its own citizens, reads their google searches and emails, and horns in on their PlayStation games.  When the U.S. Government disagreed, Snowden fled and eventually landed in Putin’s Russia to avoid prosecution.  Catching Snowden was so important that the United States violated diplomatic immunity and forced Bolivia’s president’s plane to land in the Alps, mistakenly believing Snowdon was aboard.

But it pays to have a really big job like Hillary’s, rather than Snowden’s low-level clerky one.

And it pays to have powerful friends like President Obama, who flies Hillary Clinton around the country aboard Air Force One so that she can run for president even as the FBI mulled over whether she is guilty of violating Title 18 Section 641– the same charge Snowden faces. 

No need to force Obama’s plane down because we already know Hillary’s on it!

And Hillary wants that plane all to herself– very soon!

But how can the FBI’s James Comey apply the laws to Snowden, and not to Hillary?  “I’d love to apprehend [Snowden] so he can enjoy the benefits of the freest and fairest criminal justice system in the world,” Comey’s said.

But then, why let Hillary go free?  What is wrong with Hillary too “enjoy[ing] the benefits of the freest and fairest criminal justice system in the world?”

Is Donald Trump right?  Is the fix now in?

Hillary’s strongest defense to claims she mishandled and destroyed State Department documents has always been that she had a right to those documents and emails. But is Hillary’s defense the very reason she could be charged with embezzlement?

Don’t take my word for it, and don’t take James Comey’s or Hillary’s or Loretta Lynch’s or even President Obama’s word for it.  They are all lawyers who should know better, but the decision on what Hillary did (like what Snowden did) comes from the highest lawmaker in the land– the U.S. Supreme Court. 

The Supreme Court defines embezzlement as “ the fraudulent appropriation of property by a person to whom such property has been entrusted, or into whose hands it has lawfully come. It differs from larceny in the fact that the original taking was lawful, or with the consent of the owner, while in larceny the felonious intent must have existed at the time of the taking.”

This means that, yes, Hillary did have lawful possession of the U.S. Government’s documents and emails in the beginning.  Reading, handling and possessing these was part of her job.

But did Hillary cross a line? 

The federal crime of embezzlement has six elements:  First, a trust or fiduciary relationship between Hillary as Secretary of State and the U.S. Government; second, the property Hillary took– the documents and emails– must be government property; third, the property had to enter her possession or care  by virtue of her employment; fourth, the property must have belonged to the United States; fifth, Hillary’s use of the Government’s property must  constitute a fraudulent conversion or appropriation of it to her own use and sixth, Hillary acted intentionally to deprive the Government of its use of this property.  

And here’s the interesting part: Hillary need not have intended to deprive the Government of its property permanently.  Just moving the documents off the State Department server or re-routing them means that Hillary’s actions could be criminal.

The fifth element is likely what the FBI questioned Hillary about so intently last week.  Is a polygraph needed? 

The FBI’s already investigated Bryan Pagliano, Hillary’s IT director for her failed 2008 presidential campaign.  When Obama softened Hillary’s defeat by appointing her Secretary of State, Hillary gave Pagliano a State Department job.  Hillary then also hired Pagliano separately, to work on her private server at her home in Chappaqua, New York– pretty far away from any State Department office.  Hillary paid Pagliano out of her own pocket– or was it from the Clinton Foundation’s pocket?  It’s all so blurry.  

The FBI gave Pagliano immunity to discuss his work for Hillary.  But when Judicial Watch questioned Pagliano under oath about his work for Hillary at the State Department and at her home, Pagliano “took the Fifth” at least 125 times.  

The Fifth can’t be used for honest mistakes.  It can only be used for crimes. 

And in civil depositions or at trial, relevant questions must be answered– unless you fear that a truthful answer could send you to jail.  Here, it would be a truthful answer about what Pagliano did for Hillary.

Sworn testimony from Hillary’s long-time assistant, Huma Abedin, is also disturbing.  The Associated Press sued the State Department after State refused to provide Hillary’s calendars and schedules, pursuant to the AP’s Freedom of Information requests.  Huma testified that Hillary had destroyed her schedules, putting them in “burn bags...on more than one occasion.”

And no, Hillary was NOT supposed to do that!

She wasn’t supposed to transfer documents, set up private servers for official work, or hit “delete” keys, either.

But FBI Director James Comey says that even if Hillary may have done all that...so what?   “What difference – at this point, what difference does it make?”

Or was that Hillary talking about the murders of Americans in Benghazi?

It’s all so blurry!

Is it time to get technical yet?

Reaction to FBI's Comey's Hillary Clinton email decision & Trump tweet



Last modified on Tuesday, 05 July 2016 13:46
Sarah Whalen

sarahw2Sarah Whalen is a university journalism instructor, attorney and author.

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