By Jim Edsall
On Monday, September 6, 2016, CNN released a national poll showing Donald Trump leading Hillary Clinton 45% to 43%, confirming that her post-convention bounce has evaporated. The poll’s internal numbers show Trump’s support increasing among Republicans as he stays on message and avoids making negative news. But, Trump’s most significant gains have been in the category of who is more “honest and trustworthy.” Trump now rates at 50%, while Hillary Clinton has fallen to 35%. This parallels a devastating New York Times/CBS News poll from July 2016 showing that 67% of Americans believe Hillary Clinton is not honest and trustworthy. Her numbers are historically low for one main reason — people are reacting to the findings by the FBI that Hillary Clinton placed national security information on a private email system and then was not honest about it. The fact that she was not indicted is not seen as exoneration. It is viewed as special treatment for a powerful political insider. And, new information is being released almost daily regarding the content of the emails, which show that wealthy donors to the Clinton Foundation received priority access to the Clinton State Department.
Private Email Server
Hillary Clinton served as Secretary of State for the first four years of Barack Obama’s presidency. During that time, she used a personal email address on a private email server kept in the basement at her home in Chappaqua, NY. She refused to use a government email server and .gov email address despite “very specific guidance” from the White House. She insisted on using her private Blackberry for all email communications, even while overseas in nations potentially hostile to the United States.
The existence of her private email server was only discovered when the State Department reported it in 2014 to the House Select Committee investigating the September 11, 2012 terrorist attack on the U.S. Embassy in Benghazi, Libya. She at first denied having sent or received any emails that were classified. Then she changed her story, contending that none of the emails she sent or received were “marked classified.” She had deleted nearly 32,000 of her emails before turning over her private server to the FBI – roughly half of all emails she had sent and received — claiming they were all personal in nature, regarding yoga classes, vacations, and her daughter’s wedding.
The FBI conducted an investigation to determine whether her use of a private email system, and her deletion of emails, were violations of federal law. During that investigation, Clinton claimed the FBI was merely conducting a “security inquiry.” FBI Director James Comey countered saying, “We’re conducting an investigation. That’s the bureau’s business. That’s what we do.”
Upon completing the investigation, Comey announced the following findings:
- Hillary Clinton had been “extremely careless” in using a private email address and server;
- She had used questionable judgment in using a private email system;
- Several thousand work-related emails had not been turned over to the State Department, despite her claims that all such emails had been submitted;
- At least 110 emails contained classified information at the time she sent or received them;
- A small number of her emails sent and received on the private system were marked classified;
- As a government employee entrusted with classified information, she should have been able to recognize when email content was classified, with or without markings;
- Hostile foreign governments likely gained access to her email account; and
- She would be subject to disciplinary action if she were still a government employee.
On July 7, 2016, at a subsequent hearing before Congress, Director Comey confirmed that Hillary Clinton had not been honest with the American people about the classified content of emails on her private email server. Here is the transcript of Comey’s exchange with Congressman Trey Gowdy:
Gowdy: Good morning, Director Comey. Secretary Clinton said she never sent or received any classified information over her private e-mail, was that true?
Comey: Our investigation found that there was classified information sent.
Gowdy: It was not true?
Comey: That’s what I said.
Gowdy: OK. Well, I’m looking for a shorter answer so you and I are not here quite as long. Secretary Clinton said there was nothing marked classified on her e-mails sent or received. Was that true?
Comey: That’s not true. There were a small number of portion markings on I think three of the documents.
Gowdy: Secretary Clinton said “I did not e-mail any classified information to anyone on my e-mail there was no classified material.” That is true?
Comey: There was classified information emailed.
Gowdy: Secretary Clinton said she had used one device, was that true?
Comey: She used multiple devices during the four years of her term as Secretary of State.
Gowdy: Secretary Clinton said all work related emails were returned to the State Department. Was that true?
Comey: No. We found work related emails, thousands, that were not returned.
Gowdy: Secretary Clinton said neither she nor anyone else deleted work related emails from her personal account.
Comey: That’s a harder one to answer. We found traces of work related emails in — on devices or in space. Whether they were deleted or when a server was changed out something happened to them, there’s no doubt that the work related emails that were removed electronically from the email system.
Gowdy: Secretary Clinton said her lawyers read every one of the emails and were overly inclusive. Did her lawyers read the email content individually?
Gowdy: Well, in the interest of time and because I have a plane to catch tomorrow afternoon, I’m not going to go through any more of the false statements but I am going to ask you to put on your old hat. False exculpatory statements are used for what?
Comey: Well, either for a substantive prosecution or evidence of intent in a criminal prosecution.
Gowdy: Exactly. Intent and consciousness of guilt, right?
Comey: That is right.
Unauthorized Retention and Deletion of Classified Emails
Section 1924 of Title 18 of the U.S. Code, “Unauthorized retention and removal of classified documents or material,” states as follows:
“Whoever, being an officer … of the United States, and, by virtue of his office … becomes possessed of documents or materials containing classified information of the United States, knowingly … retain[s] such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both.”
Hillary Clinton stored classified emails on an unauthorized private email server in her basement. The private tech company she hired, Platte River Networks, kept the backup server in their office bathroom.
Section 2071 of Title 18, “Concealment, removal or mutilation generally,” states as follows:
“Whoever, having the custody of any such record [or]… document … willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States.”
If Hillary Clinton knowingly deleted or authorized deletion of classified emails this disqualifies her from holding any federal office, including the presidency. Her tech company, Platte River Networks, deleted the emails even after the Congressional committee investigating Benghazi had subpoenaed them.
Despite all of the FBI’s findings, Director James Comey chose not to recommend indictment of Hillary Clinton on criminal charges, saying he did not find “intentional misconduct or indications of disloyalty to the United States or efforts to obstruct justice.” However, intent is not required for criminal liability in the mishandling of government records. Section 793 of Title 18, “Gathering, transmitting or losing defense information,” states as follows:
“Whoever, being entrusted with information relating to the national defense … through gross negligence permits the same to be removed from its proper place of custody … or destroyed shall be fined under this title or imprisoned not more than ten years, or both.”
The legal definition of gross negligence is “extreme carelessness.” Director Comey declared that Hillary Clinton had been extremely careless in using a private email server and Blackberry, risking exposure of classified information to our nation’s enemies. This qualifies as gross negligence, meeting the requirement for indictment.
Not being indicted does not make her innocent. In fact, by using a private server, and by deleting tens of thousands of emails, Hillary Clinton appears to have violated at least three federal laws including the Federal Records Act, and the Freedom of Information Act (FOIA), which require government employees to preserve a complete record of all correspondences involving official business while in government service.
Comey opted against indictment just days after his superior at the Department of Justice, Attorney General Loretta Lynch, met with Hillary Clinton’s husband, former President Bill Clinton, on her plane in Phoenix, AZ. When this meeting was discovered, Lynch admitted that it had “cast a shadow” over the investigation, but claimed that the meeting was merely to discuss personal matters such as golf and grandchildren. Borrowing words once used by Ms. Clinton, believing that requires “the willing suspension of disbelief.”
On August 16, 2016, the FBI sent its investigative materials, including notes from its interview of Secretary Clinton, to Congress to examine for perjury. Those materials were released to the public on September 2, 2016. That day, the Wall Street Journal reported that during her FBI interview Clinton denied knowing that the “C” marking on government documents stands for “classified.” She claimed she was unable to locate 13 Blackberry devices that she had used in government service. She admitted that she had been warned that her private system could easily be hacked but was not concerned because her husband’s private system had “never been breached,” when in fact it had been hacked in 2013. And, despite being advised by State Department Executive Secretary Steven Mill and former Secretary of State Colin Powell that her private email would be part of her official records that must be preserved, she deleted thousands of work related emails.
On the Campaign Trail
On the campaign trail, Hillary Clinton has continued to claim that she did not send or receive any emails that were classified, or marked classified, despite this being directly contradicted by the FBI. On the July 31, 2016 edition of Fox News Sunday, Clinton bizarrely claimed that Director Comey had called her public statements about her emails “truthful.” PolitFact.com rated this statement “pants on fire”, and the Washington Post rated it “four Pinocchios”, their worst scores. She later said that she had “short circuited” in giving that answer, but then promptly began making the same false claims again.
The Clinton Foundation and the State Department
Prior to her term as Secretary of State, Hillary Clinton and her husband, Bill Clinton established the Clinton Foundation and Clinton Global Initiative, a charitable organization which the Washington Post recently called a “$2 billion global empire,” addressing crop yields in Africa, earthquake relief in Haiti, and the cost of AIDS drugs worldwide. While she served as Secretary of State, Middle Eastern nations donated millions of dollars to the Clinton Foundation. Saudi Arabia alone contributed nearly $25 million. In January 2013, a Russian company, Uranium One, gained the rights to 20% of U.S. uranium production after its founders gave over $2 million in contributions to the Clinton Foundation. Just prior to that deal being approved by the State Department, Bill Clinton was paid $500,000.00 for a speech to a Russian investment bank that was promoting Uranium One stock. In fact, Bill Clinton has received over $26 million in speaking fees from countries and companies that have donated to the Clinton Foundation.
On August 9, 2016, forty-four emails that Hillary Clinton had not turned over to the State Department were released by a federal court to a citizens’ group, Judicial Watch, under a FOIA request. Those emails obtained from the records of Secretary Clinton’s assistants at the State Department, Cheryl Mills and Huma Abedin, show that Mills and Abedin agreed to assist Clinton Foundation donor Gilbert Chagoury, a Lebanese-Nigerian billionaire, with contacting the U.S. Ambassador to Lebanon in order to expedite a business deal. They also assisted an unnamed Clinton Foundation donor in the process of seeking a government job.
14,900 additional documents and emails that Secretary Clinton had not turned over to the State Department were released to Judicial Watch on August 22, 2016. These reveal that Clinton Foundation executive Doug Band communicated frequently with Mills and Abedin, arranging meetings between Secretary Clinton and Clinton Foundation donors, including the crown prince of Bahrain who had contributed $32 million. In fact, more than half of all non-government individuals – 85 of 154 — who received personal meetings with Hillary Clinton while she was Secretary of State had made or pledged financial contributions to the Clinton Foundation.
This has all the appearances of “pay for play”, the purchase and sale of priority access. While this may not be illegal, it is far from ethical. Wealthy donors obtained greater access to government officials simply because they could pay for it.
The overlap of Clinton Foundation and State Department business created a dangerous conflict of interest, giving foreign governments and other financial contributors a degree of influence that potentially compromised America’s national interests. It also violated a 2009 agreement between Hillary Clinton and the Obama administration, which required the Clinton Foundation not to accept any contributions from foreign governments during her tenure as Secretary of State.
The purpose of the Freedom of Information Act (FOIA) is to allow citizens to examine the communications of government officials, and determine whether their actions are in our nation’s best interests, or their own. Thanks to FOIA, the interaction between Secretary Clinton, her State Department staff, and Clinton Foundation donors is increasingly coming to light.
The Trustworthiness Question — Wall Street
Since completing her term as Secretary of State, Hillary Clinton has received hundreds of thousands of dollars for speeches given to Wall Street banks and securities firms. She was paid $225,000.00 by Goldman Sachs for one 20-minute speech. She has refused to release the transcripts of those speeches. People on both sides of the political spectrum are concerned about the degree of influence that has been secured by those special interests.
The Trustworthiness Question — Trans-Pacific Partnership
Hillary Clinton issued 45 public statements in support of the Trans-Pacific Partnership (TPP) — a trade deal that would compromise United States sovereignty and shift thousands of jobs overseas — before reversing her position, which she did only after being criticized by Bernie Sanders and Donald Trump. She now claims to oppose it. It remains to be seen whether American workers will trust her not to reverse position again.
The Honesty Question — Benghazi
On September 11, 2012, the U.S. Embassy in Benghazi, Libya, was attacked by terrorists. Four Americans were killed including Ambassador Chris Stevens, whose requests for increased security forces had repeatedly been denied. While the attack was still underway, the State Department released an official communique stating that the attack was spontaneous and had been inspired by an anti-Islamic internet video. However, on the night of the attack Hillary Clinton emailed her daughter, Chelsea, saying that embassy had been attacked by an “al-Qaeda like group.” Within 24 hours of the attack, she had told the President of Libya and the Egyptian Prime Minister that a terrorist group, Ansar al-Sharia, had claimed responsibility. According to the parents of Sean Smith and Tyrone Woods, three days later, when their sons’ bodies were returned to the United States, Hillary Clinton told them at Joint Base Andrews that the internet video was to blame, despite her knowledge to the contrary. Clinton justified this before Congress, saying “some people were still blaming the video.” Yes, cynically some still were — U.S. Ambassador to the United Nations Susan Rice, Deputy National Security Advisor Ben Rhodes, and other members of the Obama Administration, who, like Secretary Clinton, were trying to preserve the narrative that “al Qaeda was on the run,” that Libya was stable after the ouster of Muammar Qaddafi, and that the Clinton State Department had not carelessly risked the lives of the Americans at Benghazi just two months before the 2012 presidential election.
Bill Clinton’s Accusers
At least four women have alleged that former President Bill Clinton, sexually abused them, and that Hillary Clinton responded by attempting to destroy their reputations. Paula Jones claimed that Bill Clinton had exposed himself to her, and was awarded a settlement of $850,000.00. At trial, he denied under oath having sexual relations with Monica Lewinski, a White House intern, until she produced the blue dress soiled with his semen. He was then convicted of perjury for lying under oath. Kathleen Willey claims that he repeatedly pressured her to have sex with him, kissing her against her will, despite her resisting because she was married. Juanita Broderick claims that he raped her twice. When Hillary found out about the accusers, according to Carl Bernstein of the Washington Post, she coordinated a group of surrogates to stomp out the “bimbo eruptions.” Bill Clinton’s lead campaign strategist, James Carville, said of the accusers, “If you drag a dollar bill through a trailer park, you never know what you’ll find.” Hillary declared that the sexual harassment claims were part of a “vast right wing conspiracy,” until Monica Lewinsky produced the infamous blue dress. She recently declared that all women who allege that they have been victims of sexual abuse “have a right to be believed.” Apparently, she only means those who don’t threaten her husband’s political career, or hers.
The Constitution makes national security the president’s first priority, with Article 2, Section 2 designating the president the commander in chief of the armed forces. The people must be able to trust the president to prioritize their safety.
The president is also head of the Department of Justice and the FBI, serving as the nation’s chief law enforcement officer. The people must be able to trust the president to faithfully enforce, and obey, the laws.
Through the FBI investigation, and subsequent email releases, the American people have learned that Hillary Clinton endangered national security by sending, receiving, and storing classified information on an unauthorized private email system, and then deleted much of her email record in apparent violation of federal law.
Many of the emails recovered under the Freedom of Information Act reveal that special access was given to Clinton Foundation contributors while she served as Secretary of State. Her defenders say that she met with thousands of people during her four years as Secretary of State, so her meeting with 85 Clinton Foundation contributors is insignificant. They assert there is smoke but no fire, and that no special favors were granted, only access. However, priority access to the Secretary of State is itself a special favor. It was her job to meet with thousands of domestic and foreign government personnel in order to advance the interests of the United States. It was not her job to provide special access to Clinton Foundation contributors. The fact that the Clinton Foundation has engaged in some charitable work around the world does not lessen the public’s legitimate concerns about influence peddling and corruption.
The latest poll numbers show that the American people want competence and honesty in their public officials, and expect them to uphold the laws and obey them like everyone else. They object when powerful and privileged insiders are allowed to bend the law until it breaks. To-date, the FBI has not held Hillary Clinton to account. The voters have the chance to do so at the ballot box this November.
Banner Elk, NC
September 11, 2016
About the author
Jim Edsall is an attorney in Banner Elk, NC. He graduated cum laude in 1996 from Regent University Law School in Virginia, where he received the Award for Distinguished Academic Achievement in Public Laws as the top student in Constitutional Law, Common Law, International Law, and Legislation, served as class president, and was an editor of the Law Review.
 Black’s Law Dictionary (10th ed. 2014).
 http://www.politifact.com/arizona/statements/2016/jul/11/donald-trump/did-hillary-clinton-take- money-countries-treat-wom/
 See footnote 46