[abraca]

For me, Hillary being let off changed how I view the Snowden affair. Before Hillary was let off without penalty, I thought that exposing or acting carelessly with classified information was a really big deal, that it seriously put American lives at risk - AND that others were doing a good job keeping that information under wraps, so breaches would be meaningful. Now it seems more like a political game. Hillary put us in more danger than Snowden. Punishing snowden is more about keeping info out of eyes of American public (i.e., Hillary's emails still need to be redacted, even though her server was likely hacked and info is almost certainly out there and America's ememies have it.) I hope that Hillary skating will set a precedent that will allow more whistleblowers to come forward to the public with information when needed without being penalized. Perhaps whistleblowers might use the strategy of releasing information 'unintentionally' and then use the Hillary defense.

[philwelch]

Hillary stored classified information on a privately owned email server. Snowden collected a cache of classified documents and gave them to foreign journalists. There's really no comparison between the two. One is an instance of careless information security by someone who found the official systems inconvenient to use and the other is deliberately disclosing classified information.

[nostromo]

I find Hillary's actions to be worse, personally.

Hillary's actions very likely gave secret information to America's enemies. Snowden's actions gave secret information to the public.

Hillary's intentions were to circumvent FOIA rules and break the law. Snowden's intentions were to be end unconstitutional spying and uphold the law.

[snowwrestler]

When I think about Hillary's email server, which could have been hacked, I think of the State Department's email system, which we know was hacked, thoroughly, by the Russians.

If incompetence in operating unclassfied email systems on behalf of the State Department was a crime, it seems like some State IT folks would be going to jail too.

> Hillary's intentions were to circumvent FOIA rules and break the law.

One of the major findings of the FBI investigation was that she did not have criminal intent. In fact this was a major reason they recommended against prosecution.

[theandrewbailey]

> One of the major findings of the FBI investigation was that she did not have criminal intent. In fact this was a major reason they recommended against prosecution.

Snowden didn't have criminal intentions either, but many people want to prosecute him to the fullest anyway. But I also believe that Hillary's lack of charges is absolutely politically motivated. Some people are more equal than others.

[snowwrestler]

Snowden himself has stated that he knowingly and intentionally violated the law.

What he wants is an opportunity to present a whistleblower or "public interest" defense. These are affirmative defenses--you admit you committed the crime, but that you had a really good reason for doing so, which should excuse you from punishment. "Self-defense" is a well-known affirmative defense against prosecution for a violent crime.

[tootie]

You're confusing the colloquial and legal definitions. Snowden knowingly and proactively committed an illegal act. Even if he thought he was morally justified, his action was deliberate and intentional. Hillary committed an act of negligence. From a legal standpoint, she had no criminal intent and Snowden absolutely did.

[DSMan195276]

Snowden's leaks covered far more then just spying on Americans, and did give secret information about legitimate NSA programs. Saying they didn't is just not understanding the full extent of what he leaked.

[sintaxi]

I agree but I will correct you in that Snowden made it clear many times his intentions were for the public to know and have a conversation about the mass surveillance not that it should necessarily stop.

[geofft]

And what were Clinton's intentions? We can all imagine what we'd do if we had a job that required us to have reliable, working e-mail and our employer's IT systems sucked - we'd just use an outside email account. If we knew our job required higher security standards than Gmail would really be appropriate for, we'd self-host. I've thrown infrastructure for a former employer onto a personal server because it needed to work and our IT department was overworked and unfamiliar with how to run it. I'm sure all of us have used personal laptops, or Dropbox, or SSH tunnels, or AWS, or not-really-freeware, or something that violates IT policy in order to get the job done, and we had a clear conscience about it.

Now imagine that your job isn't merely writing some app but literally about making or breaking world peace, and that your IT department isn't just some tired Windows admins down the hall but the entire disaster that is the same federal government that tried to launch healthcare.gov. And that at no point in your job did anyone even set you up with an official email account in the first place. What would you do?

Both of them broke the law; both of them had very good reasons for doing so. There are arguments that they made Americans less safe by their actions, but there are definitely arguments in both cases that they made Americans more safe by their actions.

[josho]

Ok. What if you were a high level employee that could force change and you still circumvented the systems in place to protect information systems. And while you went around the secure systems you left your server unpatched and open to compromise from competitors.

[geofft]

It's pretty hard for a high-level employee to force change in a bureaucracy the size of the federal government. Remember healthcare.gov - if the CEO launches the project that will define his legacy, and the infrastructure melts down on the first day, you think some other executive can get the email systems fixed?

And in any case, fixing the email systems for an organization this big is a messy project. There are countless employees who have the existing system set up and have workflows depending on it. There's special handling of classified information, records-keeping, and so forth. All of this will break, somehow, when you try to migrate it. I'm sure Hillary could have chosen to be the meddling exec who demands an IT overhaul to suit her needs if she really wanted to prioritize that, but it does not actually seem like that would have been better for America. (Or for her public perception, for that matter.)

[ztratar]

Nice propaganda.

Hillary's intentions were in no way to break the law. That was very clearly declared false by the FBI.

[weaksauce]

In the evidence they found, they couldn't find sufficient intent that she intended to violate the law to suggest persecution to the DA. That's quite different than what you stated and what you posit the FBI stated. Basically the FBI wasn't a mind reader and there wasn't an email that said "hey we should do this to circumvent the foia"

[AckSyn]

> they couldn't find sufficient intent that she intended to violate the law

This is the problem. It's not their job to find intent but that a crime had been committed and she should have been prosecuted. There are literally THOUSANDS of examples where someone hadn't intended to commit a crime and were punished regardless of that citing the often quoted "ignorance of the law is no excuse".

Hillary knew the law. She should have known better being in her position but she chose to circumvent the rules (for a number of reasons) and as a result the law was broken.

Her escape from prosecution is nothing more than a blatant public travesty of justice.

[chrisbennet]

"should have known better"? C'mon, it's not like she's a lawyer or anything...oh wait.

[argonaut]

Breaking the law requires intent or gross negligence, and the FBI said there was no evidence of either (gross negligence being a higher standard than "extreme carelessness").

[snowwrestler]

So what is the evidence that she did have criminal intent?

[weaksauce]

That's actually fairly hard to prove, and it's not really the FBI's job to make that accusation. Both the Clintons are lawyers so they know what line to not cross apparently. I don't care for her and I don't care for trump either so this election is unfortunate.

[stonogo]

This is what intent to break the law looks like:

http://i.imgur.com/NneHu1w.jpg

I don't know what the right answer is here, but I am certain that I don't find incompetence a better excuse than malfeasance.

[joering2]

> This is what intent to break the law looks like:

No it is not. "nonpaper" means scrap off all sensitive data and send it nonsecure. Comey explained what she meant in this email; long version would be: "okay, remove all the sensitive information from this note so that you can lawfully send it via non-secure line; then go ahead and do it".

No intent here.

[geofft]

This is correct, and I'm confused that HN seems to find it downvote-worthy.

[stonogo]

When I worked for the State Department, that phrase meant 'digitize it'. When did the meaning change?

[snowwrestler]

1) Talking points don't contain classified information--that's why they are "talking" points.

2) Other evidence showed that this particular set of talking points ended up being sent by secure fax anyway.

[stonogo]

1) This is not true.

2) That's why I said this is what intent looks like -- I'm not making any claims about whether she did in fact break any laws. I have no way of knowing that.

[morganvachon]

> I don't know what the right answer is here, but I am certain that I don't find incompetence a better excuse than malfeasance.

In the United States there are laws regarding criminal negligence, and hypothetically speaking, if someone died as a result of her criminal negligence, it would be considered criminally negligent homicide in most states and could result in prosecution and a real prison sentence.

Would she ever be tried or found guilty of it? Based on the outcome so far, I doubt it; the powerful and connected rarely fall. But the standard does exist.

[mark_l_watson]

I would argue that her circumvently the freedom of information laws has illegal intent. Government documents must be oreserved, and she weaseled around that.

Politions' actions should be transparent, at least in a better world.

[rrggrr]

Anyone who believes Hillary had no self serving design in the email scandal is not paying attention.

[NotSammyHagar]

You are completely wrong about the findings about Hillary. She was not trying to break the law. She made a stupid decision, she should suffer criminal penalties for it, but she was just an idiot. Let's compare that to something that was found to have occurred with criminal intent:when the Bush administration outed the cia agent, Valerie Plame, that was a clearly intentional illegal action.

[pessimizer]

The FBI was very clear: it "found no evidence that any of the additional work-related e-mails were intentionally deleted in an effort to conceal them."

That's not at all what you're saying. The FBI isn't full of psychics, and has no ability to detect intention or read emails that have been permanently deleted.

[comex]

The "additional work-related emails" referred to in that statement are the "thousands" the FBI did, in fact, recover; that's how they knew they were work-related.

[DoofusOfDeath]

Agreed - two very different things.

HRC risked giving away the identities of clandestine agents.

Snowden proved that some of them committed war crimes, and that the NSA and CIA routinely betray our trust.

[pastProlog]

> classified documents and gave them to foreign journalists

What the "classified documents" said were that the government is secretly violating the constitutional "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures". Innocent citizens are routinely having their e-mails and phone calls watched, and recorded in archives permanently.

The "classified information" you keep referring to is that the government is violating its own constitution.

[Pinckney]

The more apt comparison, IMHO, is John Deutch, who did virtually the same thing, but was pardoned by Bill Clinton before his plea deal could be filed.

[dlitz]

Foreign journalists? Glenn Greenwald and Laura Poitras are both American.

[adrenalinelol]

Leaking classified material was sacrilege in Washington... Until someone of privilege (HRC) did it... Now the the obvious hypocrisy has been exposed, we can stop pretending there were intractable operational risks created be Edward Snowden and pardon him. Before the leaks, anyone who claimed we were turning into a police state was branded a conspiracy theorist, now it's part of the public record. Had it remained in the shadows it'd be a far scarier monstrosity than we have today.

[jonknee]

> Leaking classified material was sacrilege in Washington

Umm, more like it was standard operating procedure. How else do you think all the anonymously sourced articles in the NYT/WaPo/WSJ happen?

[adrenalinelol]

When related to the NSA/CIA collecting nearly every once of data a citizen dispense online? No, that wasn't standard procedure.

[jonknee]

Bush Lets U.S. Spy on Callers Without Courts Dec 16, 2005

http://www.nytimes.com/2005/12/16/politics/bush-lets-us-spy-...

> Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.

[adrenalinelol]

# articles related to it prior vs. after Snowden, after Snowden would be an order of magnitude more per capita.

[tasty_freeze]

This is not to excuse Clinton's email policy.

Let's agree that Clinton ran a private email server and it had a high risk of being compromised.

Let's agree that Clinton turned over a subset of the emails when it was requested, under the grounds that those were personal emails which aren't related to her actions as secretary of state. Let's agree that there is no clear boundary where to draw that line, so people will argue in good faith that the line was drawn in the wrong spot.

Now, let's imagine that instead of the above scenario, not just Clinton but most of the white house positions including the secretary of state used the DNC email server explicitly to avoid freedom of information act requests. Imagine that when this came to light, the Obama administration claimed to have lost over 5 million emails. When asked to produce the backup tapes, they said, shoot! The backup tapes are corrupted.

Do you agree that that scenario would have been far worse? And how many investigations and calls for impeachment would have happened by now? How many special committees would have called?

Well, the above isn't a hypothetical. The previous administration did exactly what I described, except that they used the RNC mail server of course. All the people who are outraged (outraged!) and think that Clinton committed what amounts to an act of treason didn't say a peep back then. And unlike the perpetual train of special investigations that are brandished for political ends, that whole affair didn't result garner even one tenth the amount of press Hillary has.

Let me be clear: I'm not saying what Hillary did was OK. I'm saying that if the previous administration did something far worse and nobody got body slammed for it, why would you be surprised that Clinton got off the hook too?

You should also read the juicy contents of the Secretary of State's emails. The vast majority were of the form "Can you contact so and so and see if we can put off the meeting until later." There are very few truly top secret things that crossed her desk.

[tanderson92]

Many nonpartisans as well as leftist Democrats (ordinary liberals are too much of institutionalist authoritarians to be too outraged) criticized both of these instances of direct evasion of transparency. The Bush administration was a disaster on transparency. I find it shameful that that is where the bar is set. It's embarrassing not just politically but institutionally.

Elected Republicans, of course, acted in bad faith, as you mention. Make no mistake, however, there are many who find the lapses of both administrations disturbing for a government "of the people, by the people, and for the people".

[tasty_freeze]

I don't disagree. abraca's statement that he was surprised that Hillary got let off the hook and thus Snowden should too. In a nutshell, my reply to him was that worse sins of the same nature have gone unpunished, so it isn't the least bit surprising that Clinton wasn't charged with a crime.

[slg]

Snowden and Clinton are apples and oranges. There is a reason why we don't have the same punishments for if someone is at fault in a car accident that kills someone versus if they purchase a gun and immediately use it to kill someone.

[dredmorbius]

While there's a point buried in there, it's poorly made and analogised.

You've got two people taking deliberate actions which could expose or at least violate handling rules for classified information. One was seeking to retain it personally persuant to her job, the other was exposing it to the world, under the guidance of his conscience and loyalty to his Constitution.

Both broke rules.

How they did so, to what ends, and to what effect are hugely different.

Drawing comparisons between Snowden and Clinton as GP did is far too muddled to really be useful, IMO.

(Disclaimers: I think Snowden should be a national hero to Americans, and is a global hero. Clinton rather grudgingly gets my nod to occupy the Oval Office, though given current contenders, that's very much a lesser evil option, with an enormous gulf between her and the greater evil not tempering the fact that she's damaged goods and quite probably not the leadership the US needs at present. She seems to be what they'll get. I rather hope that she does, actually. Trump would be a disaster for the planet, and any plausible GOP alternate would be nearly as bad. Not that the GOP have been constrained by plausibility of late.)

[morganvachon]

Are you seriously comparing his actions to first degree murder? I think you're a bit biased here.

[umanwizard]

It's an analogy, not a comparison. Do you seriously not understand the difference?

[morganvachon]

I understand the difference, just as I understand that it's a sneaky way to perform an ad hominem attack. You could have chosen any two contrasting actions, but you specifically chose violent murder as an analogy to what he did. Perhaps you did it subconsciously, but, well...there it is.

[comex]

Believing there to be a meaningful difference between being somewhat careless with information on one hand, and intentionally leaking it to the press on the other, is not playing a "political game". You can believe Snowden to be a hero or a traitor - I lean towards the former, personally - but his behavior was in a completely different category from Clinton's.

[rplst8]

Yes. One was courageous. The other was cowardly.

[pbreit]

If Hillary's emails got out I think we almost certainly would have found out by now.

Also, if we're talking Snowden, you could make the argument Hillary's emails were more secure since they weren't accessible to...Snowden.

[massysett]

The Russians will wait until the right moment to leak them. Maybe a week or two before the election.

[pbreit]

What would they get out of that? Not a Trump presidency.

[tenpies]

Trump and Putin actually seem to have a very good relationship and have spoken positively about each other. Trump winning could legitimately foster a new era of better relationships with Russia.

Hillary would probably be the opposite.

[dredmorbius]

What Putin says, largely for domestic consumption, and what he truly feels, are, I quite strongly suspect, rather different things.

Adam Curtis has touched on this, in "Bitter Lake" IIRC. Recommended. (BBC video documentary -- this bit comes early on.)

[jeffdavis]

An interesting perspective, but I think the "Hillary Defense" is only available to a select few.

[pdkl95]

This isn't about a defense. The problem is that those "select few" are supposed to be subject to the same laws as the rest of us.

When we see clear evidence that "rule of law" no longer applies, why should anybody respect the law?

[themartorana]

True. Petraeus and Clapper pretty much sealed that deal. I mean, we already knew those with money and power were treated differently, it just happened in the dark, usually.

The financial collapse, Clapper lying to Congress, and the Petraeus scandal (and subsequent zero punishment for any of the three) made it clear public knowledge and brought it out of the shadows into the light of day.

[hiram112]

Petraeus received a $100k fine. Not a huge deal for someone who made a lot more on his biography, which was the cause of the issue, but still not zero punishment.

[2close4comfort]

What about Petraeus. For Snowden's acts to be still considered criminal is just hypocritical.

[adrenalinelol]

He should be in jail for the rest of his life (look at Chelsea Manning's sentence, if we are going to be consistent), but he was given a slap on the wrist: CIA directory trading secrets to his mistress? It sounds like a movie script, but now it's the public record.

[ajmurmann]

What makes the difference even more stunning is that Snowden and Manning released information because they thought it was the right thing to do. Patreus did it knowing it was the wrong thing.

[jonknee]

> Hillary put us in more danger than Snowden

How so? (I would wager neither put us in danger.)

[adamnemecek]

If nothing else she took bribes in exchange for weapons sold to Middle East. This destabilizes the region even more (if that's possible).

Edit: you can down vote me all you want, you know it's true http://www.ibtimes.com/clinton-foundation-donors-got-weapons...

[jonknee]

I thought we were talking about her handling of classified information?

Regardless, for better or worse Saudi Arabia is a US ally and we have a pretty long track record of selling arms to our allies. We sold the Saudis arms before HRC was in the State Department and we have continued to sell them arms after she left.

[adamnemecek]

We are talking about her character. She does not fundamentally care about anyone's interests besides her own.

SA is an US ally maybe on paper. Remind me, from what country were most of the 9/11 hijackers? Do you think that this is a coincidence?

[geofft]

This conspiracy theory is getting pretty involved. Let me see if I can keep track:

* Although Saudi Arabia is widely believed to be a US ally, and the US government reports that they are, it is well-known among the cabinet that they are not.

* It is further well-known among the cabinet that they are such bad allies that they as a state were responsible for the greatest act of war on US soil since Pearl Harbor.

* Hillary Clinton is so corrupt that she will use her office to sell warplanes to a country whose relationship with the US is in truth the same as Japan's in the early 1940s, and in appearance a friend.

* Somehow, despite being known to Clinton, this information is lost on the previous and future Secretaries of State, who sell warplanes to this country because they are deceived by the pretense that they are allies.

* However, it is not lost on the general public, because you have figured it out.

* Clinton entered office with the intention to be corrupt, and chose to use a private email server to hide all of her emails from the rest of the government.

* As part of that, she told the rest of her government to email her private email server, and never set up a state.gov email address.

* However, she failed to remember that records of donations to the Clinton Foundation were public, and records of who the US sells military aircraft to are also public, thereby allowing a newspaper to notice the deals via public data and not via her email records.

So, we have to imagine not only that she's corrupt, but that she is a traitor of the highest order (she's supporting a country that's secretly at war with her own) and also a complete idiot, and also that the previous and next Secretaries of State are complete idiots in a different way (but in the same way as each other). That's a much larger charge than "she has bad character".

[adamnemecek]

> Although Saudi Arabia is widely believed to be a US ally, and the US government reports that they are, it is well-known among the cabinet that they are not.

Do you know what Wahhabism is? Do you know who's the biggest financial supporter of Wahhabism in the Middle East?

> It is further well-known among the cabinet that they are such bad allies that they as a state were responsible for the greatest act of war on US soil since Pearl Harbor.

Responsibility takes many forms. But yes, they are at least partially responsible. Google around.

> Hillary Clinton is so corrupt that she will use her office to sell warplanes to a country whose relationship with the US is in truth the same as Japan's in the early 1940s, and in appearance a friend.

It's the same mind set as say BP.

> Somehow, despite being known to Clinton, this information is lost on the previous and future Secretaries of State, who sell warplanes to this country because they are deceived by the pretense that they are allies.

The situation wasn't always like this. Furthermore, if you can provide some data on what weapons were exactly sold under the previous heads of state, that would be useful.

* However, it is not lost on the general public, because you have figured it out.

Google around. All of the things I'm saying were reported in reputable news sources.

* Clinton entered office with the intention to be corrupt, and chose to use a private email server to hide all of her emails from the rest of the government.

Well, she's been in politics for a while and she wasn't exactly not corrupt for most of her career so she didn't "enter" the office with the intention. She was always corrupt.

* As part of that, she told the rest of her government to email her private email server, and never set up a state.gov email address.

Idk how this is related? The rest of her gov't would use whatever email she provided them with?

* However, she failed to remember that records of donations to the Clinton Foundation were public, and records of who the US sells military aircraft to are also public, thereby allowing a newspaper to notice the deals via public data and not via her email records.

No, she's counting on the public not paying attention. Same as with Wall street speeches. Has she released those yet btw? It's a rhetorical question.

> So, we have to imagine not only that she's corrupt, but that she is a traitor of the highest order (she's supporting a country that's secretly at war with her own) and also a complete idiot, and also that the previous and next Secretaries of State are complete idiots in a different way (but in the same way as each other). That's a much larger charge than "she has bad character".

I think that traitor's motivation is causing damage. Her motivation is self-interest and she doesn't care about the means.

[sachingulaya]

I can't comment on Hillary's character other than she seemed cold when I met her. I do have to say though that oftentimes there are larger strategic decisions to be made. "The united states has no permanent allies or enemies--only interests."

[milesskorpen]

I don't think there's much evidence that these fighter jets have destabilized the region further (there's plenty of instability as is) and the US has a very long history of providing advanced weapons to the Saudis — well before HRC came along. I don't think it is at all obvious that donations + arms deal = bribes for arms deal.

[adamnemecek]

> the US has a very long history of providing advanced weapons to the Saudis

Well it was not always obvious that SA isn't exactly a US ally. On the contrary actually.

> I don't think it is at all obvious that donations + arms deal = bribes for arms deal.

So why exactly did they do it? There's a time table somewhere online which compares the dates of donation with dates of approval. Care to guess how quickly these things happened after one another?

[jonknee]

> So why exactly did they do it? There's a time table somewhere online which compares the dates of donation with dates of approval. Care to guess how quickly these things happened after one another?

Because we don't have many friends in the Middle East and we desperately want some help combatting IS. It's not rocket science. We have sold arms to Saudi Arabia for generations. For example, Reagan approved a large deal in the early 1980s:

https://en.wikipedia.org/wiki/US%E2%80%93Saudi_Arabia_AWACS_...

[adamnemecek]

Why the donations then? Why is SA not really doing much about ISIS then?

Also lol at bringing up Reagan. Does Iran Contra right a bell?

[dredmorbius]

Who would think that politics and international relations might be ... complicated.

Saudi Arabia, along with much the rest of the Middle East, owes itself to a chain of events which I'll arbitrarily start with the Roman empire, its split into east and west, the fall of first the West (410 AD), the fall of the Eastern Roman Empire, a/k/a Byzantine Empire (~330 BC - 1453 BC), when it was taken by the Ottoman Empire (1299 - 1923), whose region of control since 1683 included most of what little of the Arabian Peninsula supported what little population it had.

The US helped Saudi Arabia emerge in the first place (though some guy named Lawrence had more to do with that), the Saudis not particularly caring for the British and finding them too near (an old and perhaps wise Arab doctrine encourages making distant allies -- they're less likely to cause trouble).

Oil was found and developed beginning in the 1930s, largely with American assistance.

1945 saw the Quincy Agreement, between the US and KSA, establishing a long-term strategic alliance. The US needed oil, the house of Saud needed help developing that, money, and protection from other unhappy families (each unhappy in its own Tolstoian way). A fact which didn't preclude multiple attempts at oil embargoes against the US and Europe, including particularly over the Suez Crisis (1956) and Six Day War (1967), but coming to a head after the Yom Kippur War (1973), by which point the US had experienced peak oil extraction and various Arab states had more fully realised their pricing power.

KSA tone changed quite markedly after a visit from US finance officials in 1974, and generally tightened with disruptions in Iran, Iraq, and internally with various sects of islam.

The relationship, in a word, is distinctly complex. A mutual dependency, with fairly strong mutual levels of unhappiness at the dependency.

By the 1950s, the US was beginning to import Saudi Oil, and

[geofft]

You're not being downvoted based on the accuracy of your comment, you're being downvoted based on the relevance.

If she took bribes in exchange for weapons, sure, that's a crime, but that's a different crime from improper handling of classified material, and has absolutely nothing to do with the conversation we're having, which is about Snowden, not Clinton. Stay on topic; there are already enough internet fora for non-directed ranting about which politicians people hate more, and HN isn't and should not become one of them.

[adamnemecek]

Well odds are she setup the server to hide her tracks of her wrong doings.

[geofft]

Hm. That's not a theory that's ever occurred to me, because I can sympathize with setting up a server because your employer's IT department sucks, and that's a simpler hypothesis. For instance, if she really wanted to hide her wrongdoings, why not get a state.gov email account for most stuff, and use clintonemail.com for the sketchy stuff? Or why not just have conversations about the sketchy stuff over the phone? Every entry-level employee at a private-sector company that says they're monitoring email knows exactly how to have an off-the-record conversation if they need to. You can't tell me the United States Secretary of State, whose job literally involves the most secret things in the world, doesn't know how to have a private conversation.

There's also the fact that she kept using her BlackBerry in 2008 despite being warned that even the NSA couldn't solve the security issues (which were about unauthorized parties breaking in, not about emails escaping government record). That's consistent with her wanting devices that were convenient and worked, and pretty inconsistent with her wanting to keep emails away from government archiving: she invited the cooperation of the NSA in solving her problem (until they said they couldn't), which she wouldn't want to do if the purpose of her using the BlackBerry was to hide emails.

So - when you say "odds are", what's the evidence that causes you to favor that more complex hypothesis?

[adamnemecek]

The fact that no one in the history of the US government has gone as far to cover up their tracks.

[nononosisisi]

Actually no, it's not.

[adamnemecek]

I'll take your word for it then chief.

[tptacek]

So far as we know, HRC didn't expose any information. During the time HRC was using her own email server, the official email server she was supposed to use was comprehensively owned up by Russian hackers. It is unlikely but plausible that her emails were safer on her servers.

The reason Justice didn't prosecute HRC was that it was too difficult for them to pursue a narrative around "intent". Comey at FBI wasn't making that part up: the previous cases on the record for negligent, rather than deliberate, exposure were not helpful to the prosecution: for one thing, in every case on the record, the line between "negligence" and "deliberation" was pretty vague --- each prosecuted person had deliberately done things with specific, known pieces of classified information that put them at risk. For another, in each of those cases, classified documents actually leaked (usually to the person who reported them). And finally, in most of the cases, the accused were not civilians and not part of the Intelligence Community.

Three things to know about classified information in the government:

1. Ordinary people who take jobs involving classified information are taught that the penalties for mishandling it are grave, and almost invariably involve prison time.

2. That training appears to be a lie, intended to scare people into being diligent about classified information.

3. There is a long history of leniency for people outside the intelligence community who mishandle classified information. The expectation seems to be that if you take 10 people from State and search their Hotmail accounts, you're going to find stuff.

I don't believe HRC received special treatment. If she had been at State when this story broke, and had been an ordinary employee, she'd have been fired. Termination is not prosecution. At any rate: she can't be fired now: she's already gone.

[mikecb]

Best walkthrough I've seen of the intent element from a JAG:

http://warontherocks.com/2016/07/why-intent-not-gross-neglig...

[tptacek]

This is a really good piece. Thanks!

[xenadu02]

Bypassing idiotic and/or incompetent corporate IT departments is an everyday activity for half the people who post in HN. I haven't seen any proof that her email server was hacked and the two "classified" emails Comey spoke about were mis-categorized and not actually sensitive at all. Just like the Benghazi nonsense I have yet to see any actual proof, just a lot of political theater.

This is and was a transparent attempt to squash Hillary's run for president. That's all. The tone of your post betrays your own naked political bias as well.

Hillary's actual decisions while SoS have a far greater effect on the US as a country than everything related to her email put together.

There are plenty of legitimate things to criticize her on, we don't need to make up nonsense. It's OT anyway.

[etjossem]

Agreed. Read the reports from the investiation: Benghazi and the emails are the new Swiftboat [1], and it's particularly telling that they don't have anything better to talk about. Move along.

[1] https://en.wikipedia.org/wiki/Swiftboat

[rayiner]

Hilary may have gotten special treatment. I'm not convinced that's a bad thing. There are serious Constitutional concerns about the sitting administration prosecuting the presumptive next President. It's not a precedent we want to set.

[adrenalinelol]

Special treatment IS a bad thing. Running for president doesn't exonerate you from a felony.

[rayiner]

Prosecution by the executive of successors (or other branches of government) raises an existential threat to the republic. It's far more important to ensure succession cannot be questioned than it is to punish every felony.

[r00fus]

Seriously, while I entertain the possibility of voting for Hillary, I still think the fact she's running for President shouldn't exempt her from the law.

Of course, that brings up the question - was she really breaking the law? Were others before her doing the same?

[rayiner]

The problem is that the executive's power to prosecute can be abused to undermine democracy when it's targeted Presidential candidates. Politically motivated prosecution is not unheard of. That's not the risk in this specific case, but that's not a road I want to start walking down.

[tomjen3]

If she had been prosecuted, she would be taken out of the race, which would mean that the democrats would have lost their nominee, which means that Trump would win but not because he was really elected.

Can you imagine the nightmare that would have been politically? Hrc should have been prosecuted a long time ago.

[dragonwriter]

Being prosecuted wouldn't disqualify her legally. Still, if it happened before the convention, it might have resulted in her not getting the nomination (by enough superdelegates shifting to Derby her a majority of delegates), but that would just mean someone else, probably Sanders, would get the nomination.