Yo, What’s Up With Trump and Hillary?

MAGA asks: “why is it the FBI investigates and found nothing for Clinton but not Trump?”

The reason the FBI found different results for the Clinton and Mueller Investigations was because they involved entirely different matters, scopes, and actions. At the urging of the FBI Inspector General, Clinton had a criminal investigation opened into her handling of classified information. This information somehow leaked to the public via the NYT and became an investigation with public concern, which played a role in how the FBI handled the case, given Clinton was a high-profile person at the time.

The two aspects of the criminal investigation were 1) was the law violated and 2) was there proof beyond a reasonable doubt to show criminal intent to violate the law. Lawbreaking due to negligence, sloppiness, and laziness are not prosecuted criminally, according to precedent; the most similar case involved General Petraeus providing classified information to his biographer and lied to law enforcement to cover it up. The general pleaded to one misdemeanor charge of mishandling classified information. In terms of intent, Clinton’s did not nearly approach the same level of evidentiary proof as Petraeus.

This is why the FBI determines no reasonable prosecutor would bring a case. Because of classified information concerning Loretta Lynch which might cause the public to lose faith in her objectivity, information that stood the chance of leaking to the public eventually, Loretta Lynch all but refused herself from the investigation and deferred prosecution decisions to the FBI Director, traditionally the role of the AG.

James Comey articulates this in his book in chapter 10, when he said he wanted to make a decision to indict or not would show FBI independence from the Department of Justice. His decision was to make the announcement about the outcome of the Clinton Investigation. If he had simply announced no charges, he thought people would assume pressure and influence from the Obama administration, especially considering Obama’s public comments concerning Clinton’s mishandling of classified information, mainly his claim that she had not endangered the security of the United States. Mishandling classified information, by definition, risks the security of the US. Comey announced they were not bringing a criminal prosecution against Clinton and were closing the case, but in the interest of transparency he noted she had been extremely careless.

If Clinton has still been a government employee at the time, she probably would have lost her clearance, but she no longer was.

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The problem with your question is it implies the FBI found “nothing” on Clinton. They did find damning information, but no fact pattern that rose to the level of a prosecutable case. This conclusion is similar to Volume 1 of the Mueller Report, where Mueller could not find enough evidence to bring a prosecutable case of conspiracy. Contrary to what the AG and the president’s lawyers have been saying, there was evidence of conspiracy, just not enough evidence to have proof behind a reasonable doubt. On page 2 of Volume One, Mueller notes that “A statement that the investigation did not establish particular facts does not mean there was no evidence of those facts”.

In the investigation into the Trump campaign’s ties to Russia, there was both a criminal investigation and a counterintelligence investigation. The results of the criminal investigation are very narrow and relate only to Mueller’s mandate. Mueller identified crimes committed during the election (GRU and Guccifer2.0), any additional crimes he found during his investigation (Papadopolous/Flynn/Gates/Manafort/Cohen/Stone), and any Trump campaign links to those crimes.

The result of that investigation was:

“Although the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the Campaign expected it would benefit electorally from information stolen and released through Russian efforts, the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”

IMPORTANT NOTE: In the Mueller Report, in order to “establish” a fact, Mueller uses the highest bar of proof, “proof beyond a reasonable doubt”.  This is the standard for criminal investigations. Counterintelligence investigations do not need that level of proof to establish conduct occurred because the goal is actable intelligence, not prosecutions. The results of the counterintelligence investigation are completely unknown and is, apparently, still ongoing.

You may be asking, why was Clinton allowed to delete emails from her private email, isn’t that Obstruction of Justice? The answer is no, because the FBI couldn’t establish Clinton directed her subordinates who was tasked with managing her server to delete her email archive after receiving a Congressional subpoena. Comey said in a July 2016 statement that the FBI investigation “found no evidence that any of the additional work-related emails were intentionally deleted in an effort to conceal them.”

The FBI found no evidence that the emails were deleted deliberately to avoid the subpoena or other requests. Clinton’s team requested for the archives emails to be deleted months before the subpoena came, and emails older than 60 days were approved to be deleted. If the FBI could have established Clinton conspired to avoid a congressional subpoena, that would have completely changed the outcome of the case.  But no such evidence was found.

In a similar manner, many people involved with Trump’s campaign used encrypted methods of communication and deleted conversations.  As Mueller did not establish these actions were taken in order to Obstruct Justice, there was nothing he could do but note that “Given these identified gaps, the Office cannot rule out the possibility that the unavailable information would shed additional light on (or cast in a new light) the events described in the report.”

One might be inclined to say the same about Clinton’s deleted emails, but the same quote would not be applicable because the FBI, after much effort, was able to gain access to the laptops of the lawyers who sorted through and deleted Clinton’s archived emails to inspect them for any evidence of malfeasance; as well, they interviewed the lawyers in question and probed their process for reviewing emails. They found nothing to support a prosecutable case. After Clinton was interviewed, the case was closed, after which it was briefly reopened 9 days prior to the 2016 election.

With regard to Volume 2 of Mueller’s report, the volume concerning Obstruction of Justice, a certain number of factors are at play. I’m going to quote large sections from Mueller’s repot because he can explain his thinking better than I. If anyone wants the locations of any of these quotes, leave a comment and I’ll be happy to provide them.

First, the Justice Department has a long-standing legal opinion (not a law) that a president cannot be indicted. For institutionalists like Mueller who hew to legal norms, this legal opinion served as a barrier he could not cross. The DAG gave Mueller the authority to make the decision on Obstruction, but Mueller defer making a determination.

“This Office accepted [The Office of Legal Counsel]’s legal conclusion for the purpose of exercising prosecutorial jurisdiction. And apart from OLC’s constitutional view, we recognized that a federal criminal accusation against a sitting President would place burdens on the President’s capacity to govern and potentially preempt constitutional processes for addressing presidential misconduct.”

Second, while the OLC opinion concludes that a sitting President may not be prosecuted, it recognizes that a criminal investigation during the President’s term is permissible . The OLC opinion also recognizes that a President does not have immunity after he leaves office. And if individuals other than the President committed an obstruction offense, they may be prosecuted at this time.”

“Given those considerations, the facts known to us, and the strong public interest in safeguarding the integrity of the criminal justice system, [Mueller’s team] conducted a thorough factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available.”

Third, Mueller’s team considered whether they could make prosecution and declination decisions, but determined not to follow a path that would result in a judgement that the president committed crimes.

“The threshold step under the Justice Manual standards is to assess whether a person’s conduct “constitutes a federal offense.” Fairness concerns counseled against potentially reaching that judgment when no charges can be brought.”

^^This indicates the OLC opinion prevented a fair way to bring judgment/accusation against a president. The reason, Mueller states:

“The ordinary means for an individual to respond to an accusation is through a speedy and public trial, with all the procedural protections that surround a criminal case. An individual who believes he was wrongly accused can use that process to seek to clear his name. In contrast , a prosecutor’s judgment that crimes were committed, but that no charges will be brought , affords no such adversarial opportunity for public name-clearing before an impartial adjudicator.”

“The concerns about the fairness of such a determination would be heightened in the case of a sitting President, where a federal prosecutor’s accusation of a crime, even in an internal report , could carry consequences that extend beyond the realm of criminal justice.”

“Although a prosecutor’s internal report would not represent a formal public accusation akin to an indictment, the possibility of the report ‘s public disclosure and the absence of a neutral adjudicatory forum to review its findings counseled against potentially determining “that the person’s conduct constitutes a federal offense .” ”

Fourth, if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice , we would so state. Based on the facts and the applicable legal standards , however, we are unable to reach that judgment.”

These two sentences are key to understanding the report. Because Mueller believed he could not make prosecution/declination decisions for the reasons enumerated in this post, Mueller’s authority extended to the ability to collect evidence if, in his judgement, a crime was committed but could not be charged as such.

For most cases, the DOJ doesn’t “clear” people while simultaneously releasing damning information about them; it chooses to indict or not. However, due to the extenuating circumstances a publicly-known investigation into a sitting president, and from the reasoning in this post, *indicting was not within Mueller’s authority*.  Much like in the Clinton investigation, the general public has great interest in the Mueller investigation and has a right to know what was learned about the president’s behavior.  The Constitutional method to address presidential law-breaking is impeachment, not indictment. Mueller so states in a footnote on page 179 of Volume II:

“A possible remedy through impeachment for abuses of power would not substitute for potential criminal liability after a President leaves office. Impeachment would remove a President from office, but would not address the underlying culpability of the conduct or serve the usual purposes of the criminal law. Indeed, the Impeachment Judgment Clause recognizes that criminal law plays an independent role in addressing an official’s conduct, distinct from the political remedy of impeachment.”

The information Mueller gathered was relevant to holding the president accountable for his actions and was therefore included in the report. To not release the information would cause a loophole in the idea of checks and balances set up by the Constitution; if the AG, appointed by the president, was able to prevent the release of the results of a professional investigation into potentially impeachable offenses committed by the president, the president would effectively be above the law. This is why Congress needs access to the unredacted version of Mueller’s report, because the AG redacted it and is a political appointee; there needs to be a way for him to be held accountable, to check his power.

“The evidence we obtained about the President ‘s actions and intent [with regard to Obstruction] presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.”

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“In order to constitute Obstruction, 3 elements are required:

“Applying the obstruction statutes to the President ‘s official conduct would involve determining as a factual matter whether he [1] engaged in an obstructive act, [2] whether the act had a nexus to official proceedings, and [3] whether he was motivated by corrupt intent.” ”

So the question following the Mueller Report is: do the facts laid down in Volume Two meet the criteria Mueller lays out for Obstruction? Mueller declined to make this judgment for reasons 1-4 listed, but that doesn’t mean there is no case to be made.  Mueller has laid out enough evidence for the public to make a non-partisan decision.

 

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