Three Data Points Regarding Clinton's Email Server and the Law

"Lady Justice" atop the Old Bailey, carrying the scales of even-handedness and the sword of punishment, should it be needed. Some remember this as Rumpole's old hangout.

by Gaius Publius

I've been writing for weeks that there are two aspects to the Clinton "secret server" issue — the way the server was handled, and the content of the messages it contained. Regarding the way the server was handled, almost everything needed to determine criminal liability is already in the public record and has been for a while.

So here are three data points, just three. They line up perfectly so the main idea is easy to grasp. (Consider this the first in a series, "The Clinton Server Story for Progressives." If events move too quickly, it will be the last, as everyone from Time to the Washington Post will be telling you what's what and you won't need me at all.)

◾ The server's email system was apparently unencrypted for the first two months of use when Clinton was Secretary of State.

This means that email going to and from the server was unencrypted during transmission. Messages were sent and received in plain text. This is the Washington Post from last March (my emphasis):

The server was nothing remarkable, the kind of system often used by small businesses, according to people familiar with its configuration at the end of her tenure. It consisted of two off-the-shelf server computers. Both were equipped with antivirus software. They were linked by cable to a local Internet service provider. A firewall was used as protection against hackers.

Few could have known it, but the email system operated in those first two months without the standard encryption generally used on the Internet to protect communication, according to an independent analysis that Venafi Inc., a cybersecurity firm that specializes in the encryption process, took upon itself to publish on its website after the scandal broke.

Not until March 29, 2009 — two months after Clinton began using it — did the server receive a “digital certificate” that protected communication over the Internet through encryption, according to Venafi’s analysis.

It is unknown whether the system had some other way to encrypt the email traffic at the time. Without encryption — a process that scrambles communication for anyone without the correct key — email, attachments and passwords are transmitted in plain text.

“That means that anyone could have accessed it. Anyone,” Kevin Bocek, vice president of threat intelligence at Venafi, told The Post.

The system had other features that made it vulnerable to talented hackers, including a software program that enabled users to log on directly from the World Wide Web.

Four computer-security specialists interviewed by The Post said that such a system could be made reasonably secure but that it would need constant monitoring by people trained to look for irregularities in the server’s logs.

“For data of this sensitivity . . . we would need at a minimum a small team to do monitoring and hardening,” said Jason Fossen, a computer-security specialist at the SANS Institute, which provides cybersecurity training around the world.

The man Clinton has said maintained and monitored her server was Bryan Pagliano, who had worked as the technology chief for her political action committee and her presidential campaign. It is not clear whether he had any help. Pagliano had also provided computer services to the Clinton family. In 2008, he received more than $5,000 for that work, according to financial disclosure statements he filed with the government.

The Post article is much longer and contains a great deal of information. If this subject interests you, I encourage you to click through.

I hope you noticed the name "Bryan Pagliano" above. He's among the key people the FBI are talking to. In March, Pagliano was granted immunity in exchange for information. Pagliano is also the subject of a Judicial Watch FOIA request, and he's on the Judicial Watch deposition list. (For more on Pagliano, see below.)

Your first takeaway — Unless there was encryption employed by Clinton's private email service that no one knows about, email communications to and from it were readable as plain text. Certainly not deliberately so, but a fact nonetheless.

◾ The above-mentioned Bryan Pagliano has announced he's taking the fifth in his Judicial Watch deposition. He's going to refuse to speak when deposed.

The Hill:

Clinton IT aide to plead Fifth in email case

The man believed to have set up and maintained Hillary Clinton’s private email server will assert his Fifth Amendment rights against self-incrimination and refuse to answer questions as part of an open records lawsuit against the State Department.

Bryan Pagliano will decline to answer questions from Judicial Watch, the conservative legal watchdog group, during a deposition scheduled for Monday, his lawyers wrote in a court filing on Wednesday afternoon.

The move forecloses the possibility that Pagliano would break his months of silence about the server issue, even as scrutiny has intensified on his role.

Pagliano’s lawyers told Judicial Watch more than a week ago that he would not be answering any questions, they claimed in their filing on Wednesday, and asked that it drop its subpoena. The organization refused.

"Taking the fifth" is an admission of guilt of something (who knows what?), but it's an absolute protection from prosecution by evidence from his own mouth. (The ability to "take the fifth," by the way, is important — it's our protection against evidence produced by torture. Still, it's damning, not just of Pagliano, but of that whole crew.)

Your second takeaway — Pagliano thinks he can be prosecuted for something if he speaks about the Clinton email server in his FOIA deposition. Check the first story above to review what he can speak about.

There will perhaps be political consequences from this. Will there be legal consequences? Keep reading.

◾ One of the laws that may have been broken is 18 U.S. Code § 793 - Gathering, transmitting or losing defense information.

Note first that the information listed below doesn't require a formal "classified" designation to be relevant, and second, that "intent" is not necessary to trigger the law's penalties. "Gross negligence" is sufficient. Again, my emphasis below:

(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, 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.

(g) If two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.

Your third takeaway — Unless this law doesn't apply for some other reason, it seems perfectly applicable for the reasons noted above. All sorts of State Department business and communications could be considered "relating to the national defense," including simple travel itineraries of top officials, such as President Obama's.

"Gross negligence" in allowing such documents to be "lost" or "stolen" is, under this law, a criminal act subject to fines, imprisonment, or both. If the server was hacked, broken into, the above law appears to apply.

Was This Law Actually Broken?

Were documents related to the national defense in fact stolen from Clinton's "home-brew" server through negligence? I think that's the piece we don't know. Will we ever find out? That's the other piece we don't know. Still, these data points have been on my mind since I discovered them.

(By the way, the list of laws that may have been broken, not to mention State Department practices and guidelines ignored, is proffered to be long, at least according to the Internet. I've seen a list, and this is just one item on it. It's also the one I find least controvertible, since the meaning of "classified" is a mine field, depending on how each law is written, and this law isn't limited to "classified" material. I don't envy the FBI in sorting through all this.)

I'm not saying Clinton committed a crime; I'm not a lawyer, just a political observer. But as an observer, I do observe these data points, and suspect that they're related. And again, this is all from the public record, and every piece but the middle one has been there, out in the open, for a while.

Stay tuned. This may be nothing or not-nothing. But if it turns into something, you'll at least have heard about it.

GP
  

Republicans Trying To Figure Out How To Expand Their Collapsing Whites-Only Pup Tent

With the GOP continuing to fracture along ideological lines-- just today Mike Huckabee followed Jeb Bush, Jr in endorsing radical right insurgent Marco Rubio against the Republican Establishment's pick, Charlie Crist, in the race for the open US Senate seat-- Republicans are wondering how to persuade voters that the party is on the mend and not some hothouse dominated by right-wing extremists with contempt for mainstream sensibilities.

Republican Party propagandist Tucker Carlson, who became a Fox News consultant last week, thinks the way to turn things around for his floundering party is to start a right-wing version of the Huffington Post. He's calling it The DailyCaller and its purpose will be to make Fox and Hate Talk Radio seem almost mainstream in comparison to the incendiary, hysterical anti-Obama jihad that will be its hallmark. Doesn't sound likely to expand the tent? No one else thinks so either. And isn't David Frum already failing at his attempt to do the same thing?

This morning's CQPolitics reports on another initiative, this one by Republican Party operative Douglas Holtz-Eakin who wants to start another right-wing think tank. Right wing think tanks have been very successful, financially, for the folks that wind up being underwritten by them. Holtz-Eakin says his new one would be modeled on the progressive think tank Center For American Progress. His mission is to keep the base from shrinking any further, to appeal to more diverse groups, and to see if they can find anyone on the right who has any new ideas that might appeal to the mainstream.

“I think there is now pretty widespread recognition that the Republican Party needs to become demographically broader, more welcoming of different ideas,” said Holtz-Eakin, who ran the Congressional Budget Office from 2003 to 2005. “And it’s time to think strategically about how to appeal more broadly outside the South.”

...The irony, of course, is that the Center for American Progress itself was developed as a liberal answer to the Heritage Foundation, the conservative think tank that has been a source of Republican policy ideas for decades. But Holtz-Eakin says established think tanks of the right, like Heritage and the American Enterprise Institute, were “not helpful” during the McCain campaign because they weren’t politically engaged or innovative in their media strategies.

It sounds something like what Eric Cantor, Jeb Bush, Mitt Romney and a bunch of other tired old right-wing politicians tried to launch in a Virginia pizza parlor a few weeks ago, the so-called National Council for a New America. After Rush Limbaugh denounced it, it kind of ground to a halt and disappeared without a trace. But where Cantor and his clique was just regurgitating tired old right-wing talking points in a pizzeria, Holtz-Eakin wants to broaden the Republican message so that it will have some relevance to people who aren't members of whites-only country clubs. Ex-Congressman Tom Davis (R-VA) thinks its hopeless, at least for now, because the base is so far to the right and close to clinically insane, that it isn't open to anything short of domestic terrorism. “I think the grass roots right now is in an ornery mood-- ‘we are who we are.’” And no one wants to get anywhere near to who they are. "Ornery" isn't nearly as descriptive as "ugly."

Holtz-Eakin thinks the way to go is to "apply conservative principles in innovative fashion and develop solutions on issues that haven’t been a priority for Republicans." One of the darlings of his "movement" is clueless and over-hyped Wisconsin reactionary, Paul Ryan who came up with the Republican Party's "innovative and alternative" health care plan. Ryan's plans-- like Ryan's alternative budget of a few months ago-- have met with dersion and scorn from all sides.

The conservative TV pontiffs and their print counterparts, including The Wall Journal editorial page, are saying all hail the free market alternative to the Democrats government takeover of our uniquely American healthcare system. The Republicans are eager to admit that the current system is broken, but reform should not destroy it. After all, for those that can afford it or get unlimited care from the government or their employers, the care is the best in the world.

Republican Congressman Paul Ryan’s “Patients' Choice Act” is a thinly masked rehash of "McCain Healthcare: An Evil Play on Words." Both the Ryan and Senator McCain plans depend on the states, out of the goodness of their hearts, to provide “guaranteed access.” Neither plan actually forces private insurance companies to eliminate medical underwriting, nor provides for enforceable state high risk pools or for a government plan to insure the people a private insurer rejects.

Ryan’s “Patients' Choice Act Q&As” helps us dissect the illusion of guaranteed access. Guaranteed access was never intended to be confused with or imply guaranteed issue. First, consistent with McCain, Ryan would move the tax advantage from employers to employees and individuals. Next, the same type of voluntary insurance exchanges would be regulated at the state level, as would any high risk pools. Each state would act as a laboratory of innovation in cost control and adverse risk redistribution amongst private carriers.

...The Ryan plan actually offers nothing concrete. Just the dream that states might want to reform health insurance on their own. Many decades of experience has already proved Ryan wrong.

Greg Sargent points to another dynamic frustrating the Republicans who are attempting to move away from the Limbaugh-Cheney-Gingrich GOP model of extremism and mindless obstructionism-- the far right's shocking reaction to President Obama's nomination of a respected moderate woman judge to the Supreme Court.

Sonia Sotomayor was nominated only 24 hours ago, but a familiar pattern is already visible: The overheated conservative reaction to the pick is likely to further complicate the GOP’s efforts to shake off its image as intolerant, backward-looking, harshly obstructionist, and captive to extreme elements.

While some Republicans, particularly those who will have to face the voters next year, are starting to get cold feet about the disgusting smear campaign against Sonia Sotomayor, the shriveling GOP base hasn't gotten the new talking points yet and they're marching off to war-- against America. This kind of response from Tom Fitton, head of an extremist Republican Party front group, Judicial Watch, is what makes Americans mistrustful of the GOP.

David Shuster: "What evidence do you have that she would put her feelings and politics above the rule of law?"

Tom Fitton: "Because President Obama chose her."

As Christy Hardin Smith pointed out, "Taaaa daaaaaaaaaah; She was nominated by a Democratic President. Ergo, she must be unacceptable without any factual foundation as to why." That's the GOP mindset and no amount of Paul Ryan budgets without numbers or recycled plans to kill health care reform and no number of pizza parlor media opportunities with Mitt Romney and Jeb Bush will change what Americans have come to see in the Republican Party-- and hear from Rush Limbaugh, Glenn Beck, Ann Coulter and extremist members of Congress like the 3 crazy Jims (Inhofe, Bunning and DeMint) every single day. Watch the GOP mindset in action: