Hillary Clinton

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TPP and Democratic Self-Delusion

After months of telling Bernie Sanders to drop out, the political chatterers are finally understanding one reason he did not do so: to maintain leverage over things like the party platform. After the platform was finalized yesterday, Bernie declared victory.

Pressed by supporters of U.S. Sen. Bernie Sanders, Democratic Party platform writers meeting this weekend in Orlando, Florida, adopted a progressive agenda that underscores the need for bold action on climate change, addresses criminal justice reform and calls for doubling the federal minimum wage.

“We have made enormous strides,” Sanders said. “Thanks to the millions of people across the country who got involved in the political process – many for the first time – we now have the most progressive platform in the history of the Democratic Party.”

The Platform Committee also adopted an amendment focused on criminal justice reform which calls for an investigation by the Department of Justice to investigate all shootings involving police officers.

The platform that will be submitted at the Democratic National Convention later this month in Philadelphia also would support Congress putting a price on carbon and methane to discourage continued use of fossil fuels that are causing severe climate change. The platform also says lawmakers must consider the impact on the climate in all federal decisions and invest heavily in wind and solar power rather than natural gas.

Delegates allied with Hillary Clinton’s and Sanders’ campaigns also passed amendments to fight for a $15 federal minimum wage tied to inflation, urged passage of progressive immigration reform and called for legalization of marijuana.

There were three issues, however, where Sanders’ delegates lost: opposition to Israeli settlements, a ban on fracking, and opposition to the Trans-Pacific Partnership.

The first two make sense: after all, those policy positions match Hillary’s stated position (though the US is supposed to be opposed to illegal settlements), so rejecting Sanders’ amendments equated to backing the nominee instead. That’s the way it’s supposed to work.

But Hillary, of course, claimed to oppose the TPP during the primary, even if that claim was always sketchy coming as it did as she worked so hard to negotiate the crappy deal as Secretary of State. So the mealy-mouthed language in the platform about protecting workers — akin to the same language in the Colombia Trade Deal that did squat to protect workers — is more notable.

As is the idiotic opinion expressed by this person, described by Robert Reich as an acquaintance from the Clinton White House.

ACQUAINTANCE: “Don’t you think your blog post from last night was a bit harsh?”

ME: “Not at all. The Democratic Party is shooting itself in the foot by not officially opposing the Trans Pacific Partnership.”

[They talk about how the Democrats are supporting this to back the President.]

ME: “But it’s terrible policy. And it’s awful politics. It gives Trump a battering ram. Obama won’t be president in six months. Why risk it?”

ACQ: “They don’t see much of a risk. Most Americans don’t know or care about the TPP.”

ME: “But they know big corporations are running economic policy. They think the whole system is corrupt. Believe me, Trump will use this against Hillary.”

ACQ: “He can’t. She’s inoculated. She’s come out against the TPP.”

ME: “But it’s her delegates who voted not to oppose it in the Democratic platform. Her fingerprints are all over this thing.”

Trump may not have many articulated policy positions, but his stance against TPP has been consistent and (unsurprisingly loud). Reich is right: to the extent that platforms mean anything at all, this will be used by Trump to pitch Democrats as sell-outs to American workers.

And the notion that voters won’t react against TPP is insulting. Sure, they may not know how specifically bad TPP is, but workers do know that NAFTA sucked. And Trump is certainly capable of equating the two.

Whoever this person is, by nature of being a Hillary advisor, he or she is supposed to be a technocratic elite. But this is idiotic, both from a policy and a political perspective.

Jim Comey, Poker Face, and the Scope of the Clinton Investigation(s)

Screen Shot 2016-07-07 at 10.11.04 PMI write this post reluctantly, because I really wish the Hillary investigations would be good and over. But I don’t think they are.

After having watched five and a half hours of the Clinton investigation hearing today, I’ve got new clarity about what the FBI has been doing for the last year. That leads me to believe that this week’s announcement that DOJ will not charge Clinton is simply a pause in the Clinton investigation(s). I believe an investigation will resume shortly (if one is not already ongoing), though that resumed investigation will also end with no charges — for different reasons than this week’s declination.

First, understand how this all came about. After the existence of Hillary’s server became known, State’s IG Steve Linick started an investigation into it, largely focused on whether Hillary (and other Secretaries of State) complied with Federal Records Act obligations. In parallel, as intelligence agencies came to complain about State’s redactions of emails released in FOIA response, the Intelligence Committee Inspector General Charles McCullough intervened in the redaction process and referred Clinton to the FBI regarding whether any classified information had been improperly handed. As reported, State will now resume investigating the classification habits of Hillary and her aides, which will likely lead to several of them losing clearance.

The FBI investigation that ended yesterday only pertained to that referral about classified information. Indeed, over the course of the hearing, Comey revealed that it was narrowly focused, examining the behavior of only Clinton and four or five of her close aides. And it only pertained to that question about mishandling classified information. That’s what the declination was based on: Comey and others’ determination that when Hillary set up her home-brew server, she did not intend to mishandle classified information.

This caused some consternation, early on in the hearing, because Republicans familiar with Clinton aides’ sworn testimony to the committee investigating the email server and Benghazi were confused how Comey could say that Hillary was not cleared to have her own server, but aides had testified to the contrary. But Comey explained it very clearly, and repeatedly. While FBI considered the statements of Clinton aides, they did not review their sworn statements to Congress for truth.

That’s important because the committee was largely asking a different question: whether Clinton used her server to avoid oversight, Federal Record Act requirements, the Benghazi investigation, and FOIA. That’s a question the FBI did not review at all. This all became crystal clear in the last minutes of the Comey testimony.

Chaffetz: Was there any evidence of Hillary Clinton attempting to avoid compliance with the Freedom of Information Act?

Comey: That was not the subject of our criminal investigation so I can’t answer that sitting here.

Chaffetz: It’s a violation of law, is it not?

Comey: Yes, my understanding is there are civil statutes that apply to that. I don’t know of a crimin–

Chaffetz: Let’s put some boundaries on this a little bit — what you didn’t look at. You didn’t look at whether or not there was an intention or reality of non-compliance with the Freedom of Information Act.

Comey: Correct.

Having started down this path, Chaffetz basically confirms what Comey had said a number of times throughout the hearing, that FBI didn’t scrutinize the veracity of testimony to the committee because the committee did not make a perjury referral.

Chaffetz: You did not look at testimony that Hillary Clinton gave in the United States Congress, both the House and the Senate?

Comey: To see whether it was perjurious in some respect?

Chaffetz: Yes.

Comey: No we did not.

[snip]

Comey: Again, I can confirm this but I don’t think we got a referral from Congressional committees, a perjury referral.

Chaffetz: No. It was the Inspector General that initiated this.

Now, let me jump to the punch and predict that OGR will refer at least Hillary’s aides, and maybe Hillary herself, to FBI for lying to Congress. They might even have merit in doing so, as Comey has already said her public claims about being permitted to have her own email (which she repeated to the committee) were not true. Plus, there’s further evidence that Hillary used her own server precisely to maintain control over them (that is, to avoid FOIA).

That said, there are two reasons why Hillary and her aides won’t be prosecuted for lying to Congress: James Clapper and Scott Bloch.

Clapper you all know about. The Director of National Intelligence — unlike Clinton — was not under oath when he spectacularly lied to Ron Wyden. Nor was he referred to DOJ for prosecution. But that recent lie will make FBI hesitate.

DOJ will hesitate even more given the history of Scott Bloch. bmaz has written a slew of posts about this but the short version is that the former Office of Special Counsel lied to this very committee and wiped his hard drive to obscure that fact. He ultimately pled guilty, but when the magistrate handling the case pointed out that the plea carried a minimum one month sentence, Bloch and DOJ went nuts and tried to withdraw his plea. bmaz and a bunch of whistleblowers who had been poorly treated by Bloch went nuts in turn. All to no avail. After DOJ claimed there were secret facts that no one understood, the court agreed to sentence Bloch to just one day in jail.

In other words, to keep one of their own out of jail, DOJ made expansive claims about how unimportant lying to Congress is. Even assuming DOJ would ignore their own recent historical claims about the frivolity of lying to Congress, Hillary’s lawyers could use that precedent to argue that lying to Congress has, effectively, been decriminalized (unilaterally by the Executive Branch!).

So FBI will investigate it. Comey might even refer, this time, for prosecution, because the evidence is actually far stronger that Hillary used her own server to avoid oversight (and that she was less than forthcoming about that to Congress). But that, too, won’t be prosecuted because you basically can’t prosecute lying to Congress after the Bloch case.

Which brings me to the funniest part of this exchange with Chaffetz (which, coming as it did in the last minutes of the hearing, has escaped most notice).

Chaffetz: Did you look at the Clinton Foundation?

Comey: I’m not going to comment on the existence or non-existence of any other investigation.

Chaffetz: Was the Clinton Foundation tied into this investigation?

Comey: I’m not going to answer that.

Understand: Comey had already commented on the existence or non-existence of other investigations, commenting at length on the non-investigation of questions pertaining to FOIA and FRA, even describing how many people (four to five) were subjects of this investigation. Comment on non-existence of investigation, comment on non-existence of investigation, comment on non-existence of investigation.

And for what it’s worth, the Clinton Foundation probably couldn’t have been part of the scope of this, given that this was only focused on four to five people (note, a Clinton Foundation investigation would better explain why FBI gave Brian Pagliano immunity, another topic on which Comey would not comment).

But when asked about the Clinton Foundation, he claimed he couldn’t say. All of a sudden, refusal to comment on existence or non-existence of investigation.

Now, I’m just going to say I don’t think anything will come of that, because I doubt FBI would clear Hillary on one issue but not the related one (plus, given SCOTUS’ ruling in the Bob McDonnell case, it probably became impossible to prosecute any Clinton Foundation violations). But Comey’s answer does make it clear that FBI considers questions about improperly handling classified information, avoiding FOIA and other oversight, lying about avoiding FOIA, and deals made with the Clinton Foundation to be different things.

I think that doesn’t change that Hillary won’t be indicted. But I do think she will continue to be investigated in conjunction with questions about what she did and said to avoid FOIA and other oversight.

Update: This post has been tweaked.

The CIA Is Preventing Congress from Learning that the Worst Allegations against Hillary Pertain to Drones

You probably heard that Jim Comey testified to the House Oversight Committee for over four hours today. You’ll see far less coverage of the second panel in that hearing, the testimony of Inspector Generals Steve Linick (from State) and Charles McCullough (from the IC).

In addition to OGR Chair Jason Chaffetz suggesting the committee convene a secrecy committee akin to the one Senator Daniel Patrick Moynihan convened back in the 1990s (which would be very exciting), McCullough revealed something rather startling regarding a letter he sent to Congress back in January (this was first reported by Fox). The letter was his official notice to Congress that some of the information in Hillary’s emails was claimed by an agency he didn’t name to be Special Access.

To date, I have received two sworn declarations from one IC element. These declarations cover several dozen emails containing classified information determined by the IC element to be at the CONFIDENTIAL, SECRET, and TOP SECRET/SAP levels. According to the declarant, these documents contain information derived from classified IC element sources. Due to the presence of TOP SECRET/SAP information, I provided these declarations under separate cover to the Intelligence oversight committees and the Senate and House leadership.

By sending the email, McCullough made the SAP information very public, without providing information about whether the claim was very credible.

Shortly after the Fox report, Politico reported that the emails pertained to CIA drone strikes and related fallout in Pakistan.

However, the emails now deemed to contain “top secret, special access program” information are in addition to the messages previously disputed between State and the Director of National Intelligence, according to a spokesperson for McCullough. The official said the intelligence community review group is wrapping up its look into the documents and is putting these documents in the SAP category.

The Central Intelligence Agency is the agency that provided the declarations about the classified programs, another U.S. official familiar with the situation told POLITICO Wednesday.

The official, who spoke on condition of anonymity, said some or all of the emails deemed to implicate “special access programs” related to U.S. drone strikes. Those who sent the emails were not involved in directing or approving the strikes, but responded to the fallout from them, the official said.

The information in the emails “was not obtained through a classified product, but is considered ‘per se’ classified” because it pertains to drones, the official added. The U.S. treats drone operations conducted by the CIA as classified, even though in a 2012 internet chat Presidential Barack Obama acknowledged U.S.-directed drone strikes in Pakistan.

WSJ reported last month that what are presumably the same emails included discussions among State Department officials about upcoming drone strikes.

The vaguely worded messages didn’t mention the “CIA,” “drones” or details about the militant targets, officials said.

The still-secret emails are a key part of the FBI investigation that has long dogged Mrs. Clinton’s campaign, these officials said.

They were written within the often-narrow time frame in which State Department officials had to decide whether or not to object to drone strikes before the CIA pulled the trigger, the officials said.

Law-enforcement and intelligence officials said State Department deliberations about the covert CIA drone program should have been conducted over a more secure government computer system designed to handle classified information.

State Department officials told FBI investigators they communicated via the less-secure system on a few instances, according to congressional and law-enforcement officials. It happened when decisions about imminent strikes had to be relayed fast and the U.S. diplomats in Pakistan or Washington didn’t have ready access to a more-secure system, either because it was night or they were traveling.

In other words, there has been a great deal of reporting on what are almost surely the emails in question, revealing that the key dispute pertains to an issue that CIA likes to pretend we don’t all know about, drone strikes in Pakistan.

In today’s hearing, McCullough reported that these emails — in addition to being a Special Access Program — are also classified Originator Controlled, ORCON, and the CIA (which he still didn’t name) has been refusing to distribute the emails or the statement beyond the original dissemination, the Intel committees and congressional leadership. So, in spite of the fact that numerous members of Congress have asked for more information (including, in today’s hearing, Chaffetz), they’ve been denied it. McCullough explained he had had to get his own staffers read into this, and he has gone back to the CIA (again, which he didn’t name) several times, only to have them refuse further distribution.

It may well be that the actual language used in the most sensitive emails revealed highly classified information — or it may be, as the WSJ reported, that State aides used a kind of code hiding the jist of their conversations.

Or it may be that State discussed a particularly controversial drone strike, such as the time CIA launched a drone strike right after Ray Davis was freed from Pakistani custody, which Jim White wrote about in a longer post suggesting CIA used drone strikes to retaliate against Pakistani action we don’t like.

Drone strikes in Pakistan by the US have occasionally been interrupted by various diplomatic issues. For example, there was a lull of over a month at the height of negotiations over the release of Raymond Davis. One of the most notorious US drone strikes was on March 17, 2011, the day after Raymond Davis was released. This signature strike killed over 40, and despite US claims (was that you, John Brennan?), that those killed “weren’t gathering for a bake sale” it was later determined that the majority of those killed were indeed civilians at a jirga to discuss local mineral rights. Because it was so poorly targeted, this strike always stood out in my mind as the product of an attitude where high-level US personnel demanded a target, no matter how poorly developed, simply to have something to hit since drone strikes had been on hold over the Davis negotiations and there was a need to teach Pakistan a lesson.

One way or another, though, these are topics that Congress (especially the Foreign Affairs Committees, which almost certainly have been denied these details) should be able to review.

But CIA is — as is their wont — playing classification games to ensure that a broader cross-section of Congress can’t assess how egregious this particular classification violation was.

Which, given CIA’s history, tends to mean either it wasn’t — or CIA has something to hide.

Some Legislative Responses to Clinton’s Email Scandal

The Republicans have reverted to their natural “Benghazi witchhunt” form in the wake of Jim Comey’s announcement Tuesday that Hillary Clinton and her aides should not be charged, with Comey scheduled to testify before the House Oversight Committee at 10 AM.

Paul Ryan wrote a letter asking James Clapper to withhold classified briefings from Hillary. And the House Intelligence Committee is even considering a bill to prevent people who have mishandled classified information from getting clearances.

In light of the FBI’s findings, a congressional staffer told The Daily Beast that the House Intelligence Committee is considering legislation that could block security clearances for people who have been found to have mishandled classified information in the past.

It’s not clear how many of Clinton’s aides still have their government security clearances, but such a measure could make it more difficult for them to be renewed, should they come back to serve in a Clinton administration.

“The idea would be to make sure that these rules apply to a very wide range of people in the executive branch,” the staffer said. (Clinton herself would not need a clearance were she to become president.)

It’s nice to see the same Republicans who didn’t make a peep when David Petraeus kept — and still has — his clearance for doing worse than Hillary has finally getting religion on security clearances.

But this circus isn’t really going to make us better governed or safer.

So here are some fixes Congress should consider:

Add some teeth to the Federal/Presidential Records Acts

As I noted on Pacifica, Hillary’s real crime was trying to retain maximal control over her records as Secretary of State — probably best understood as an understandable effort to withhold anything potentially personal combined with a disinterest in full transparency. That effort backfired spectacularly, though, because as a result all of her emails have been released.

Still, every single Administration has had at least a minor email scandal going back to Poppy Bush destroying PROFS notes pertaining to Iran-Contra.

And yet none of those email scandals has ever amounted to anything, and many of them have led to the loss of records that would otherwise be subject to archiving and (for agency employees) FOIA.

So let’s add some teeth to these laws — and lets mandate and fund more rational archiving of covered records. And while we’re at it, let’s ensure that encrypted smart phone apps, like Signal, which diplomats in the field should be using to solve some of the communication problems identified in this Clinton scandal, will actually get archived.

Fix the Espionage Act (and the Computer Fraud and Abuse Act)

Steve Vladeck makes the case for this:

Congress has only amended the Espionage Act in detail on a handful of occasions and not significantly since 1950. All the while, critics have emerged from all corners—the academy, the courts, and within the government—urging Congress to clarify the myriad questions raised by the statute’s vague and overlapping terms, or to simply scrap it and start over. As the CIA’s general counsel told Congress in 1979, the uncertainty surrounding the Espionage Act presented “the worst of both worlds”:

On the one hand the laws stand idle and are not enforced at least in part because their meaning is so obscure, and on the other hand it is likely that the very obscurity of these laws serves to deter perfectly legitimate expression and debate by persons who must be as unsure of their liabilities as I am unsure of their obligations.

In other words, the Espionage Act is at once too broad and not broad enough—and gives the government too much and too little discretion in cases in which individuals mishandle national security secrets, maliciously or otherwise.

To underscore this point, the provision that the government has used to go after those who shared classified information with individuals not entitled to receive it (including Petraeus, Drake, and Manning), codified at 18 U.S.C. § 793(d), makes it a crime if:

Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted … to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it …

This provision is stunningly broad, and it’s easy to see how, at least as a matter of statutory interpretation, it covers leaking—when government employees (“lawfully having possession” of classified information) share that information with “any person not entitled to receive it.” But note how this doesn’t easily apply to Clinton’s case, as her communications, however unsecured, were generally with staffers who were“entitled to receive” classified information.

Instead, the provision folks have pointed to in her case is the even more strangely worded § 793(f), which makes it a crime for:

Whoever, being entrusted with or having lawful possession or control of [any of the items mentioned in § 793(d)], (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 … fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer …

Obviously, it’s easy to equate Clinton’s “extreme carelessness” with the statute’s “gross negligence.” But look closer: Did Clinton’s carelessness, however extreme, “[permit] … [classified information] to be removed from its proper place of custody or delivered to anyone in violation of [her] trust”? What does that even mean in the context of intangible information discussed over email? The short answer is nobody knows: This provision has virtually never been used at least partly because no one is really sure what it prohibits. It certainly appears to be focused on government employees who dispossess the government of classified material (like a courier who leaves a satchel full of secret documents in a public place). But how much further does it go?

There’s an easy answer here, and it’s to not use Clinton as a test case for an unprecedented prosecution pursuant to an underutilized criminal provision, even if some of us think what she did was a greater sin than the conduct of some who have been charged under the statute. The better way forward is for Congress to do something it’s refused to do for more than 60 years: carefully and comprehensively modernize the Espionage Act, and clarify exactly when it is, and is not, a crime to mishandle classified national security secrets.

Sadly, if Congress were to legislate the Espionage Act now, they might codify the attacks on whistleblowers. But they should not. They should distinguish between selling information to our adversaries and making information public. They should also make it clear that intent matters — because in the key circuit, covering the CIA, the Pentagon, and many contractors, intent hasn’t mattered since the John Kiriakou case.

Eliminate the arbitrariness of the clearance system

But part of that should also involve eliminating the arbitrary nature of the classification system.

I’ve often pointed to how, in the Jeffrey Sterling case, the only evidence he would mishandle classified information was his retention of 30-year old instructions on how to dial a rotary phone, something far less dangerous than what Hillary did.

Equally outrageous, though, is that four of the witnesses who may have testified against Sterling, probably including Bob S who was the key witness, have also mishandled classified information in the past. Those people not only didn’t get prosecuted, but they were permitted to serve as witnesses against Sterling without their own indiscretions being submitted as evidence. As far as we know, none lost their security clearance. Similarly, David Petraeus hasn’t lost his security clearance. But Ashkan Soltani was denied one and therefore can’t work at the White House countering cyberattacks.

Look, the classification system is broken, both because information is over-classified and because maintaining the boundaries between classified and unclassified is too unwieldy. That broken system is then magnified as people’s access to high-paying jobs are subjected to arbitrary review of security clearances. That’s only getting worse as the Intelligence Community ratchets up the Insider Threat program (rather than, say, technical means) to forestall another Manning or Snowden.

The IC has made some progress in recent years in shrinking the universe of people who have security clearances, and the IC is even making moves toward fixing classification. But the clearance system needs to be more transparent to those within it and more just.

Limit the President’s arbitrary authority over classification

Finally, Congress should try to put bounds to the currently arbitrary and unlimited authority Presidents claim over classified information.

As a reminder, the Executive Branch routinely cites the Navy v. Egan precedent to claim unlimited authority over the classified system. They did so when someone (it’s still unclear whether it was Bush or Cheney) authorized Scooter Libby to leak classified information — probably including Valerie Plame’s identity — to Judy Miller. And they did so when telling Vaughn Walker could not require the government to give al Haramain’s lawyers clearance to review the illegal wiretap log they had already seen before handing it over to the court.

And these claims affect Congress’ ability to do their job. The White House used CIA as cover to withhold a great deal of documents implicating the Bush White House in authorizing torture. Then, the White House backed CIA’s efforts to hide unclassified information, like the already-published identities of its torture-approving lawyers, with the release of the Torture Report summary. In his very last congressional speech, Carl Levin complained that he was never able to declassify a document on the Iraq War claims that Mohammed Atta met with a top Iraqi intelligence official in Prague.

This issue will resurface when Hillary, who I presume will still win this election, nominates some of the people involved in this scandal to serve in her White House. While she can nominate implicated aides — Jake Sullivan, Huma Abedin, and Cheryl Mills — for White House positions that require no confirmation (which is what Obama did with John Brennan, who was at that point still tainted by his role in torture), as soon as she names Sullivan to be National Security Advisor, as expected, Congress will complain that he should not have clearance.

She can do so — George Bush did the equivalent (remember he appointed John Poindexter, whose prosecution in relation to the Iran-Contra scandal was overturned on a technicality, to run the Total Information Awareness program).

There’s a very good question whether she should be permitted to do so. Even ignoring the question of whether Sullivan would appropriately treat classified information, it sets a horrible example for clearance holders who would lose their clearances.

But as far as things stand, she could. And that’s a problem.

To be fair, legislating on this issue is dicey, precisely because it will set off a constitutional challenge. But it should happen, if only because the Executive’s claims about Navy v. Egan go beyond what SCOTUS actually said.

Mandate and fund improved communication system

Update, after I posted MK reminded me I meant to include this.

If Congress is serious about this, then they will mandate and fund State to fix their decades-long communications problems.

But they won’t do that. Even 4 years after the Benghazi attack they’ve done little to improve security at State facilities.

Update: One thing that came up in today’s Comey hearing is that the FBI does not routinely tape non-custodial interviews (and fudges even with custodial interviews, even though DOJ passed a policy requiring it). That’s one more thing Congress could legislate! They could pass a simple law requiring FBI to start taping interviews.

Does Jim Comey Think Thomas Drake Exhibited Disloyalty to the United States?

As you’ve no doubt heard, earlier today Jim Comey had a press conference where he said Hillary and her aides were “extremely careless in their handling of very sensitive, highly classified information” but went on to say no reasonable prosecutor would prosecute any of them for storing over 100 emails with classified information on a server in Hillary’s basement. Comey actually claimed to have reviewed “investigations into mishandling or removal of classified information” and found no “case that would support bringing criminal charges on these facts.”

Our investigation looked at whether there is evidence classified information was improperly stored or transmitted on that personal system, in violation of a federal statute making it a felony to mishandle classified information either intentionally or in a grossly negligent way, or a second statute making it a misdemeanor to knowingly remove classified information from appropriate systems or storage facilities.

[snip]

Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past.

In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: 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. We do not see those things here.

To be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences. To the contrary, those individuals are often subject to security or administrative sanctions. But that is not what we are deciding now.

Before we get into his argument, consider a more basic point: It is not Jim Comey’s job to make prosecutorial decisions. Someone else — whichever US Attorney oversaw the prosecutors on this case, Deputy Attorney General Sally Yates, or Loretta Lynch — makes that decision. By overstepping the proper role of the FBI here, Comey surely gave Lynch cover — now she can back his decision without looking like Bill Clinton convinced her to do so on the tarmac. But he has no business making this decision, and even less business making it public in the way he did (the latter of which points former DOJ public affairs director Matthew Miller was bitching about).

But let’s look at his judgment.

Given that Jeffrey Sterling has been in prison for a year based off a slew of metadata (albeit showing only 4:11 seconds of conversation between James Risen and Sterling) and three, thirty year old documents, classified Secret, describing how to dial a phone, documents which were presented to prove Sterling had the “intent” to retain a document FBI never showed him retaining, I’m particularly interested in Comey’s judgment that no reasonable prosecutor would bring charges based on the facts found against Hillary. Similarly, given the history of the Thomas Drake prosecution, in which he was charged with Espionage because he kept a bunch of documents on NSA’s fraud, at the direction of the Inspector General, which the FBI found in his basement.

I can only imagine Comey came to his improper public prosecutorial opinion via one of two mental tricks. Either he — again, not the prosecutor — decided the only crime at issue was mishandling classified information (elsewhere in his statement he describes having no evidence that thousands of work emails were withheld from DOJ with ill intent, which dismisses another possible crime), and from there he decided either that it’d be a lot harder to prosecute Hillary Clinton (or David Petraeus) than it would be someone DOJ spent years maligning like Sterling or Drake. Or maybe he decided that there are no indications that Hillary is disloyal to the US.

Understand, though: with Sterling and Drake, DOJ decided they were disloyal to the US, and then used their alleged mishandling of classified information as proof that they were disloyal to the US (Drake ultimately plead to Exceeding Authorized Use of a Computer).

Ultimately, it involves arbitrary decisions about who is disloyal to the US, and from that a determination that the crime of mishandling classified information occurred.

For what its worth, I think most of these cases should involve losing security clearances rather than criminal prosecution (though Petraeus also lied to FBI). But we know, even there, the system is totally arbitrary; DOJ has already refused to answer whether any of Hillary’s aides will be disciplined for their careless handling of classified information and Petraeus never did lose his clearance. Nor did the multiple witnesses who testified against Sterling who themselves mishandled classified information lose their security clearance.

Which is another way of saying our classification system is largely a way to arbitrarily label people you dislike disloyal.

Hillary’s Mode of Governance: Boozy X Chromosomes Making Peace

The NYT has an article describing how a bunch of apparently moronic Hillary aides believe they will govern when she becomes President. I say moronic not just because — in a week when Hillary’s spouse scored an enormous own goal by chatting up Attorney General Loretta Lynch on the tarmack in Phoenix — numerous Hillary aides said Hillary might keep Lynch as AG.

Democrats close to Mrs. Clinton say she may decide to retain Ms. Lynch, the nation’s first black woman to be attorney general, who took office in April 2015.

No, I say moronic because the people behind this article apparently believe the following things will help Hillary — a candidate with historically high negatives — overcome historic partisanship.

Lots and lots of booze

This article reads almost more like a screenplay than news article, especially with its repeated portrayals of Georgetown-like cocktail parties in the White House lubricating political deals.

Mrs. Clinton would even schmooze differently than the past few presidents have. Not one to do business over golf or basketball, she would bring back the intimate style of former Presidents Ronald Reagan and Lyndon B. Johnson, negotiating over adult beverages. Picture a steady stream of senators, congressmen and other leaders raising a glass and talking policy in the Oval Office with her and her likely chief of staff, John D. Podesta, as her husband pops in with a quick thought or a disarming compliment.

[snip]

Her greatest strength is that she really listens to people, she understands what their political and policy needs are, and she tries to find that space where you can compromise,” said Neera Tanden, a former top domestic policy adviser to Mrs. Clinton who is now the president of the Center for American Progress, a left-leaning policy institute.

“To be crystal clear: She has led many battles where you can’t compromise on principle,” Ms. Tanden added. “But she also loves socializing, loves having people and spouses over, and really loves talking over drinks.”

[snip]

Mrs. Clinton’s ability to use alcohol as a political lubricant came up repeatedly when allies and advisers were asked how she might work with Republicans. Her tale about a drinking contest with Senator John McCain of Arizona is now a Washington legend. (She said they called it quits before things got out of hand.) She believes that a relaxed, frank discussion is more authentic than trying to bond awkwardly with adversaries over sports — and more productive than keeping them at arm’s length, as Mr. Obama has often done.

“She likes to cajole, she likes to make deals, and she likes to make friends,” said Richard Socarides, a former policy adviser to Bill Clinton and a longtime supporter of Mrs. Clinton. “And she knows it’s much harder to go after someone who you basically like, who you’ve had a drink with.”

Sure, this is how things used to work. But I’m not sure cocktail parties can bridge the last two decades of increased partisanship, much of which has been targeted directly at the Clintons. I’m not even sure that many politicians drink as much anymore.

Lots of X chromosomes

Hillary also appears to believe merely increasing the number of women in the cabinet will lead to more hopey changey.

In her first 100 days, she would also tap women to make up half of her cabinet in hopes of bringing a new tone and collaborative sensibility to Washington, while also looking past Wall Street to places like Silicon Valley for talent — perhaps wooing Sheryl Sandberg from Facebook, and maybe asking Tim Cook from Apple to become the first openly gay cabinet secretary.

[snip]

“There’s that old saying, ‘Nothing about us without us,’” said Jennifer Granholm, a former Democratic governor of Michigan who supports Mrs. Clinton. “I mean, a woman as chief of staff, Treasury secretary, a woman at Defense — it would be incredible.” (Ms. Granholm is often mentioned as a possible cabinet pick for the Energy Department or another post, but she waved off a question about her interest.)

Look, having the first female Presidents will be one of the big highlights of an (expected) Hillary presidency for me. But there is no reason to believe that women — especially those that have achieved cabinet level success — are any less cutthroat than men.

Moreover, Hillary will face the same problem Obama did: the bench simply isn’t that deep. While there are a number of likely cabinet officials, like Granholm, who aren’t currently engaged, to achieve 50% cabinet positions, you’d be cherry picking governors and members of Congress without the assurances they’d be replaced by more women. I’m far more interested in increasing the number of long term members of Congress who are women, for the near future, than achieving some magic 50% number. That will, in turn, ensure that another woman is ready to step up when it comes time for Hillary to retire.

Silencing Bill

Then there’s the question about what to do about First Gentleman Bill. For some reason, even in the week of tarmackgate, Hillary’s aides seem to think they can prevent him from stepping in it.

Clinton advisers say they do not expect Mr. Clinton to be constantly visible in the early months beyond whatever duties Mrs. Clinton gives him on economic policy and foreign affairs. The Clintons’ priority is that he does not do anything that distracts from her agenda or overshadows her as the country gets used to having a former president (and a man) in the role of first spouse.

One role he will be welcome to play is as an icebreaker at the Oval Office happy hour.

Look, even aside from Bill’s constitutional inability to avoid own goals, the notion that you could give him a big economic and/or foreign policy portfolio and at the same time have him keep a low profile is fantasy. Either you relegate him, exclusively, to running the never-ending cocktail party, or he will make some gaffes. You can’t pick and choose with Bill.

Forging deals on the issue that will be especially raw given Trump’s expected campaign

Finally, there’s the belief that after a year of having Trump rile up Republican nativists, the drunken Republicans frequenting the White House cocktail hour will rush to compromise on immigration reform.

Her calculation is that she will be dealing with a Republican Party that is deeply fractured and demoralized after the defeat of Mr. Trump, whose leaders will be searching for ways to show they can govern and to court Hispanics if Mr. Trump loses badly with them. Mrs. Clinton also thinks a huge Democratic turnout this fall would put the Senate back in her party’s hands, while Speaker Paul D. Ryan and the Republicans would have a reduced majority in the House.

[snip]

Given how deeply immigration has divided the Republican Party, no other issue would probably reveal more about the ability of a President Hillary Clinton and a Republican-led House to work together.

On this, Hillary’s aides might be right — but not so long as you imagine Hillary does anything to keep a viable GOP in place. Yes, the neocons who have already backed Hillary support immigration reform and other kinds of globalization. But after the campaign immigration is going to be far more volatile and raw than it was when Obama failed to pass immigration reform.

It could happen, but not without a significant realignment, one that would require far more ruthless punishment and far fewer martinis than Hillary seems to have in mind.

 

 

At Same Time as DNC Hack Released, Funny Alleged Hacks in the Middle East

You’ve probably heard that hackers, probably Russian, hacked the DNC and released a bunch of information, including a really crappy oppo research report on Donald Trump. See this post for some of the materials and this analysis of the materials (including metadata to support the case these are Russians).

Given that development, I’m even more interesting in this development than I already was. Several websites in the Middle East — in this case Jordan’s Petra news service — posted a report that Mohammed bin Salman, the third ranking Saudi royal, had claimed to have provided Hillary 20% of her campaign funding.

On Sunday a report appeared on the Petra News Agency website that included what were described as exclusive comments from Saudi Deputy Crown Prince Mohammed bin Salman. The comments included a claim that Riyadh has provided 20 percent of the total funding to the prospective Democratic candidate’s campaign.

I’m particularly interested in how that report got disclaimed: with intervention by the Podesta Group, which is both a lobbying arm for the Saudis and the firm of Hillary’s campaign manager.

On Monday a spokesperson for American public relations firm the Podesta Group contacted MEE to say that they work with the Saudi Royal Court and to request a correction to our earlier story that said the Jordanian news agency had deleted the quotes from Prince Mohammed.

Senior global communications specialist Will Bohlen – who, prior to joining Podesta, was chief researcher for a best-selling history of Bill Clinton’s presidency – sent a link to a clarification issued by the Petra News Agency which said it was “totally false and untrue” that they had published then deleted the quotes from Prince Mohammed about funding the Clinton campaign.

“A technical failure on Petra ’s website occurred for a few minutes on Sunday evening, 12 June 2016,” the Jordanian news agency said. “Protection systems at the agency as well as the technical department noticed that and therefore, they suspended the transmission system and the electronic site and moved to the alternative website.

“Later, it became clear that the technical failure that occurred was an attempt to hack the agency’s transmission system and its website. The agency was surprised to see some media outlets as well as the social media publishing false news that were attributed to Petra. They said that Petra transmitted a news item related to the deputy crown prince of Saudi Arabia and later deleted this news item. This is totally false and untrue.”

For now, I will assume this was a hack, which (again) I find to coincide interestingly with the DNC hack. The Clinton Foundation does get far too much money from the Saudis, but we can review Hillary’s actual funding to be sure that Mo bin Salman is not funding her campaign directly.

In entirely unrelated news I’ll put here anyway, the big Saudi investor Alwaleed bin Talal is now Twitter’s second largest investor.

Prince Alwaleed Bin Talal Bin Abdulaziz Alsaud, who in 2011 invested $300 million in the social network, now owns 34.9 million shares of Twitter’s common stock, according to a new regulatory filing (pdf).

At nearly 5.2%, his stake in the company is now larger than that of Jack Dorsey, Twitter’s co-founder and newly re-minted CEO, whose 21.86 million shares give him 3.2% of the company, according to FactSet. (The prince previously had a stake of roughly 3%.)

Particularly given that Twitter isn’t exactly a great investment, I find Alwaleed’s interest in it notable.

Hillary Promises Not to Order the Military (!?!) to Torture

Though I agree with the general sentiment that Donald Trump should not be trusted with America’s nuclear codes, there’s a lot I loathed in Hillary’s foreign policy speech yesterday.

Her neat espousal of American exceptionalism, with the specter that another country could make decisions about our lives and jobs and safety, is especially rich coming from a woman who has negotiated several trade deals that give corporations the power to make decisions about our lives and jobs and safety.

I believe with all my heart that America is an exceptional country – that we’re still, in Lincoln’s words, the last, best hope of earth. We are not a country that cowers behind walls. We lead with purpose, and we prevail.

And if America doesn’t lead, we leave a vacuum – and that will either cause chaos, or other countries will rush in to fill the void. Then they’ll be the ones making the decisions about your lives and jobs and safety – and trust me, the choices they make will not be to our benefit.

That is not an outcome we can live with.

The rest of her riff on American exceptionalism — with weird claims like, “America’s network of allies is part of what makes us exceptional” and “Allies provide staging areas for our military” — is worth an entirely separate post.

Her cavalier invocation of dead bodies and prolonging depressions exhibits a lack of self-awareness.

I’m frankly baffled by her description of her plan to defeat ISIS, as well as her warnings elsewhere about allowing terrorists in Syria or emboldening ISIS, both of which past Hillary actions have done.

We need to lash up with our allies, and ensure our intelligence services are working hand-in-hand to dismantle the global network that supplies money, arms, propaganda and fighters to the terrorists. We need to win the battle in cyberspace.

[Applause]

And of course we need to strengthen our defenses here at home.

That – in a nutshell – is my plan for defeating ISIS.

Hillary never talks about how she’ll get the Saudis — one of those allies she wants to “lash up with” — to stop fostering terrorism. That seems like a first step.

I’m even more curious what she intends with “strengthening our defenses here at home,” especially coming just lines after she falsely claimed San Bernardino was an ISIS attack? We already arrest scores of people for their support for ISIS, for doing things like RTing ISIS propaganda. To do much more — and to find the San Bernardino couple before they attacked — would have required far more domestic spying. Is that what Hillary has planned?

But here’s the thing that most disturbs me about her hawkish speech. Note how she attacked Trump for his embrace of torture.

He has said that he would order our military to carry out torture and the murder of civilians who are related to suspected terrorists – even though those are war crimes.

[snip]

So it really matters that Donald Trump says things that go against our deepest-held values. It matters when he says he’ll order our military to murder the families of suspected terrorists. During the raid to kill bin Laden, when every second counted, our SEALs took the time to move the women and children in the compound to safety. Donald Trump may not get it, but that’s what honor looks like.

Two times in a formal, pre-written speech, delivered with tele-prompters, Hillary claimed Trump had said he’d order our military to carry out torture and murder of civilians. But that’s not what he said. He spoke generally, and when speaking of torture he has talked about “interrogators,” without reference to agency. Sure, that could mean DOD (and some DOD interrogators did torture under George Bush). It could also mean the FBI, the agency which currently leads high value interrogations and which John Brennan has said must have its “own processes and procedures and laws that govern its activities,” separate from the techniques permitted in the Army Field Manual.

But the assumption of everyone listening to Donald Trump’s promise to torture was that he’d ask CIA to do the business. Both former CIA Director Michael Hayden and current CIA Director John Brennan thought that’s what he meant, anyway.

While Hillary was Secretary of State, the government killed the son of Anwar al-Awlaki, effectively murdering the family of a suspected (dead) terrorist.

It’s bad enough that she’s lecturing Trump about our deepest-held values. But she’s also not promising to the one thing she appears to be promising: refusing to order the CIA — not the military — not to torture.

Imperialist Robert Kagan Disavows the Bureaucracy of Immense American Presidency He Championed

The chattering class is in love with this Robert Kagan op-ed warning of Donald Trump bringing fascism,

not with jackboots and salutes (although there have been salutes, and a whiff of violence) but with a television huckster, a phony billionaire, a textbook egomaniac “tapping into” popular resentments and insecurities, and with an entire national political party — out of ambition or blind party loyalty, or simply out of fear — falling into line behind him.

I suppose I’m unsurprised that Beltway insiders are so gleeful that this Hillary-endorsing Neocon has turned on Republicans in such a fashion. Or, perhaps more importantly, that they’re so thrilled someone with such a soapbox has written a warning of impending fascism that so neatly disavows any responsibility — for Kagan himself, and by association, for other insiders.

But there are a couple of real problems with Kagan’s screed.

First, Kagan would like you to believe that Trump’s success has nothing to do with policy or ideology or the Republican party except insofar as the party “incubated” Trump.

But of course the entire Trump phenomenon has nothing to do with policy or ideology. It has nothing to do with the Republican Party, either, except in its historic role as incubator of this singular threat to our democracy. Trump has transcended the party that produced him.

Kagan gets Trump’s relationship with the Republican party exactly reversed. The party did not in any way incubate Trump. 80’s style greed and cable TV incubated Trump, if anything. What the Republican party has long incubated is racism. Trump just capitalized on that and pushed it just … a … bit … further than Republican dogwhistles traditionally go, in a year in which the GOP had lost a great deal of its credibility.

Which is why Kagan is also wrong in claiming that Trump isn’t about policy or ideology. I admit that Trump has always shown great deal of ideological flexibility, both before and during this run. But he has been consistent on two points: that racism, but also protectionism. There are a lot of reasons those two ideological keystones have appealed this year, but one has to do with the failures of globalization and the related American hegemonic project it assumes. That’s ideology and policy, both Trump’s, but also DC’s, including Kagan’s.

Kagan goes on to deal with these two issues.

We’re supposed to believe that Trump’s support stems from economic stagnation or dislocation. Maybe some of it does. But what Trump offers his followers are not economic remedies — his proposals change daily. What he offers is an attitude, an aura of crude strength and machismo, a boasting disrespect for the niceties of the democratic culture that he claims, and his followers believe, has produced national weakness and incompetence. His incoherent and contradictory utterances have one thing in common: They provoke and play on feelings of resentment and disdain, intermingled with bits of fear, hatred and anger. His public discourse consists of attacking or ridiculing a wide range of “others” — Muslims, Hispanics, women, Chinese, Mexicans, Europeans, Arabs, immigrants, refugees — whom he depicts either as threats or as objects of derision. His program, such as it is, consists chiefly of promises to get tough with foreigners and people of nonwhite complexion. He will deport them, bar them, get them to knuckle under, make them pay up or make them shut up.

Note the assumption that Trump’s protectionism is not an economic remedy but some unstated alternative is? Note Kagan’s treatment of racism, an ideology, as fear divorced from that ideology of white American exceptionalism?

Fear!! Kagan wants to boil Trump’s popularity down to fear! A guy who has had a central role in ginning up serial American aggressive wars is offended that someone wields fear to achieve political power!!! And having done that, this warmonger says the ability to gin up fear is precisely what our Founders — the men who set up three competing branches of government, each jealously guarding its power — were concerned about.

Which brings me to the Kagan argument that most baffles me. After bewailing Republican politicians’ refusal to stand up to Trump’s demagoguery, Kagan then argues (though I’m not sure he even realizes he’s making this argument) that Article I and Article III (the latter of which goes entirely unmentioned in this op-ed) will be powerless to stop Trump and his “legions” once he becomes president.

What these people do not or will not see is that, once in power, Trump will owe them and their party nothing. He will have ridden to power despite the party, catapulted into the White House by a mass following devoted only to him. By then that following will have grown dramatically. Today, less than 5 percent of eligible voters have voted for Trump. But if he wins the election, his legions will comprise a majority of the nation. Imagine the power he would wield then. In addition to all that comes from being the leader of a mass following, he would also have the immense powers of the American presidency at his command: the Justice Department, the FBI, the intelligence services, the military. Who would dare to oppose him then? Certainly not a Republican Party that laid down before him even when he was comparatively weak. And is a man like Trump, with infinitely greater power in his hands, likely to become more humble, more judicious, more generous, less vengeful than he is today, than he has been his whole life? Does vast power un-corrupt?

Never mind that Kagan describes general election numbers that simply don’t exist in our democracy. What he’s really complaining about is that a President — one he happens to distrust and dislike — would have “the immense powers of the American presidency at his command: the Justice Department, the FBI, the intelligence services, the military.”  Of course, Kagan focuses not on the government as a whole, but on the Deep State and the Justice Department that has increasingly become an integral part of it.

The guy who, for years, championed the unfettered exercise of the Deep State in the hands of people like Dick Cheney is now troubled about what would happen if Donald Trump got the same powers Dick Cheney had. And for what it’s worth, while I don’t buy Michael Hayden’s claim the CIA would resist a President Trump’s order to torture (Hayden’s successors at NSA and CIA will likely do just what Hayden himself did, capitulate to unconstitutional demands), I also know that neither Trump nor anyone in his immediate orbit has the kind of bureaucratic mastery of the Deep State that Dick Cheney had.

One more really important point: the Deep State — those tools Kagan is horrified Trump might soon wield — got so powerful, creating the danger that a demagogue like Trump might tap into them fully formed, largely in the service of an imperial project significantly sold by Robert Kagan. Kagan has claimed to be selling “Democracy™” around the world, but all along that project has rotted our own democracy here at home.

Kagan (and his fellow imperialists) did that. Not Trump. Trump would just take advantage of the bureaucratic tools Kagan’s propaganda has served to justify.

I’m not denying Donald Trump is a huge threat to American democracy (though I happen to think Hillary’s foreign policy will come with great risks and costs as well). I’m saying that Robert Kagan is not the one to make this argument — at least not without a whole lot of soul searching and commitment to change the underlying empowerment of “the immense powers of the American presidency.”

But Kagan doesn’t want that. Rather, he just wants to hand those powers, still unchecked, to Hillary Clinton.

The Intelligence Community Casts Its Vote for Hillary Clinton

Since Donald Trump all-but sealed the nomination the other day, there has been a bit of a tizzy because he’ll receive intelligence briefing(s). Several spooks and former spooks complained to the Daily Beast that Trump might run his mouth and let something slip.

And that prospect has some spies sweating. Trump, who can’t seem to dam his stream of consciousness on Twitter, and who has lately taken to spreading rumors and conspiracy theories on national television, has never been privy to national secrets. Nor has he ever demonstrated that he’s capable of keeping them.

“My concern with Trump will be that he inadvertently leaks, because as he speaks extemporaneously, he’ll pull something out of his hat that he heard in a briefing and say it,” said a former senior U.S. intelligence official who has participated in the process of briefing presidential candidates.

[snip]

“It’s not an unreasonable concern that he’ll talk publicly about what’s supposed to stay in that room,” said another former senior intelligence official.

A currently serving U.S. official echoed some of those anxieties and wondered whether Trump would respect the discretion of the briefing and not use it to his advantage on the campaign trail.

The DB piece admits that Hillary is under investigation for mishandling classified information, with her presumptive National Security Advisor Jake Sullivan among the staffers who forwarded emails the CIA claims (dubiously) to be super secret (curiously, this flurry of Trump briefing stories came on the same date the FBI was leaking to CNN that thus far they’ve got nothing against Hillary). It doesn’t mention that Leon Panetta, who leaked classified information for political gain, is also among Hillary’s advisors.

WaPo’s Greg Miller airs more concerns from the spooks, including that intelligence briefers would be uncomfortable briefing people who have close business ties to rivals or adversaries, not to mention people who espouse torture.

Analysts selected for such assignments tend to be among the most polished and experienced in the intelligence community. “They are going to be very professional,” Peritz said, but Trump poses unique complications. “He has all kinds of relationships with Chinese investors and Russian investors. He’s spoken very highly of our adversaries. And he’s talked about using torture and waterboarding and attacking people’s families. All these things are going through the analysts’ minds.”

Huh? The CIA doesn’t have anyone left over who briefed Dick Cheney? Because those guys surely knew he talked about torture and waterboarding! Or how about the folks who briefed Obama before someone killed Anwar al-Awlaki’s teenage son? And if Hillary, with all her ties to Clinton Global Initiatives people, can be briefed, I’m not sure why Trump can’t, with his business ties. It’s not as if the Russians and Chinese haven’t already stolen the secrets that Trump would get.

Look. Michele Bachmann served on the House Intelligence Committee for four years. She’s every bit as unpredictable as Donald Trump. And aside from that time she claimed that jihadis had already tried to penetrate 6 of the 15 Pakistani nuclear sites that were vulnerable — a detail that had already been reported to the press — she never ran her mouth more than, say, Marco Rubio when he leaked details about the implementation of USA Freedom Act earlier this year.

The point is, all this Sturm und Drang about Trump getting intelligence briefings ignores all the other leakage that already goes on by people the Intelligence Community doesn’t seem worried about briefing. All the more so given what Charlie Savage notes — that this is just one limited briefing; Trump won’t get to learn the good stuff until after he wins the Presidency.

Michael J. Morell, a former deputy C.I.A. director, who regularly briefed Mr. Obama before retiring in 2013, said the postconvention nominee briefing would last several hours. The idea is to “get them to understand that they have now stepped into a bigger world” in which foreign allies, adversaries, and neutral parties are paying close attention to whatever they say, and that their words may have broad consequences, he said.

Michael E. Leiter, a former director of the National Counterterrorism Center, provided the terrorism portion of the briefing that Mr. Obama received after he became the Democratic nominee in 2008. Mr. Leiter said the post-convention briefings lay out a significant amount of important and sensitive information.

“You are not trying to give them a tactical update on the issues of the day, but to lay out the full panoply of issues that they are going to face; the good, the bad, and the ugly of what the world looks like and what implications there may be going forward,” he said.

Both former officials said that the postconvention briefing for nominees would contain top secret information, but not a discussion of the sources and methods used to gather it, or any description of covert operations.

Raising the specter of classified information is nice. But this seems to be more a statement of preference for Hillary Clinton, and a continuation of the status quo, with all its questionable aggression, than a case against Trump, no matter how bad his foreign policy would be (though his domestic policy against minorities would be worse than his foreign policy). The spooks want Hillary and a continuation of their current plans.

Plus, all this whining ignores something else.

Although the Executive does so by very broadly interpreting the relevant precedents, for decades, Presidents have claimed — and the Intelligence Community has backed that claim fully — that they have unlimited discretion to classify or declassify information. The idea is that if some guy can get elected, he can decide what counts as classified in this country.

If that would be a problem with Trump, then maybe now is the time to start thinking about codifying some limits to giving popularly elected Presidents unfettered discretion to play with classified information? I, frankly, don’t want Hillary to have that authority either (or any President!). You never know when someone is going to leak an officer’s identity just for political gain, after all.

But the IC has for decades agreed with a system in which the President has complete, arbitrary control over what counts as classified. That’s the underlying problem. Not that Donald Trump might get a single intelligence briefing.

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