Cabinet & Agencies

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  • Pentagon Criticizes Benghazi Committee For Straining DOD Resources, Partly Over “Speculation”

    Right-Wing Media Has Hyped False Claims And Speculation Into Benghazi That Continue To Fuel The GOP Investigation

    Blog ››› ››› THOMAS BISHOP

    The Department of Defense criticized the investigation of the House Select Committee on Benghazi, saying repeated requests for documents and information have strained DOD resources and that they’re often based on, as Politico put it, “speculative or hypothetical” queries. Right-wing media have created many of the baseless conspiracy theories that helped create and fuel the Benghazi committee.

    In an April 28 letter to the House Select Committee on Benghazi, Assistant Secretary of Defense Stephen Hedger explained the strain the House investigation has had on the DOD, which has spent “millions of dollars on Benghazi-specific Congressional compliance, including reviews by four other committees.” Hedger specifically took issue with the ever-expanding investigation -- and its speculative nature -- noting that “DoD interviewees have been asked repeatedly to speculate or engage in discussing on the record hypotheticals posed by Committee Members and staff.” Politico reported on the letter:

    The Pentagon is pushing back against the House Benghazi Committee, saying its repeated requests for documents and interviews are straining the department's resources — and, to make matters worse, many of the queries are speculative or hypothetical.

    Assistant Secretary of Defense Stephen Hedger complained in a letter to the committee on Thursday about its continued demands for information, and implied that the panel is grasping to make assertions based on theory rather than facts.

    “[W]hile I understand your stated intent is to conduct the most comprehensive review of the attack and response, Congress has as much of an obligation as the executive branch to use federal resources and taxpayer dollars effectively and efficiently,” the letter reads. “The Department has spent millions of dollars on Benghazi-specific Congressional compliance, including reviews by four other committees, which have diligently reviewed the military’s response in particular.”

    Hedger also complained that Defense Department interviewees “have been asked repeatedly to speculate or engage in discussing on the record hypotheticals.”

    “This type of questioning poses the risk that your final report may be based on speculation rather than a fact-based analysis of what a military officer did do or could have done given his or her knowledge at the time of the attacks,” he wrote.

    Fox News was central to the launch and perpetuation of false information that led to the establishment of the Benghazi Select Committee. By May 2, 2014 -- 20 months after the attack -- Fox had devoted 1,098 segments to Benghazi, with 97 percent of its congressional and administration interviews featuring Republicans. In fact, House Select Committee Chairman Trey Gowdy (R-SC) repeatedly used Fox News as a platform to push speculation and false claims about Benghazi. And Fox chief intelligence correspondent Catherine Herridge bragged that Fox News helped spur the House investigation.

    Right-wing media have repeatedly pushed conspiracy theories in order to scandalize the Obama administration’s response to the Benghazi attacks. Conservative media have claimed to have uncovered multiple “smoking gun[s]” proving that former Secretary of State Hillary Clinton and the Obama administration committed wrongdoing in responding to the attacks. By May 2, 2014, Fox had compared Benghazi to Iran-Contra, Watergate, and other controversial actions by the Nixon administration 120 times.  And conservatives continue to promote the false claim that the Obama administration issued a “stand down” order to soldiers responding to the Benghazi attacks.

    Right-wing media continue to fuel the Benghazi dumpster fire in an effort to hurt Hillary Clinton, and conservative Republicans seem all too happy to use the Benghazi Select Committee to investigate the right-wing media’s theories.

  • As Polls Show Rising Support To Confirm SCOTUS Nominee, Wash. Post Lauds "Remarkably Successful" Opposition

    ››› ››› ZACHARY PLEAT

    The Washington Post credulously called the efforts by the discredited conservative group Judicial Crisis Network (JCN) to prevent the confirmation of Supreme Court nominee Judge Merrick Garland "remarkably successful." But polls show the general public is increasingly at odds with JCN's position. Indeed, just last week the Post reported that the results of a new poll was evidence that "Democrats are winning the message war over Garland." The Post promoted the notion of JCN's success in an interview with chief counsel Carrie Severino, who was given a platform to rehash debunked smears about Garland's judicial record on guns and government regulations.

  • Fox Está Usando Un Índice De Seguridad Nacional Descartado Para Levantar Miedos Anti-Inmigrantes

    Blog ››› ››› OLIVIA KITTEL English language version

    Fox News demostró su tendencia a infundir temores anti-inmigrantes cuando recientemente aprovechó un reporte de que el Departamento de Seguridad Nacional puso fin a un programa de seguridad fronteriza que en realidad nunca fue implementado -- y fue desechado debido a preocupaciones de que llevaría a los medios a emitir alarmas sin fundamento. Fox usó las noticias para infundir temores sobre "ilegales entrando al país".

    De acuerdo a la Associated Press, el Departamento de Seguridad Nacional (DHS por sus siglas en inglés) desechó una propuesta para un programa que nunca fue implementado y que consistía en el uso de un índice basado en colores para medir la seguridad fronteriza. El programa, propuesto por el personal de la agencia, habría usado un sistema de colores para señalizar las millas a lo largo de la frontera estadounidense, "donde sería más probable que la Patrulla Fronteriza captura inmigrantes ilegales". Rojo simbolizaría "alto riesgo", amarillo "riesgo mediano" y verde "bajo riesgo". El programa nunca fue implementado, y fue desechado luego de que un grupo de consultores del DHS coincidieron en que era "una sobre-simplificación de un problema muy complejo", y advirtieron que podría llevar a figuras mediáticas a sensacionalizar los temas de seguridad fronteriza y a "producir historias engañosas sobre una frontera fuera de control".

    Los consultores del DHS explicaron que debido a que el programa mediría la seguridad fronteriza en solamente "tres grandes canastas" (rojo, amarillo y verde) -- y debido a que dos de las canastas pueden interpretarse como indicadoras de seguridad laxa -- "reporteros sedientos de titulares que llamen la atención" podrían hacer uso del índice para provocar reportes amarillistas e infundir temores de que hay una "frontera fuera de control".

    Los presentadores de Fox News inmediatamente aprovecharon el anuncio del DHS para hacer precisamente eso. En la edición del 22 de abril del programa de Fox News Fox & Friends, la presentadora Heather Nauert repetidamente infundió temores sobre “inseguridad fronteriza”, diciéndole a sus televidentes "acostúmbrense a ... ilegales entrando al país" porque el personal del DHS desechó el “índice de colores” representando la seguridad fronteriza “mientras ustedes dormían”. El reporte de Nauert fue acompañado por imagenes en la pantalla mostrando grandes números de inmigrantes cruzando la frontera y escalando una pared; dijo que la audiencia debería "acostumbrarse a este tipo de escenas":

    Fox tiene una larga historia de infundir miedos anti-inmigrantes sin fundamento alguno para crear la falsa impresión de que "la inmigración ilegal se ha disparado a niveles sin precedente" cuando en realidad, varios estudios demuestran que la inmigración ilegal se encuentra ahora "a sus niveles más bajos desde 2003" y que ha ido declinando continuamente desde 2008. La AP notó que las capturas por parte de la Patrulla Fronteriza han disminuido a su cifra más baja en 44 años, y aunque este número no necesariamente cuenta la historia completa, puede indicar que "la frontera está relativamente segura".

  • Fox’s Latest Anti-Immigrant Alarmism Sensationalizes A DHS Program Scrapped Over Concerns It Would Fuel Media Misinformation

    Blog ››› ››› OLIVIA KITTEL Versión en español

    Fox News’ latest round of anti-immigrant fearmongering seizes on a report that the Department of Homeland Security ended a border security program that was never actually implemented – and was scrapped based on concerns it would baselessly fuel media fearmongering. Fox used the news to stoke fears about “illegals crossing into this country.”

    According to the Associated Press, the U.S. Department of Homeland Security (DHS) scrapped a proposal for a never-initiated program to use a color-coded index system to measure border security. The program, proposed by agency staff, would have used a color system to measure miles along the U.S. border “where the Border Patrol was likely to capture illegal immigrants.” Red would indicate “high risk,” yellow “medium risk,” and green “low risk.” The program was never implemented, having been scrapped after DHS consultants agreed it was “‘an oversimplification of a very complex problem,’” and warned it could lead media figures to sensationalize border security and “produce misleading stories of an out-of-control border.”

    DHS consultants explained that because the program would measure border security in just “‘three large baskets,’” (red, yellow, and green) -- and because two of the baskets could be interpreted as indicating poor security -- “reporters with an appetite for eye-catching headlines” could use the index to fuel sensational, fearmongering reports of an “out-of-control border.”

    Fox News hosts immediately seized on the DHS announcement to do just that. On the April 22 edition of Fox News’ Fox & Friends, anchor Heather Nauert repeatedly stoked fears of “border insecurity,” telling viewers to “get used to … illegals crossing into this country” because DHS officials scrapped the “color-coded bored index” “while you were sleeping.” Nauert’s report accompanied on-screen graphics of immigrants crossing the border in large numbers, and scaling a wall; she said viewers should “get used to scenes like this”:

    Fox has a long history of baselessly stoking anti-immigrant fears to create the false “impression that illegal immigration has soared to unprecedented levels” when in reality, multiple studies show that illegal immigration is “now at its lowest level since 2003” and that it has been declining steadily since 2008. The AP noted that Border Patrol apprehensions fell to a 44-year low last year, and though that number does not give a complete picture, it may indicate that “the border is relatively secure.”

  • Koch-Backed NFIB Smears Merrick Garland As A Radical With Dishonest “Scorecard” Attacking His Judicial Rulings

    Blog ››› ››› TIMOTHY JOHNSON

    The National Federation of Independent Business (NFIB) -- a Koch-backed front group that is opposing the nomination of Merrick Garland to the Supreme Court -- released a misleading “scorecard” on Garland’s rulings as a judge on the D.C. Circuit, claiming that Garland is not “moderate” because he supposedly sides too often with federal agencies to the detriment of business interests.

    But what NFIB fails to mention in its “scorecard” is that many of the decisions involving federal agencies that NFIB has selected for criticism -- namely the Environmental Protection Agency (EPA), Department of Labor (DoL), and National Labor Relations Board (NLRB) -- were unanimous rulings where Garland was often joined by fellow D.C. Circuit judges appointed by Republicans.

    While claiming to speak for small businesses, NFIB is actually a front group that has received millions of dollars from the Koch brothers network and other large corporate interests, and its opposition to Garland is part of a campaign against environmental, labor, and healthcare policies that most small businesses support.

    On April 12, NFIB released a “judicial scorecard” purporting to analyze Garland’s career as a judge on the D.C. Circuit. The group promoted its “scorecard” with a press release that asserted Garland’s judicial record indicates he “would overwhelmingly rule in favor of the government, unions, and environmental groups at the expense of small businesses.” According to an NFIB official quoted in the press release, “When you look at Judge Garland’s record on the bench, it is absolutely impossible to conclude that he is anywhere near a moderate."

    But NFIB’s attempt to scandalize Garland’s record, which is widely viewed as moderate, dishonestly omits important context.

    According to a Media Matters analysis of the 35 cases cited by NFIB concerning Garland’s judicial opinions on the EPA, DoL, and the NLRB -- issues highlighted as the most important in NFIB’s press release and classified as “wins” for the government by the NFIB -- judges appointed by Republicans were on the same side as Garland in 28 out of 35 -- or 80 percent -- of the cases.

     

    In fact, in 17 of the 35 EPA, DoL, and NLRB cases NFIB complains about in its scorecard, Garland wrote the majority opinion for three-judge panels that were composed of him and two judges appointed by Republicans. In only one of the 35 cases did Garland write a majority opinion for a panel composed entirely of judges appointed by Democrats.

    NFIB’s attempt to scandalize Garland’s judicial opinions for siding with government agencies more often than not also ignores the longstanding Chevron Deference doctrine, which “raised the issue of how courts should treat agency interpretations of statutes that mandated” agency action, where the “Supreme Court held that courts should defer to agency interpretations of such statutes unless they are unreasonable” -- meaning that there is nothing unusual about agencies often prevailing against challenges to their interpretation of law.

    Below, Media Matters provides the context to the cases NFIB attempts to scandalize with its scorecard, demonstrating how a strong majority of the EPA, DoL, and NLRB cases NFIB cites to claim Garland is not “moderate” involved Garland’s agreement with Republican appointee judges:

    Environmental Protection Agency

    The NFIB scorecard suggests that Garland has been overly deferential to the EPA by claiming that the agency “wins 94% of cases” before Garland, citing eight EPA “wins” versus one “split decision.”

    The scorecard does not mention that in six of the EPA’s “wins,” Garland was in agreement with at least one Republican-appointed judge. NFIB’s scorecard also doesn’t tell the full story or misleads on the other two cases it cites.

     

    The NFIB scorecard includes the 1999 decision American Trucking Ass'n v. EPA. Garland did not actually participate in the ruling in this decision, so it does not merit inclusion in NFIB’s scorecard. Instead, Garland later joined several judges in voting in favor of rehearing the case en banc before the entire D.C. Circuit. Legal scholars have said a vote to rehear a case en banc is not a ruling on the merits of the case, and as a matter of law, does not signify a “win” for the EPA, although the NFIB scorecard baselessly claims that “Garland would have ruled for EPA.”

    The scorecard also includes the 2002 decision American Corn Growers Ass'n v. EPA. Garland issued an opinion concurring and dissenting in part with the majority opinion, which was issued per curium on behalf of a panel with two Democratic appointees and one Republican appointee. In his opinion, Garland noted that his concurrence applied to “most of” the majority opinion, which included the Republican-appointed judge.

    Of the six cases cited by NFIB that could actually be reasonably characterized as EPA “wins," Garland was joined in his opinion by at least one Republican appointee every time:

    • In Allied Local and Regional Manufacturers Caucus v. EPA, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Ginsburg (Reagan appointee) and Tatel (Clinton appointee).
    • In Appalachian Power Co. v. EPA, a per curium opinion authored by Garland and Judge Wald (Carter appointee) was joined by Henderson (H.W. Bush appointee).
    • In Cement Kiln Recycling Coalition v. EPA, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Henderson (H.W. Bush appointee) and Randolph (H.W. Bush appointee).
    • In Chamber of Commerce of U.S. v. EPA, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Henderson (H.W. Bush appointee) and Brown (W.Bush appointee).
    • In National Association of Home Builders v. EPA, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Rogers (Clinton appointee) and Williams (Reagan appointee).
    • In Utility Air Regulatory Group v. EPA, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Rogers (Clinton appointee) and Kavanaugh (W. Bush appointee). Kavanaugh also filed a separate concurring opinion.

    Department of Labor

    The NFIB scorecard suggests that Garland has been overly deferential to the DoL by claiming that the agency “wins 87% of cases” before Garland, citing eight DoL “wins” versus two “losses.”

    The scorecard does not mention that in six of the DoL’s “wins,” Garland was in agreement with at least one Republican appointee judge.

     

    Here are the Republican appointees who joined Garland’s opinions in favor of DoL in six of cases cited by NFIB:

    National Labor Relations Board

    The NFIB scorecard suggests that Garland has been overly deferential to the NLRB by claiming that the independent agency “wins 78% of cases” before Garland, citing 19 NLRB “wins” versus five “losses” and one “split decision.”

    The scorecard does not mention that in 16 of the NLRB’s “wins,” Garland was in agreement with at least one Republican appointee judge. In the other three cases, FedEx Home Delivery v. NLRB, Northeast Bev. Corp v. NLRB, and Ross Stores, Inc. v. NLRB, the NFIB scorecard doesn’t tell the full story -- in all three cases Garland only partially dissented, agreeing in part with his Republican-appointed colleague's majority ruling.

     

    Here are the other 16 cases cited by NFIB where at least one Republican appointee agreed with Garland’s decision in favor of the NLRB:

    • In Assoc. of Civ. Tech., Puerto Rico Army v. FLRA, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Tatel (Clinton appointee) and Griffith (W.Bush appointee).
    • In Antelope Valley Bus Co., Inc. v. NLRB, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Tatel (Clinton appointee) and Williams (Reagan appointee).
    • In Ark Las Vegas Restaurant Corp. v. NLRB, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Henderson (H.W. Bush appointee) and Randolph (H.W. Bush appointee).
    • In Bally’s Park Place, Inc. v. NLRB, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Sentelle (Reagan appointee) and Ginsburg (Reagan appointee).
    • In Ceridian Corp. v. NLRB, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Sentelle (Reagan appointee) and Griffith (W. Bush appointee).
    • In Dean Transportation, Inc. v. NLRB, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Henderson (H.W. Bush appointee) and Randolph (H.W. Bush appointee).
    • In Flying Food Group, Inc. v. NLRB, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Henderson (H.W. Bush appointee) and Kavanaugh (W.Bush appointee).
    • In Halle Enterprises, Inc. v. NLRB, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Sentelle (Reagan appointee) and Tatel (Clinton appointee).
    • In ITT Industries, Inc. v. NLRB, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judge Randolph (H.W. Bush appointee) and Judge Roberts -- a Bush appointee who is now Chief Justice of the Supreme Court.
    • In Lee Lumber and Bldg. Material Corp. v. NLRB, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Sentelle (Reagan appointee) and Rogers (Clinton appointee). Sentelle also filed a separate concurring opinion.
    • In Mohave Elec. Co-op, Inc. v. NLRB, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Ginsburg (Reagan appointee) and Henderson (H.W. Bush appointee).
    • In Pacific Bell v. NLRB, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Ginsburg (Reagan appointee) and Williams (Reagan appointee).
    • In Pacific Coast Supply, LLC v. NLRB, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Griffith (Bush appointee) and Kavanaugh (Bush appointee).
    • In Shamrock Foods Co. v. NLRB, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Henderson (H.W. Bush appointee) and Tatel (Clinton appointee).
    • In Spectrum Health -- Kent Community Campus v. NLRB, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Henderson (H.W. Bush appointee) and Griffith (Bush appointee).
    • In Spurlino Materials, LLC v. NLRB, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Williams (Reagan appointee) and Randolph (H.W. Bush appointee).

    Charts by Oliver Willis. 

  • Fox Pushes Conspiracy That Obama Is Protecting Clinton On Emails Due To “Personal Conflict”

    Blog ››› ››› THOMAS BISHOP

    After months of a coordinated smear campaign against former Secretary of State Hillary Clinton’s use of a private email account during her tenure at the State Department, Fox News is now suggesting that President Obama may be protecting Clinton from criminal charges due to a “personal conflict” because he exchanged emails with her over her private server. Fox asserted that Obama was protecting Clinton while admitting that the investigation has found that none of the emails between the two contained classified information.

    On the April 11 edition of The Kelly File, Fox chief intelligence correspondent Catherine Herridge conducted a supposed “fact-check” of Obama’s comment, “I continue to believe [Hillary Clinton] has not jeopardized America’s national security,” which he made during an April 10 interview on Fox News Sunday. Herridge scandalized Obama’s remarks by suggesting that the president should have declined to comment on the investigation and questioning whether Obama may have “a personal conflict” due to reports that he exchanged as many as 19 emails with Clinton.

    In Herridge’s report, she admitted that the emails between the president and Clinton “don’t contain classified information,” but she also included commentary from former Bush administration Assistant Attorney General Thomas Dupree, who suggested that Obama has a “personal conflict” in the investigation.

    Fox News has been on the offensive since the beginning of the FBI’s investigation into Clinton’s use of a private email server during her time as secretary of state, baselessly claiming that her private email use constituted a crime and that she negligently transmitted top secret information that put lives at risk.

    Legal experts have consistently explained that “there doesn't seem to be a legitimate basis for any sort of criminal charge against” Clinton. In a March 20 column for the American Prospect, University of Michigan law and sociology professor and former Department of Homeland Security classification expert Richard Lempert explained that after analyzing Clinton’s conduct and “[b]ased on what has been revealed so far, there is no reason to think that Clinton committed any crimes with respect to the use of her email server, including her handling of classified information.” 

    In addition to the lack of evidence of criminal wrongdoing by then-Secretary of State Clinton, a thorough State Department investigation concluded that past secretaries of state -- including Colin Powell and Condoleezza Rice -- and their immediate staff also "handled classified material on unclassified email systems."

    Herridge has also repeatedly reported unreliable information provided by unnamed sources in order to attack Clinton. In January, Herridge boosted the reportedly false claim that up to 150 FBI agents were assigned to the investigation on Clinton’s server. On March 29, The Washington Post issued a correction for its own report that nearly 150 agents were involved, noting that there is actually less than 50. NBC News later reported that the number of agents assigned to the case was “about 12,” with a former FBI official quoted as saying, "You need an act of terrorism to get 50 agents working on something." Herridge also cited anonymous sources who accused Clinton of gross negligence and violation of the espionage statutes in her handling of purportedly “classified” or “top secret” information, a claim experts have repeatedly called into question. 

     

  • After Obama Says He Is Not Influencing Email Investigation, Conservative Media Claim President Is “Tipping The Scale” For Clinton

    ››› ››› JULIE ALDERMAN

    Right-wing media, including several Fox figures, accused President Obama of “tipping the scales” in favor of Hillary Clinton in the ongoing investigation into her email practices after Obama responded to a question posed by Fox’s Chris Wallace about his influence in the matter. During a Fox News Sunday interview, Obama said he guaranteed that “there is no political influence” in the FBI’s investigation into Clinton’s private email server, and right-wing media responded by criticizing Obama for even answering the question.

  • Politico: Precedent Is On Clinton's Side Regarding Email Investigation

    Blog ››› ››› MEDIA MATTERS STAFF

    Politico’s Senior White House Reporter Josh Gerstein reviewed “dozens of federal indictments for mishandling of classified records” and then reported that an indictment of former Secretary of State Hillary Clinton for her use of a private email server is “highly unlikely.” He also noted that the cases that did lead to an indictment “almost always” included "a deliberate intent to violate classification rules" and “aggravating circumstances that don’t appear to be present in Clinton’s case.”

    Right-wing media have repeatedly attempted to muddy the facts surrounding the investigation into Democratic presidential candidate Clinton’s private email server by falsely comparing the case to that of Gen. David Petraeus, speculating on the implications or hidden motives of every new turn in the investigation, and even suggesting that the Department of Justice would handle the investigation “on political grounds, not legal grounds.”

    In the April 11 article, Gerstein wrote that “former prosecutors, investigators and defense attorneys generally agree that prosecution for classified information breaches is the exception rather than the rule, with criminal charges being reserved for cases the government views as the most egregious or flagrant.” Moreover, Gerstein highlighted interagency disputes over what is considered classified in Clinton’s emails. He noted that the State Department “has publicly disputed some of the intelligence community’s claims that information in Clinton’s account was highly sensitive,” and that it “seems doubtful that prosecutors would pursue charges if State Department officials are likely to contradict an intelligence agency’s assessment about the sensitivity of the records.” From the April 11 article:

    It’s the most explosive question of the 2016 presidential campaign: Could Hillary Clinton get indicted for her handling of sensitive materials through her home email server?

    A POLITICO review of dozens of recent federal investigations for mishandling of classified records suggests that it’s highly unlikely — but not impossible.

    The examination, which included cases spanning the past two decades, found some with parallels to Clinton’s use of a private server for her emails, but — in nearly all instances that were prosecuted —aggravating circumstances that don’t appear to be present in Clinton’s case.

    The relatively few cases that drew prosecution almost always involved a deliberate intent to violate classification rules as well as some add-on element: An FBI agent who took home highly sensitive agency records while having an affair with a Chinese agent; a Boeing engineer who brought home 2000 classified documents and whose travel to Israel raised suspicions; a National Security Agency official who removed boxes of classified documents and also lied on a job application form.

    Clinton herself, gearing up for her FBI testimony, said last week that a prosecution is “not gonna happen.” And former prosecutors, investigators and defense attorneys generally agree that prosecution for classified information breaches is the exception rather than the rule, with criminal charges being reserved for cases the government views as the most egregious or flagrant.

    […]

     

    In addition, attorneys noted that mishandling of diplomatic information that doesn’t have an obvious national security component to it probably couldn’t be prosecuted under the Espionage Act, which is the felony statute most widely cited in discussions of the potential legal fallout of the Clinton email flap.

    So, the real focus is likely to be a narrower set of messages: 65 deemed “Secret” and 22 deemed “Top Secret.” Because of the nature of email, the actual amount of highly sensitive information is more limited than those numbers suggest. The 22 “Top Secret” messages consist of seven “threads,” presumably with the same classified subject matter discussed in each email in the thread.

    Using some of those exchanges to build a criminal case would also run into another challenge: the State Department has publicly disputed some of the intelligence community’s claims that information in Clinton’s account was highly sensitive. It seems doubtful that prosecutors would pursue charges if State Department officials are likely to contradict an intelligence agency’s assessment about the sensitivity of the records.

    […]

    However, some experts on national security law said Clinton’s intent is far more important than the volume of emails at issue or how long they spent on her server. They noted that none of the information was marked classified and that there’s no indication she was trying to send classified information to anyone not authorized to look at it.

    “The law treats the intentional disclosure of one piece of classified information to someone not entitled to receive it far more seriously than the accidental communication of dozens of pieces of classified information to people who were not supposed to get it,” American University law professor Stephen Vladeck said, citing explicit and implicit requirements that a person charged with violating the laws relating to classified information know that the information they mishandled was classified.

    […]

    Several experts told POLITICO that in light of the legal obstacles to a case and the Justice Department’s track record in such prosecutions they are confident Clinton won’t face charges.

    “Based on everything I’ve seen in the public media, not only don’t I see the basis for criminal prosecution, I don’t even see the basis for administrative action such as revoking a clearance or suspending it,” said Leonard, the former director of the Information Security Oversight Office.

    “Looked at as a potential criminal case, this would be laughed out of court,” said William Jeffress, a Washington attorney on the defense team for former Bush White House aide Scooter Libby during his trial for lying in a leak investigation. “There hasn’t been any case remotely approaching a situation where someone received emails that were not marked classified, who simply receives them and maybe replies to them and a criminal prosecution is brought,” Jeffress said.