At CFIF, the issue of improving taxpayer privacy and protection against persistent abuse by the Internal…
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Quote of the Day: Taxpayer Privacy and IRS Abuse

At CFIF, the issue of improving taxpayer privacy and protection against persistent abuse by the Internal Revenue Service (IRS) remains among our most important missions.  Among the abuses that we've chronicled is the case of convicted criminal Charles Littlejohn, who rejoined the IRS in 2017 with the specific purpose of illegally breaching and leaking the private tax returns of Donald Trump and other Americans to radical left-wing organizations like ProPublica.

In The Wall Street Journal this week, one of those victims speaks out on his own experience and the need for greater taxpayer protection against this recurring problem that should terrify all Americans of every political persuasion.  Ira Stoll, whose tax information was passed to ProPublica, even helpfully details how…[more]

May 29, 2024 • 11:28 AM

Liberty Update

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Hillarygate: FBI Director's Factual Conclusions Match Applicable Federal Statute Print
By Timothy H. Lee
Thursday, July 07 2016
[T]he law requires "gross negligence," which is synonymous with the very "extreme carelessness" that Director Comey explicitly found.

Did Hillary Clinton violate federal law by using an unsecured personal email system as Secretary of State? 

That question generated intense commentary this week.  Because of the inherent political implications, however, most commentaries unfortunately generated more heat than light. 

It's therefore worth highlighting the applicable federal statute, then applying in an objective manner the relevant facts as laid out by FBI Director James Comey himself.  Not the opinion of commentators or political figures, not speculation, not inferences, but the actual findings of the man charged with conducting the FBI investigation. 

The applicable federal statute is 18 U.S. Code Section 793, entitled "Gathering, Transmitting or Losing Defense Information."  That statute, which in Mr. Comey's own words makes it "a felony to mishandle classified information, either intentionally or in a grossly negligent way," reads in relevant part: 

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. 

That statute's relevant mental state - "gross negligence" - is defined by Black's Law Dictionary as follows:  "A severe degree of negligence taken as reckless disregard." 

Applying the facts of the case to that statute, Director Comey concluded that, "Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information." 

Note Director Comey's key words:  "extremely careless." 

"For example," he continued, "seven email chains concern matters that were classified at the Top Secret/Special Access Program level when they were sent and received."  He added, "any reasonable person in Secretary Clinton's position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation." 

That's the textbook characterization of legal negligence. 

Director Comey then made it a point to refute Clinton's continuing suggestion that whether information is "marked classified" is of importance: 

Separately, it is important to say something about the marking of classified information.  Only a very small number of the emails containing classified information bore markings indicating the presence of classified information.  But even if information is not 'marked classified' in an email, participants who know or should know that the subject matter is classified are still obligated to protect it. 

Director Comey then went out of his way to assess the broader degree of negligence and unprofessionalism in the State Department during Clinton's tenure: 

While not the focus of our investigation, we also developed evidence that the security culture of the State Department in general, and with respect to use of unclassified email systems in particular, was generally lacking in the kind of care for classified information found elsewhere in the government... 

We do assess that hostile actors gained access to the private commercial email accounts of people with whom Secretary Clinton was in regular contact from her personal account.  We also assess that Secretary Clinton's use of a personal email domain was both known by a large number of people and readily apparent.  She also used her personal email extensively while outside the United States, including sending and receiving work-related emails in the territory of sophisticated adversaries.  Given that combination of factors, we assess it is possible that hostile actors gained access to Secretary Clinton's personal email account.  So that's what we found.  (emphasis added) 

So those were the factual conclusions reached by the FBI Director charged with applying the relevant federal statute in question.   Not other commentators' opinions, whether from the political left, right or center.  Not the Clinton campaign or the Trump campaign.  Not American voters, who by an overwhelming 54% to 37% majority believe that the FBI should've sought a criminal indictment of Mrs. Clinton. 

Despite those factual findings, Director Comey went to what he admitted was the "unusual" step of publicly recommending against prosecution.  His stated basis for that forgiving recommendation was that he couldn't find "clearly intentional and willful mishandling of classified information, or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct, or indications of disloyalty to the United States, or efforts to obstruct justice." 

But as set forth above, that's not what the federal statute requires. 

Rather, the law requires "gross negligence," which is synonymous with the very "extreme carelessness" that Director Comey explicitly found. 

So Mrs. Clinton escapes criminal prosecution, although political prosecution by the American electorate obviously remains another matter. 

And to the infamous Clinton lexicon of "it depends on what the meaning of the word 'is' is," "vast right-wing conspiracy" and so many others, we can now add, "extreme carelessness isn't necessarily gross negligence."

Notable Quote   
"Georgia Secretary of State Brad Raffensperger says Democrats have tipped their hand to their desire to unleash noncitizen voting by opposing his state's citizenship verification in court and he is urging elections chiefs in other states to fight such lawsuits.Georgia's citizenship verification system has prevented noncitizens from getting on state voter rolls, but the state had to defend it in court…[more]
— Natalia Mittelstadt, Just the News
Liberty Poll   

Which would be the most useful for voters: a televised presidential debate that only includes Trump and Biden or one that adds Kennedy?