Clinton’s reckless and possibly criminal quest for secrecy

Hillary Clinton’s private email account, the only email account she used for State Department business, continues to spark commentary on the internet. Attorney Shannen Coffin wonders whether Clinton committed a felony. He points out that federal criminal law makes it a felony when any custodian of official government records “willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same.” The crime is punishable by up to three years in prison.

As Coffin says, “setting up a shadow e-mail server to conduct all official business as secretary of state is an action plainly undertaken for the purpose of evading federal-records laws.” By setting one up, Clinton was able to conceal records that both Congress and private citizens demanded to review. Hence the possibility that Clinton committed a felony.

Meanwhile, Andy McCarthy considers whether Clinton violated federal embezzlement law. Embezzlement, he notes, generally refers to the theft of money. However, federal law extends the concept to cover government records and other property as well.

Specifically, section 641 of the federal penal code, Title 18, makes it a crime, punishable by up to 10 years of imprisonment, for anyone to embezzle, steal, purloin or knowingly convert for the use of herself or others “any record … or thing of value of the United States or of any department or agency thereof.” It similarly criminalizes the receipt, concealment or retention of such embezzled or purloined government records. Under federal law, emails constituting government business conducted by government officials are government records.

This statute seems better to describe what former Bill Clinton aide Sandy Berger did at the National Archives than what Hillary has done. But maybe a good prosecutor could make a case of embezzlement against the former Secretary of State. Clearly, it isn’t going to happen, though.

McCarthy adds that the Espionage Act could also come into play if some of Clinton’s emails contain classified information pertaining to national security. It seems highly probable that some of Clinton’s emails did. But again, don’t hold your breath waiting for Hillary to be prosecuted. These sorts of prosecutions are for saps like General Petraeus, not national icons like Mrs. Clinton.

Possible criminal violations aside, Clinton’s conduct seems clearly to raise national security concerns. Dustin Volz of the National Journal reports that “Clinton’s decision to forgo either a government or commercial email account is stoking concerns that the nation’s former top diplomat may have been reckless about securing her communications.” Volz explains:

The Web domain, which Clinton used exclusively to conduct official business during her four years heading the State Department, was run through an Internet service registered to a family home in Chappaqua, N.Y., according to the Associated Press.

“The task of keeping a mail-server secure isn’t one even the average [system administrator] is up to. I’d be shocked if her server was even remotely secure,” said Nate Cardozo, a staff attorney with the Electronic Frontier Foundation.”Clinton’s decision to forgo the State Department’s servers is inexplicable and inexcusable.

Bart Gellman, who was heavily involved in the Edward Snowden affair and thus may know a thing or two about secure and non-secure email servers, has tweeted: “I don’t care who the Clintons hired: it is not possible for a high value target to secure a home-managed email server.”

In this instance, moreover, it appears that Clinton’s consultants set up the server with a misconfigured encryption system, which left it vulnerable to hacking. So says Alex McGeorge, head of threat intelligence at Immunity Inc., a Miami Beach-based digital security firm. “There are tons of disadvantages of not having teams of government people to make sure that mail server isn’t compromised; its just inherently less secure,” McGeorge added.

Moreover, Clinton reportedly was warned of precisely this danger. She chose to ignore these warnings. As this report by Bloomberg puts it, Clinton’s email system was built for privacy, not for security.

To Clinton, privacy was a political imperative. Security was not. Thus, it took a backseat.

Is this “Eric Hoteham”?

This morning the AP identified one “Eric Hoteham” as the mysterious gentleman who registered the Internet address for Madam Hillary’s private email server at the Clintons’ Chappaqua home. That would be the server that housed Madam Hillary’s official State Department emails “as early as August 2010.” (The AP story doesn’t sort out other details that must have applied to her official business email before then.) This morning I thought that Mr. “Hoteham” must be a close relative of someone named “Rodham.”

As of this morning, the AP tactfully described Mr. Hoteham as of “mysterious identity.” The AP reporters have silently updated their story to add a little color to the identity of the mysterious Mr. “Hoteham,” but Brent Scher really zeroes in on a former Clinton flack named Eric Hothem. Scher’s Free Beacon article reasonably asks “Is the mysterious “Eric Hoteham’ actually long-time Clinton adie Eric Hothem?”

Good question! I think we’ll find out soon enough. In the meantime, pull up a chair and get out the popcorn.

On Hillary’s Emails, Marie Harf Struggles But Hillary Explains

Hillary Clinton’s personal email system is the big story of the day. We have belatedly learned that Hillary had no official State Department email account during her tenure as Secretary. Instead of using the government’s email system, she had a server installed in her home and administered her own private email account. Some of her aides also had accounts on Hillary’s private system, which used the domain name

At the State Department, spokeswoman Marie Harf struggles to explain to reporters why this was all kosher. To be fair, the reporters are not exactly incisive, either. The point that Harf finally brings out is that State Department employees have two separate email systems, one classified and one unclassified. But Hillary didn’t use either of them, which means that either 1) in four years, the Secretary of State never sent or received any emails that were or should have been classified, which is preposterous, or 2) Hillary has (or had) an unknown number of classified emails on her personal home server, which presumably violates various laws and regulations. Here is the ineffable Ms.Harf:

Actually, though, there isn’t much of a mystery. At a private party that happened to be caught on tape, Hillary explained–back in 2000!–that she had stopped using email because of “all the investigations.” Start at around the 3:30 mark:

As Secretary of State, Hillary came up with an even better alternative: use email, but keep it off the government servers so you can destroy anything that might be inconvenient, and control what gets produced if those troublesome investigations should resume.

Dem Filibuster Succeeds, House Gives Up On Defunding Executive Amnesty

The news was so heavy yesterday that I held off on commenting on the House vote to fund the Department of Homeland Security through the end of the fiscal year, with no exclusion of the administration’s executive amnesty. Some observations on the vote:

1) The roll call was 257 to 167, with all Democrats voting “yes,” but only 75 Republicans. This has prompted speculation about Boehner’s standing with his caucus. I doubt, however, that a serious challenge to his leadership will be mounted any time soon.

2) The practical urgency of defunding executive amnesty is diminished by the Texas federal court’s preliminary injunction barring implementation of the amnesty. I think it unlikely that a stay will be imposed on the court’s order by the court of appeals; the remaining question will be whether the scofflaw Obama administration will simply disregard it, and proceed in violation of the order. I don’t think that is likely, either. If those assumptions are correct, the defunding is arguably moot. See, however, Senator Jeff Sessions’ comments on the obligations of Congress, which are quoted below.

3) The bottom line here is that the Democrats’ Senate filibuster succeeded. The House funded DHS through the end of the fiscal year, and Mitch McConnell tried repeatedly to bring the House bill up for a vote, but was stymied by the Democratic filibuster each time. It was the filibuster that prevented DHS from being funded, yet the press generally blamed Republicans for the impending shutdown. This makes no sense, but if those are the rules, Republicans should remember them next time they are in the minority. In the meantime, this episode has added steam to the “abolish the filibuster” sentiment now growing among Republicans.

In anticipation of the House vote yesterday, Jeff Sessions released this statement. I find what he says to be pretty much inarguable:

The Democratic Party has been completely unified in its defense of the President’s amnesty in the face of overwhelming public opposition—and in the face of the President’s own repeated declaration that his conduct was illegal.

They voted in unison, messaged in unison, and their outside allies have launched third-party attacks against Republicans.

As a result, our Constitution continues to be eroded, our immigration system continues to slide into anarchy, and our constituents continue to suffer the debilitating loss of their jobs and wages.

Essential to any sovereign nation is the enforcement of its borders, the application of uniform rules for entry and exit, and the delivery of consequences for individuals who violate our laws. President Obama has nullified those laws, rules, and borders, and replaced those consequences with rewards.

The President’s decree provides illegal immigrants with work permits, trillions in Social Security and Medicare payments, and billions in free cash tax credits—all benefits explicitly rejected by Congress. This takes jobs, benefits, and work opportunities directly from struggling and forgotten workers.

The will of the American people cannot be forever denied. Republicans will have to come to realize that it falls on their shoulders to give voice to the just demands of the American people for a lawful system of immigration that serves their interests, defends their jobs, protects their security.

Nor can we allow the President to dismantle the constitutional powers of Congress, ceding our status as a coequal branch, on the hope the Judiciary intervenes to restore some fraction of that lost authority. When it comes to defending our sovereignty there is no “moving on.” Now is not the time for recrimination; now is the time for renewed determination. What motivates and excites a small group of open-borders billionaires has no connection to the hearts and lives of the working people of this country. They have been silenced for too long. Those who think this fight is over could not be more mistaken; it is only beginning. When the power of the American people is finally leveraged, people will be astonished by the results.

Note the echo of the great John Paul Jones, a bit of inspiration on a day when we badly need it.

King v. Burwell: a discouraging mid-argument report [UPDATED] [WITH FINAL UPDATE]

Eric Citron at Scotusblog provides a mid-argument report on King v. Burwell, the vital Obamacare case being heard by the Supreme Court today. According to Citron, the petitioners, who argue that subsidies are not available on the federal exchange faced a troubling question from Justice Kennedy, on whose vote the case may very well turn.

Kennedy, says Citron, “expressed deep concern with a system where the statute would potentially destroy the insurance system in states that chose not to establish their own exchanges – likening this to an unconstitutional form of federal coercion.” Recall that part of the argument in favor of the view that subsidies aren’t available on the federal exchange is the idea that Congress set up Obamacare this way to induce states to establish their own exchanges. This is what Jonathan Gruber famously said.

If I understand the import of Kennedy’s questioning, he’s concerned that such a scheme might be unconstitutional. If so, then he might strain to construe the statute as not “coercing” the states to establish exchanges, and therefore not withholding subsidies to residents of states that opt not to have exchanges.

Let’s see, though, how the questioning of the government’s lawyer goes.

UPDATE: The argument that petitioners lack standing to challenge the statute has not gone well. Of note, Justice Sotomayor seemed to reject. This might mean she wants to the Court to rule on the merits because she’s confident now the government will win.

FINAL UPDATE: According to the Washington Post’s account of the oral argument, the government lawyer faced hostile questioning only from Justices Scalia and Alito. Chief Justice Roberts reportedly never tipped his hand. And, as noted above, Justice Kennedy’s questioning suggests that he more likely than not will uphold subsidies for those purchasing insurance on the federal exchange.

So Obamacare may well dodge another bullet. If so, it shouldn’t come as a major surprise. Unlike the four liberal Justices, who are basically on a political mission, the right-of-center group includes independent-minded Justices, and can’t really be considered a bloc when it comes to big cases.

Why no deal is better than Obama’s deal

I found Benjamin Netanyahu’s speech to Congress persuasive in all but one respect. I question Netanyahu’s claim that the alternative to the deal Obama seems prepared to settle for is “a better deal.”

It believe that the Iranian regime’s overriding goal is to obtain nuclear weapons. If that’s the case, Iran will not agree to a deal that significantly impedes its ability to reach this goal. It follows that the most likely alternative to a bad deal with Iran is “no deal.”

Accordingly, President Obama and his supporters have a point when they demand to know how Netanyahu intends to thwart Iran’s ambition in the absence of their deal — one that at least would permit inspections, thus perhaps improving the ability of the U.S. and Israel to know whether Iran is “breaking out” and racing towards development of nuclear bombs.

The answer to Obama’s point is that the absence of a deal doesn’t mean the absence of a strategy for preventing Iran from obtaining nukes. In fact, the absence of a deal would facilitate two approaches that hold more promise of thwarting Iran than even a decent deal.

In theory, there are three scenarios under which Iran won’t get the bomb. First, military action might prevent it. Second, the right kind of regime change might prevent it. Third, a deal might prevent it.

The first and second scenarios are the most effective because the third depends on some level of cooperation and compliance by a notoriously hostile and unreliable regime. The second scenario is preferable to the first because military action might not be entirely effective and, in any event, carries collateral risks. But the second scenario depends on events beyond our control.

If, as seems likely, Netanyahu is wrong that tougher bargaining will produce a decent deal, then his approach rules out the third scenario — a non-nuclear Iran achieved through bargaining. But Obama’s deal also rules out this scenario unless regime change occurs before the deal expires. As discussed below, this is highly unlikely.

Moreover, even during its life, the deal wouldn’t prevent an Iranian nuclear breakout. It would only give Israel and the U.S. a half year to a year (according to most estimates) to invoke the first scenario, a military response. As discussed below, the existence of the deal makes such a response by the U.S. highly unlikely.

In sum, a non-nuclear Iran cannot, in all likelihood, be achieved through bargaining.

Regime change of the right sort would almost certainly mean an end to Iran’s nuclear ambitions, provided that Obama’s deal hasn’t already caused Iran’s neighbors to develop nukes. What, then, are the prospects for such regime change?

If Iran gets out from under sanctions, the prospects are slim. The Iranian regime has survived for more than 35 years through all sorts of hardship. The absence of sanctions would relieve Iran from much hardship, making regime change highly unlikely.

A tough sanctions system would significantly increase the prospect for regime change. We can infer this from the fact that, before Obama began to lift sanctions, the Iranian economy was in sufficiently bad shape that the mullahs sought out “the Great Satan” for talks. Surely, they did so because they saw their grip on power loosening. And this, as Netanyahu pointed out yesterday, was before oil prices plummeted.

The other way in which Iran’s nuclear ambitions might be thwarted is through military action. To be optimally effective, such action would require U.S. involvement. For Israel to take such action would probably require U.S. consent if hardliners like Netanyahu lose power.

Deal or no deal, Obama isn’t going to take military action against Iran. But in two years, such action by the U.S. might well be back on the table. So might consent to an Israeli strike.

However, if the U.S. and Iran reach a deal, U.S. military action is highly unlikely, even in a “breakout” scenario. As Ray Takeyh points out, the reaction to North Korea’s atomic provocations shows that the U.S. and its international partners deal with such arms control infractions through endless mediation: “Once an agreement is signed, too many nations become invested in its perpetuation to risk a rupture.”

Absent a deal, Obama’s successor will be less constrained when it comes to taking military action against Iran and to consenting to Israeli action. This, I suspect, is one important reason why Obama is so eager to reach a deal, even a manifestly bad one.

To summarize, there are three conceivable pathways to a non-nuclear Iran. Obama’s approach relies on the least effective of them — a deal — and effectively precludes the other two. Moreover, by all accounts, the deal he’s willing to settle for contains so many concessions as to nearly forfeit its status as a conceivable pathway to thwarting Iran.

The better course is to insist on a much better deal. If that deal can’t be had, we will retain two more plausible approaches to thwarting Iran — sanctions-induced regime change and the military option.

The Obama administration was correct, then, when it stated that no deal is better than a bad deal. And Netanyahu was correct when he compellingly explained yesterday why the Obama administration’s likely deal is a bad one.

Who is Eric Hoteham? [Updated With Twitter Account]

In its excellent story this morning on the private email account Madam Hillary set up for official business during her tenure as Secretary of State, the Associated Press notes this telling detail:

It was unclear whom Clinton hired to set up or maintain her private email server, which the AP traced to a mysterious identity, Eric Hoteham. That name does not appear in public records databases, campaign contribution records or Internet background searches. Hoteham was listed as the customer at Clinton’s $1.7 million home on Old House Lane in Chappaqua in records registering the Internet address for her email server since August 2010.

The Hoteham personality also is associated with a separate email server,, and a non-functioning website,, all linked to the same residential Internet account as Mrs. Clinton’s email server. The former president’s full name is William Jefferson Clinton.

And then we have this:

In November 2012, without explanation, Clinton’s private email account was reconfigured to use Google’s servers as a backup in case her own personal email server failed, according to Internet records. That is significant because Clinton publicly supported Google’s accusations in June 2011 that China’s government had tried to break into the Google mail accounts of senior U.S. government officials. It was one of the first instances of a major American corporation openly accusing a foreign government of hacking.

Then, in July 2013, five months after she resigned as secretary of state, Clinton’s private email server was reconfigured again to use a Denver-based commercial email provider, MX Logic, which is now owned by McAfee Inc., a top Internet security company.

No word on the role of Mr. “Hoteham” in making the backup arrangements.

Trouble must be brewing if the AP goes out of its way to note:

The AP has waited more than a year under the open records law for the State Department to turn over some emails covering Clinton’s tenure as the nation’s top diplomat, although the agency has never suggested that it didn’t possess all her emails.

Twitchy has more here and elsewhere. I think this is one of those situations in which Steve Hayward would invite us to pull up a chair and get out the popcorn.

UPDATE by JOHN: We haven’t quite pinned down who Eric Hoteham is yet, but apparently he has a Twitter account. It’s pretty entertaining! Hillary deserves a whole lot more mockery, on this and many other topics.