The legal principle that a crime requires intent must be defended to uphold liberty, even if it means absolving Hillary Clinton.
Judge Napolitano in his article “Two Smoking Guns: FBI on Hillary’s Case” explains the FBI’s investigation of Hillary Clinton. There are two aspects of the investigation. The original source of her trouble is the charge that she failed to safeguard national security secrets.
As Judge Napolitano explains, this crime does not require intent and can result from negligence or simply from a lack of awareness that a secret is being revealed, as in the case that Judge Napolitano provides of the US Navy sailor who was prosecuted for espionage because a “selfie” he sent to his girlfriend revealed a sonar screen in the background. An even more egregious case is that of the US Marine who was prosecuted for using email to alert superiors to the presence of an al-Quada operative inside a US military compound. The email is considered unsecure and thus the Marine was prosecuted for revealing a secret known only to himself.
In view of these unjustified prosecutions of US military personnel, the FBI has no alternative to recommending that Hillary be indicted.
Whether Hillary will be indicted ostensibly depends on the Justice (sic) Department and the White House. In fact, it is unlikely that either Wall Street or the military/security complex wants Hillary indicted as both have invested too many millions of dollars in her presidential candidacy, and both interest groups are more powerful than the Justice (sic) Department and the White House.
I do not think that Hillary was a good US senator and Secretary of State, and I do not think she is qualified to be President of the US. Nevertheless, I do wonder how important the secrets are about which she is accused of negligence. Even the one possible serious disclosure that Judge Napolitano provides of Hillary forwarding a photo from a satellite of a North Korean nuclear facility doesn’t strike me as important. The North Koreans, along with the entirety of the world, know that the US has satellites and communication intercepts operating against them 24/7.
Many things with secret classifications are not secrets. In my career I had many security clearances. As staff associate, Defense Appropriations Subcommittee, House Committee on Appropriations, I had top secret clearances because secret weapon systems were at stake. It was a joke among the staff that many of the “secrets” were available in the public defense literature.
As Assistant Secretary of the Treasury I received the CIA’s daily briefing of the President. It was boring reading. I came to the conclusion that the CIA was not going to report anything of consequence that possibly could turn out to be wrong.
Later, as a member of a secret Presidential committee to investigate the CIA’s view of the Soviet Union’s ability to withstand an arms race, I had very high clearances as the committee had subpoena power over the CIA. If the Kremlin had had access to the top secret documents, all the Kremlin would have learned is that the CIA had a much higher opinion of the capability of the Soviet economy than did the Kremlin.
Distinguished law professors have concluded that the US government classifies documents primarily in order to hide its own mistakes and crimes. We see this over and over. The US government can escape accountability for the most incredible mistakes and the worse crimes against the US Constitution and humanity simply by saying “national security.”
In my opinion, it is the second FBI investigation of Hillary that should be pursued. This is a much more serious possible offense. There is suspicion that Bill and Hillary privatized their public offices and turned them into a money faucet for themselves.
This is a serious problem everywhere in the West. A few years out of office and Bill and Hillary can drop $3 million on their daughter’s wedding. A year or so out of office and Tony Blair was worth $50 million. As an Assistant Secretary of Defense once told me, “European governments report to us. We pay them, and we own them.”
In Anglo-American legal history, one foundation of liberty is the requirement that crime requires intent. I do not believe that Hillary intentionally revealed secrets. If she was negligent, that should be made public and should be sufficient to disqualify her from occupying the White House. What is clear to me is that the legal principle that crime requires intent is far more important than “getting Hillary.” This foundational principle of liberty should be protected even if it means letting Hillary go.
And certainly Obama should pardon the sailor and marine.