Fox News is hyperventilating over what it calls a ‘gag order’ on the FBI agents involved in the Clinton email server investigation.  Some of the FBI employees involved in the investigation were required to sign a ‘Case Briefing Acknowledgement’ form, essentially a non-disclosure form.

This is, in fact, a practice dating back at least to World War II when it was little more than a list of persons who had been granted access to special compartments of extremely sensitive information.  It was first referred to as a ‘Bigot List’.  ‘Bigot’ was reportedly the codeword used to identify one particular compartment.  It has come to refer more broadly to a counterintelligence tool to simply keep track of who had authorized access to particularly sensitive national security information.

In his letter of July 6, 2016, to FBI Director James Comey,  Senate Judiciary Committee Chairman Charles Grassley suggests the requirement for FBI employees to sign the acknowledgement form was done to thwart statutorily-permitted whistleblowing to Congress.  No, Chuck, it was intended to protect very sensitive national security information from unauthorized disclosure.   It was intended to remind those given access of their duty to protect that information.  Almost anyone who has been ‘read on’ for authorized access to certain types of sensitive compartmented information has signed a similar form.   That, by the way, almost certainly includes Hillary Clinton during her tenure as Secretary of State.

It is no surprise that some FBI employees were required to sign the acknowledgement.  For us on the outside who care to pay attention, it may partially reveal the reasons the FBI Director recommended to the Attorney General that Clinton not be prosecuted criminally for the various criminal violations that may have been associated with her private email server.

In its investigation of Clinton’s private email server, the FBI is between the dog and the fire hydrant.  It has two distinct roles:  criminal investigation and foreign counterintelligence.  Of the two, the latter affects our national security; the former affects Clinton’s liberty.

On criminal charges relating to the compromise of national security information, it would be horrendously challenging to secure a meaningful criminal conviction of Hillary Clinton without risking further compromise of our national security, including our ability to investigate and counteract future threats against it.

On the other hand,  removing the foreign counterintelligence violations by declining to prosecute them does not automatically preclude using evidence of non-national security crimes (e.g., perjury, bribery, lying to Congress, Foreign Corrupt Practices Act, racketeering, wire and mail frauds, etc.) uncovered in the server investigation from being used in subsequent federal criminal prosecutions.  It would, however, make it more difficult for Hillary Clinton and her defense lawyers to use ‘graymail’ to impede her prosecution on federal crimes not requiring sensitive national security information or procedures as evidence.

Hillary Clinton’s continued access to national security information represents an exceptionally grave threat to the national security of the United States.  The threat it poses is in her utter indifference to her responsibilities to safeguard national security information entrusted to her.  It appears she considers national security information to be little more than another token to be exchanged to further her own attainment of political power and personal wealth.     President Obama who nominated her to be his Secretary of State and the 94 US Senators who for their own political purposes voted to confirm her share the responsibility for the damage she has done to the national security.

While many people want the satisfaction of seeing Hillary Clinton indicted, convicted, and imprisoned, the real power to forever prevent her from being able to continue further harm to the national security rests with the voters in November.  The voters can peacefully and lawfully deny her the presidency.  I’d argue that would also be a far more fitting and beneficial punishment for the harm she has done to the national security.

In a prepared statement to the media yesterday FBI Director James Comey declared the FBI has determined “…no charges are appropriate in this case.”  He’s referring to Hillary Clinton’s private email server having been improperly used to store and communicate national security information.

So what does Director Comey’s declaration mean?  It means exactly what it says and nothing more:  The FBI does not recommend to the Department of Justice (DoJ) that any criminal complaints relating to the email server be filed or indictments sought against anyone in that matter.

Ultimately the decision to seek indictment or an arrest warrant rests entirely with the DoJ in its role as prosecuting attorney over federal laws.

If they choose, the layers of lawyers at Main Justice can accept the FBI’s recommendation, reject it, or after evaluating the results of the FBI’s investigation, direct the FBI to investigate further before DoJ makes its charging decision.

So is it over?

No.  Not until the DoJ lawyers say it’s over.  If and when the feds decide prosecution is warranted and most appropriate, it is still on the table as long as the actions commence within the statutes of limitations on the crimes alleged.

As we’ve commented in previous OpenCdA posts on this matter, criminal prosecution is not the most important or even the most desirable result of the FBI’s investigation. (more…)

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Here is the text of the entire statement FBI Director James Comey made at a press briefing a few minutes ago:

Statement by FBI Director James B. Comey on the Investigation of Secretary Hillary Clinton’s Use of a Personal E-Mail System