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Sunday, November 6, 2016

Emails, Impeachment & Pre-Election Polls

Before the Election on November 8th, I wanted to explore three more topics that still seem to be generating some “buzz” as we approach one full day until Election Day.  Since I just posted a piece three days ago on Obamacare in relation to the Trump evisceration of it, I am doing what is unusual here just because it is so close to E- Day.  Not that my opinion will change many votes, but perhaps some thoughts will emerge here that should at least be considered.
Hillary’s Emails
I have written about this before, sometime ago before things had heated up (see posting for (3/8/2015 and 8/23/2015).  Here is some of what I said from that latter post:   
“While I believe that it was not a good idea for Hillary to use a private server for her State Department-related email, I also recognize… that (it was not) unusual for high-ranking officials in State and other departments to do so.  There were protocols established in the State Department (and other departments) as to what could be used or discussed while using such servers, and what could not, but those protocols were not strictly enforced nor entirely clear.  There were even disagreements as to what should and should not be 'classified.' 
The point: there is no such thing as one unqualified definition across all of government that is determinant of what is considered "secret" or "classified" because it is difficult to determine the meaning of vague terms in those definitions.  But the Republicans continue to flail away hoping you will believe this fiction.”
Wikipedia has some helpful information in summary form regarding levels of classification.
"The United States government classifies information according to the degree which the unauthorized disclosure would damage national security.”

Top Secret
"Top Secret shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security that the original classification authority is able to identify or describe." 
This is the second-highest classification. Information is classified Secret when its unauthorized disclosure would cause "serious damage" to national security.  Most information that is classified is held at the secret sensitivity level.
This is the lowest classification level of information obtained by the government. It is defined as information that would "damage" national security if publicly disclosed, again, without the proper authorization.
Those now 'hyping' the situation are focused on what might in retrospect be classified as 'secret' but may not have been so classified at the time the emails were written.  What is being missed in this whole issue is of major importance:
Who determines if something in Hillary's emails might have been "reasonably expected to cause serious damage to national security" at the time they were written?  Not the Congress, although they can investigate and criticize all they want.  Not the President, although his State Department can determine if any of their rules were violated.  Certainly not the Republican candidate for President.  Not even the FBI – they only get to make the decision as to whether their investigation is conclusive enough to request that charges be brought against the perpetrator.
In the final analysis, the Courts get to decide whether there was a reasonable expectation that exposure of certain information in those emails at the time could have caused 'serious damage' to national security (except in the case of impeachment which is discussed below).
It is obvious from the reporting engaged in so far, there is nothing but hype, innuendo and inference governing this situation to attract voter attention and to make this story seem like something huge in implication, but to date, nothing substantiates that judgment or claim.  Let us now view Director Comey’s first letter to Congressional leaders in the context of the definitions from Wikipedia, leaving aside the names of committees to whom it was addressed:

October 28, 2016:
 Dear Messrs. Chairmen:
In previous congressional testimony, l referred to the fact that the Federal Bureau of Investigation (FBI) had completed its investigation of former Secretary Clinton's personal email server. Due to recent developments, I am writing to supplement my previous testimony.
In connection with an unrelated case, the FBI has learned of the existence of emails that appear to be pertinent to the investigation. I am writing to inform you that the investigative team briefed me on this yesterday, and I agreed that the FBI should take appropriate investigative steps designed to allow investigators to review these emails to determine whether they contain classified information, as well as to assess their importance to our investigation.
Although the FBI cannot yet assess whether or not this material may be significant, and I cannot predict how long it will take us to complete this additional work, I believe it is important to update your Committees about our efforts in light of my previous testimony.

Sincerely yours,
James B. Comey
 “The ACLU released a statement noting that “As the second-highest ranked Justice Department official under John Ashcroft, Comey approved some of the worst abuses committed by the Bush administration. Specifically, the publicly available evidence indicates Comey signed off on enhanced interrogation techniques that constitute torture, including waterboarding.  
A Republican, Comey has donated about $10,000 to Republican candidates and organizations over the years, including $2,300 to John McCain in 2008 and $5,000 to Mitt Romney's 2012 campaign.”

I will leave the full-out conspiracy theories to Dr. Paul Krugman, who has tweeted some remarkable speculations about Comey’s motives.  For me, it is enough to know that Comey is a Republican who has been involved in the G.W. Bush administration, has donated to Republican candidates, and was appointed to the FBI Directorship by President Obama who has appointed other Republicans to prestigious positions (Gates at Defense) when he believed that such a display of bi-partisanship would help to produce good outcomes for the nation.  It has not done so.
I concur with the words of Eric Holder, immediate former Attorney General, who said just days ago that this was a serious breach of principles and policies that are currently in place at the Justice Department (which oversees the FBI as its investigatory arm).  He said this, in part:
“I am deeply concerned about FBI Director James B. Comey’s decision to write a vague letter to Congress about emails potentially connected to a matter of public, and political, interest. That decision was incorrect. It violated long-standing Justice Department policies and tradition. And it ran counter to guidance that I put in place four years ago laying out the proper way to conduct investigations during an election season. That guidance, which reinforced established policy, is still in effect and applies to the entire Justice Department — including the FBI.
“The department has a practice of not commenting on ongoing investigations. Indeed, except in exceptional circumstances, the department will not even acknowledge the existence of an investigation. The department also has a policy of not taking unnecessary action close in time to Election Day that might influence an election’s outcome. These rules have been followed during Republican and Democratic administrations. They aren’t designed to help any particular individual or to serve any political interest. Instead, they are intended to ensure that every investigation proceeds fairly and judiciously; to maintain the public trust in the department’s ability to do its job free of political influence; and to prevent investigations from unfairly or unintentionally casting public suspicion on public officials who have done nothing wrong.  Director Comey broke with these fundamental principles.”
And recently, reported that “A bipartisan group of nearly 100 former federal prosecutors and senior Department of Justice officials, including Attorney General Eric Holder, signed a letter expressing concerns over FBI Director James Comey’s decision to inform Congress of new emails that may or may not be relevant to Hillary Clinton’s private email server.  ‘… his unprecedented decision to publicly comment on evidence in what may be an ongoing inquiry just eleven days before a presidential election leaves us both astonished and perplexed,’ said the signatories. 
“We cannot recall a prior instance where a senior Justice Department official — Republican or Democrat — has, on the eve of a major election, issued a public statement where the mere disclosure of information may impact the election’s outcome, yet the official acknowledges the information to be examined may not be significant or new’.”
Here is my main point about the latest attempts by Trump and his followers to denigrate and bring down Hillary Clinton with the help of this misuse of FBI investigatory power (in much the same vein as Director J. Edgar Hoover used to do, especially regarding the Kennedys whom he despised).
There are several very important principles involved in accusing people of crimes (‘Hillary is a Crook -- ‘Throw her in Jail’, which Trump promised to do if elected!)  This whole trumped-up charge that something crooked has occurred with her Emails is entirely unsubstantiated, to the extent that the FB I and Comey refused to recommend to the Justice Department that formal charges be brought against Clinton in a Court of Law.  Why? Because they knew they would have no “standing” before the Court. 
In his October 28th letter to congressional leaders, Comey admits that the “FBI cannot yet assess whether or not this material may be significant.”  If that is so, he had no justification for writing that letter because there is no substantive evidence for re-opening the investigation, only speculation, and therefore an effect on the closed investigation does not exist.  That being the case, it is no wonder that Senate Minority Leader Reid and many congressional Democrats, as well as over a hundred federal prosecutors and members of the Justice Department (including Republicans) called for full disclosure of facts, and the possibility of charges against Comey of violating the Hatch Act that prohibits Public officials from influencing elections by using the powers of their office to do so.
Here is my take on the matter in relation to “standing” in the Courts:  nothing has been found in Hillary’s Emails to prove:
  • malicious intent
  • that harm has come to the nation because of any of these emails
  • that any of the criteria for classification of secrets has been substantially violated
    • No exceptionally grave damage to the national security has been caused by any of those emails
    • No serious grave damage to the national security has ever been proven to exist because of any of her emails
    • No damage whatsoever, even at the lowest levels of classification, has ever been proven to have occurred.
    • Finally, regarding any kind of civil suit, there has been nothing to indicate that any personal harm has ever occurred to any individual because of her emails existing on a private server.
    • Add to those criteria the fact that every citizen is innocent until proven guilty in a court of law and that every person has the right to a (speedy) trial by jury, and Donald Trump is caught on his own petard.
Now, of course, we have the inevitable second Comey letter to Congress as of Sunday, Nov. 6th (with just one full day remaining before Election Day) that indicates, after thorough examination of those Emails on Weiner’s laptop, there is no evidence which would change the stance of the FB I in July:  they will not initiate charges against Hillary Clinton obviously because nothing of substance – nothing criminal – was found in those latest emails.  "Based on our review, we have not changed our conclusions that we expressed in July with respect to Secretary Clinton," he wrote.
Clinton spokesman Brian Fallon said the campaign never doubted that the new investigation would come to the same determination as the first did. "We were always confident nothing would cause the July decision to be revisited," Fallon tweeted. "Now Director Comey has confirmed it."
Sources told ABC News tonight that the new batch of emails contained duplicates the FBI had already reviewed and therefore did not contain new information that altered their initial findings. Agents were aided by computer programs that sorted through thousands of emails found on the laptop shared by Abedin and Weiner.
In my opinion, we have here not only an admission that the July stance is still operative, we have the second letter, by its very existence, confirming that the first letter was truly  interference by a federal agency in a Presidential election.  Nothing of substance that needed reporting to anyone was in the first letter, and the second letter simply confirmed that fact.  Interference is thus the only viable motive for the letter. Moreover, there was no reason for the FBI to have reported to Congress on a closed investigation until the moment when they uncovered new evidence, and had determined that charges would be advanced!  The mere existence of the new emails was not in any way an expansion of Comey’s testimony.  In light of the second letter, the first letter can only be seen as interference in this election.
Unfortunately, from much of the reporting on this incident, there appears to be a faction within the FBI that supports Trump while despising Hillary Clinton.  That small cabal may have pressured Comey to act as he did; we may never know for sure, although a (hopefully) Democratic Senate might want to hold some hearings of its own on this violation of protocol and policy by the FBI Director!
It is Donald Trump who is the larger problem here, just as he was with the “birther” allegations against Barak Obama.  He is a perverse liar and a user of innuendo, gossip, made up stories, and distorted principles of business.  His absolute need to belittle and besmirch all opponents -- to best and beat those he cannot fairly confront in debate, or those with whom he cannot compete in the realms of intellectual or business acumen.  This is a dangerous man, and an even more dangerous politician, because he is not above using the law to flout the laws and standards of justice in our democracy.  He is the epitome of a destroyer of democratic principles.
Equally striking, is his ability to rail against someone else’s flaws and mistakes, and negligence or even crookedness when he is doing or has done the same exact thing.  Take the example of Emails that are destroyed after an official notice has been served to gain access to them.  Now we learn that Trump and his company have done the exact same thing when he was being investigated for alleged wrong-doing in his business.  And, it has happened more than once (revealed in a recent story in NEWSWEEK)!  Such duplicity and hypocrisy are stock-in-trade for this man.
From my humble Blog, I challenge this faker, this con man, this duplicitous hypocrite to arrange for a suit against Hillary Clinton for whatever he believes is criminal behavior; to do any less is tantamount to neglecting his civic duty and abetting criminal behavior by not acting.  In fact, if he knows of any evidence that would prove criminality, he is committing an unlawful act of withholding evidence.  He should figure some way to take her to court now and prove to the American people that he is not just a bag of wind; that he will act on his word.  Do it now, on a fast track before the election, so that the Court can tell you what I hope the intelligent voters will tell you on November 8th: 
Donald Trump has called for Hillary’s impeachment, and even predicted that it would happen when the Department of Justice finally indicts her for crimes involving her Emails, or Ben Ghazi, or something yet to be discovered.
First, no impeachable offense has been found that even fits the definition of “conviction of Treason, Bribery, or other high crimes and Misdemeanors.”  It might well be possible to convince a radical Right-ruled House to impeach; that is, to form a bill of charges for whatever they think President Hillary Clinton has done that is impeachable in their eyes.  But conviction on any of those listed charges in the Senate is another whole story.  Bill Clinton and Andrew Johnson were both impeached by the House, but not convicted by the Senate.  Revenge and political “gotcha” are apparently not good enough reasons for a conviction.  However, the hateful climate created by Donald Trump could well infect a Republican-retained Senate and result in a poorly conceived conviction. 
BUT wait just a minute:  isn’t there still a question to be raised about timing?  Has that issue ever been entirely settled?  Can a sitting President have charges brought against him/her because of some wrong-doing performed before they held the office of President?  I would argue in the negative: the charges would have no relation to the office of President since whatever “crime” was committed before the oath of office was taken, means that the person was not President.  Secondly, I would argue that, in such an instance, the articles of impeachment formulated by the House of Representatives would constitute a legislative act, and the Constitution specifically states: “No … ex-post facto Law shall be passed.” An ex post facto law is defined in the legal as:
Latin, "After-the-fact" laws.] Laws that provide for the infliction of punishment upon a person for some prior act that, at the time it was committed, was not illegal.  Ex post facto laws (also) retroactively change the rules of evidence in a criminal case, retroactively alter the definition of a crime, retroactively increase the punishment for a criminal act, or punish conduct that was legal when committed. They are prohibited by Article I, Section 10, Clause 1, of the U.S. Constitution. An ex post facto law is considered a hallmark of tyranny because it deprives people of a sense of what behavior will or will not be punished and allows for random punishment at the whim of those in power.” 

Since there are several definitions that fit numerous circumstances, I would depend on the definitions that imply punishment that does not fit the crime or that brings a punishment for something that was not illegal at the time committed; in this sense – the punishment of impeachment and loss of office as well as prohibition from ever holding civil office again could be argued to be an increase of punishment for certain questionable crimes such as deleting private Emails.  Or, it could be argued that many of the Emails in question, now thought to contain “classified information” were not so designated at the time of their sending.   

At any rate, bringing an act of impeachment by the House and subsequent conviction by the Senate of crimes and misdemeanors said to be committed before Secretary Clinton took the oath of office of President is fraught with restrictions on the “whims” of those in power, and in those seeking power and revenge.
Let us not mince words here:  Polls are always somewhat inaccurate because no polling sample is perfectly representative of the larger constituency for whom they supposedly speak.  If they were accurate, there would be no need for an acknowledgement of “margin of error.”
Polls are always faulty in terms of how questions are asked, and because of different interpretations of those questions by those being surveyed.  That is, every person brings his or her own biases and experiences to the words and to the questions themselves.   Thus, the answers given have true meaning only to the answerer.
Polls are always inaccurate because no subject or issue, with all its facets, implications and meanings can ever be thoroughly plumbed by any poll, no matter how sophisticated its methodology.
In terms of polls that are taken to determine who leads in the race for the White House, all of them are built on a false premise:  they attempt to measure the popular vote instead of the Electoral College Vote, which is the only vote that counts under our Constitution. As far as I know, no polling methodology exists which can accurately measure the electoral college vote mainly because states have different rules for how that vote is apportioned.  In most states the winner of the popular vote wins all of the electoral votes apportioned to that state.  In Maine and Nebraska, the popular vote is apportioned by districts. 
 So, one can translate the results of the pre-election polls to this extent: one can know from the polls what state’s electoral votes may be won by each candidate if their popular vote projections are accurate.  One thing we do know -- not only from the Florida vote in 2000 where the Supreme Court decided the outcome, but from votes earlier in our 18th century history when two undecided elections were thrown into the House of Representatives -  polls cannot be relied upon to accurately measure unforeseen circumstances.  One of those circumstances, which may occur in this election is the rare occurrence where one candidate wins the popular vote (as Al Gore did in 2000) and the other wins the electoral college vote (as George Bush did after the SCOTUS decision about Florida).  Guess who becomes President?
The only polls that matter are the ones where you cast your ballot on Election Day, and the one where the official Electors cast their votes in their own states and send certification of their vote sometime before Jan. 6th of the new year, when traditionally the Congress meets in joint session to reveal the electoral vote count, and the victorious candidates for President and Vice President.
 So, beware of putting too much trust in pre-election polls that cannot tell you with deadly accuracy who will win the Presidency.  Instead, make sure YOU VOTE, and that everyone around you does as well.  Polls are inherently inaccurate – YOUR VOTE represents the only answer that matters!