Josh Gerstein

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  • 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.

  • Politico badly wants to waste your time

    Blog ››› ››› JAMISON FOSER

    You'd think Politico would have something more important to splash across their front page than a write up of some new book nobody cares about. But no:

    Now, first of all: by "Monica's back," you might assume Politico means Lewinsky has written a book, or launched a speaking tour or something. No. Politico means that several months ago, Lewinsky gave a written comment to the author of a book that is coming out soon. Uh ... a little less "newsy" when you put it that way, isn't it?

    Next, you may wonder how something can be the "first definitive history." How can there be more than one definitive history?

    But then, if you're silly enough to read the article -- as, unfortunately, I was -- you see junk like this:

    Confirmation of a long-rumored romantic affair between Clinton and McDougal, an Arkansas woman who spent 18 months in jail for refusing to answer questions from Starr's prosecutors before a grand jury, and later received a presidential pardon from Clinton. Gormley writes he is now certain "some intimate involvement did occur," though he will not say precisely how he knows it to be true.

    Uh, Politico? That's totally not what the word "confirmation" means.

    It gets dumber from there, with Politico breathlessly revealing that Robert Ray wanted to indict Bill Clinton (we already knew that) and that Ken Starr's office prepared a draft indictment of Hillary Clinton (knew that, too) and ... Well, who cares, really?

    If the article has any redeeming feature, it is this:

    Clinton retorts: "They were disgraced and he [Hyde] knows it. They ran a partisan hit job run by a bitter right-winger, Henry Hyde, who turned out to be a hypocrite on the personal issues....Yeah I will always have a asterisk after my name but I hope I'll have two asterisks: one is 'They impeached him," and the other is 'He stood up to them and beat them and he beat them like a yard dog.'"

    The "them" in question has, of course, has always included the media that fanned the flames of impeachment. And they're still not over it.

  • Memory lapse: Politico asks, "What if Bush had done" things he actually did

    ››› ››› MORGAN WEILAND

    In support of his dubious argument that the press is treating President Obama more favorably than President Bush, Politico's Josh Gerstein falsely suggested that unlike David Axelrod, Karl Rove was never involved in national security meetings. In addition, Gerstein advanced the falsehood that the Bush administration did not attack MSNBC and other news outlets.

  • The dumbest article you'll read all week (Yes, it's from Politico)

    Blog ››› ››› JAMISON FOSER

    Under the header "What if George W. Bush had done that?" Politico's Josh Gerstein indulges the right-wing persecution complex by arguing Barack Obama is benefitting from friendlier media coverage than his predecessor got.

    Are you kidding me?

    George W. Bush wanted to go to war in Iraq, so he made up some phony reasons for it. And the media, rather than scrutinizing his case for war, helped him along. That was a damn war. That alone pretty much ends the discussion. (Gerstein gives Iraq a passing mention in paragraph 16.)

    But lets take a closer look at Gerstein's silliness.

    He opens with mention of Obama making a "four-hour stop in New Orleans, on his way to a $3 million fundraiser." Apparently, Gerstein wants us to think that seeming indifference towards, and botched handling of, a deadly natural disaster while it is still unfolding is no worse than stopping at the site of the disaster for four hours ... four years later.

    Another Gerstein example: "Freezing out a TV network." Check.

    Another: "Doing more fundraisers than the last president. More golf, too."

    Bush spent 487 days at Camp David, and 490 days at his ranch in Crawford -- where, among other things, he neglected to read a certain Presidential Daily Briefing entitled "Bin Laden Determined to attack Inside the U.S." A month later, Bin Laden did. I trust Gerstein will let us know when Obama blows off a similar memo during a golf outting.

    Gerstein:

    Conservatives look on with a mix of indignation and amazement and ask: Imagine the fuss if George W. Bush had done these things?

    And quickly add, with a hint of jealousy: How does Obama get away with it?

    "We have a joke about it. We're going to start a website: IfBushHadDoneThat.com," former Bush counselor Ed Gillespie said. "The watchdogs are curled up around his feet, sleeping soundly. ... There are countless examples: some silly, some serious."

    George W. Bush's predecessor was hounded for years over a land deal in which he lost money, and impeached -- due in no small part to media hyperventilation -- because he lied about an affair. Bush lied about a war and the press helped him do it.

    For a reporter to pretend that George W. Bush has gotten tougher treatment from the press than other presidents is laugh-out-loud absurd.

    Gerstein:

    Media observers note that the president often gets kid-glove treatment from the press, fellow Democrats and, particularly, interest groups on the left - Bush's loudest critics, Obama's biggest backers.

    There's only one word for that: Stupid.

    Seriously, it's a newsworthy phenomenon that Democrats and liberal interest groups were harder on Bush than they have been on Obama? Uh, Josh? What about Republicans and conservative interest groups? Have they, by chance, been tougher on Obama than they were on Bush?

    (The Atlantic's Marc Ambinder, by the way, has argued "the left has held Barack Obama's feet to the fire way more than the right ever did to George W, Bush." That concept is missing from Gerstein's little essay.)

    Don't they have editors at Politico?

  • Latest conservative attack on Obama Nobel: Prize is "unconstitutional"

    ››› ››› JOCELYN FONG

    Following the Nobel Committee's announcement that it would award the Nobel Peace Prize to President Obama, conservative media figures have launched numerous attacks on Obama and the award, asserting, for instance, that Obama won the prize "for trashing America," in Sean Hannity's words, or that the prize is an "affirmative action Nobel," as Pat Buchanan and RedState's Erick Erickson asserted. In the latest attempt to discredit Obama's Nobel Prize, conservatives have claimed that his acceptance of the award violates the emolument clause of the Constitution, despite the fact that previous sitting officials have accepted foreign awards in the past.