Hillary Clinton’s chief of staff, John Podesta, received an email from an advisor which brought up the phrase “gross negligence” in regards to the FBI’s email investigation before the FBI agent in charge of the probe removed the phrase from her exoneration statement, according to WikiLeaks.
In a March 2016 email from former Bill Clinton Chief of Staff Tina Flournoy to Clinton campaign chairman Podesta’s Gmail account, Flournoy included links to two articles concerning the FBI email investigation; one from the Washington Post which minimized Clinton’s actions, and a legal analysis from retired D.C. attorney Paul Mirengoff in which he suggests Clinton was “grossly negligent or worse” and may be in serious hot water. (h/t Mike)
From Mirengoff in Powerline Blog:
First, let’s again examine the statutory language:
“Whoever, being entrusted with or having lawful possession or control of any document. . .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.”
The only other question I perceive that stands in the way of Clinton having violated Section 793(f) is whether it was through gross negligence that she permitted the information relating to the national defense to to be removed from its proper place of custody or delivered to someone who shouldn’t have gotten it.
It was not ordinary negligence that caused Clinton to permit highly sensitive information to be removed from its proper place and onto Clinton’s private email servers. This strikes me as gross negligence at a minimum. Clinton herself had warned others about the prospect of private email accounts being hacked.
Nor was it ordinary negligence to deliver highly sensitive information to someone lacking a security clearance (in this case, an inveterate gossip). Such imprudence, again, seems grossly negligent or worse. –Powerline Blog
While Mirengoff’s assessment was that Hillary Clinton engaged in grossly negligent behavior, Tina Flournoy did not agree – citing the Washington Post article minimizing Clinton’s actions:
“The argument here would be that Clinton engaged in such “gross negligence” by transferring information she knew or should have known was classified from its “proper place” onto her private server, or by sharing it with someone not authorized to receive it. Yet, as the Supreme Court has said, “gross negligence” is a “nebulous” term. Especially in the criminal context, it would seem to require conduct more like throwing classified materials into a Dumpster than putting them on a private server that presumably had security protections.” –Tina Flournoy to John Podesta (WikiLeaks)
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