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Scruggs, Vassallo Debate: Could Hillary Clinton Be Prosecuted?

Dickie Scruggs: Hillary Clinton and her predecessors cannot be prosecuted over emails containing retrospectively classified information.

Richard "Dickie" Scruggs
Richard “Dickie” Scruggs

Neither Hillary Clinton, Colin Powell nor Condoleezza Rice could (or should) be prosecuted for privately possessing emails that contain information later determined to be classified. It is a criminal violation only to privately possess information or materials that have already been classified. None of the emails possessed by these recent Secretaries of State were classified when sent or received.

The timing of the classification is the fundamental difference between the case against Gen. David Petraeus and the cases of the Secretaries of State. General Petraeus was prosecuted because he possessed numerous documents that were classified when he took them into his private possession, as his public plea agreement makes clear.

As a practical matter, government could not function in the modern era if officials had to clear every email (whether sending or receiving) through a security censor. Even the decision to retroactively classify the emails in question here is controversial. As former-Secretary Colon Powell said last week: “ ‘What’s the issue?’ They were unclassified at the time, and they are, in my judgment, still unclassified.”

It is a valid debating point, I suppose, whether government officials should be totally prohibited from communicating through private emails or servers. Maybe there should be a blanket prohibition with criminal penalties. But who would go into government service at the cost of such a sweeping loss of privacy? It would require public officials to completely forgo private emails lest some headline-grabbing IG claim—after the fact–that personal emails were actually government secrets.

In my opinion, the current controversy is far more about politics than law or policy. To the Hillary “haters” it doesn’t matter whether she actually broke a law. They simply abhor the thought of her becoming President and want to see her campaign derailed by a prosecution—even if it is Trumped-up. (Get it?)

Using dubious criminal proceedings—instead of the ballot box–to accomplish political goals is dangerous to our democracy. It smacks of Putin’s Russia. And it always results in a payback prosecution when the shoe is on the other foot. Many argue that Ken Starr’s appointment as the White Water Special Prosecutor was a Republican payback for the Special Prosecutors who vexed Presidents Nixon and Reagan. No public official can do his/her job while being hectored by a special prosecutor combing through their lives in search of some fact pattern they can criminalize.

The prosecution of high public officials, in my opinion, should be reserved for egregious and clear-cut misconduct—not dubious offenses manufactured for political motives.

Steve Vassallo: Hillary Clinton could be prosecuted.

Steve Vassallo
Steve Vassallo

The FBI (Federal Bureau of Investigation) is doing exactly what the name implies…investigating. According to Townhall.com, Hillary’s claim that she never sent or received any classified material is now under the microscope. The State Department’s review has discovered more than 1,600 classified emails on her server thus far with another batch outstanding. And what about the 32,000 emails she unilaterally deleted!

Attempting to blame the entire controversy on the issue of retroactive classification is not going to fly in this year. The nonpartisan IC Inspector General has determined that a number of the emails in question were absolutely classified at the time they originated, including top secret and beyond-top-secret intelligence. News organizations have also confirmed that scores of her emails were, in fact, classified at the time. It was her duty and responsibility to protect highly sensitive information, regardless of markings, a responsibility she acknowledged and swore to uphold assuming office.

The comparisons to Condi Rice and Colin Powell rely on a thoroughly bogus equivalency as neither Rice nor Powell set up and used a recklessly unsecure private emails server on which they conducted all of their official business against the rules and regulations that were established in 2005.

The likelihood that her server was penetrated by foreign powers is a strong possibility. And it was recently disclosed that some emails were among the most sensitive level of intelligence in existence, SAP, beyond top secret! Clinton was personally warned about hacking attempts as far back as 2011 which she apparently completely ignored.

Townhall.com continued in summarizing that Clinton’s server is the scandal in a nutshell. The most recent revelation wherein the State Department deemed another seven emails too sensitive to release in any form (even with redactions) bringing this total to 29. Intelligence officials who have seen some of the documents in question say they betray operational intelligence. The question of exhibiting ongoing gross negligence is also under review.

In conclusion, whether she is protected by partisan politics or not from being indicted, her conduct throughout this entire “Watergate-style” controversy has cost her dearly in the quest for the Democratic nomination. The odds this issue will totally disappear by November are one in a million. The Democrats are gambling on a front runner with a cloud holding over her darker than a black hole in outer space. The smart play would be to bring the Vice President in from out of the bullpen now and suspend Hillary’s campaign until the FBI can make its recommendations. Should an indictment be recommended, whether it proceeds or not, the political damage is too severe to handle by spin control.

Dickie Scruggs is one of Oxford’s best-known former attorneys who now expresses his passion for adult education through the GED in a unique state-wide program he has developed, aptly called “Second Chance.” Scruggs is a well known Democrat and anchors the position of the Left in Point/No-Point. He can be reached at DickScruggs@gmail.com.

Steve Vassallo of Oxford is a frequent contributor to HottyToddy.com covering a wide range of subjects. An arch conservative, the popular columnist holds the political position of the Right in Point/No-Point. He can be reached at sovassallo@gmail.com.

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