$#!+ Just Got Real — And Real Interesting

ORIGINALLY POSTED AS A FACEBOOK NOTE ON MAY 5, 2016

You should move away from in front of the fan, boys and girls, because something very unpleasant is about to hit it.

There has been talk of the FBI investigation into Hillary’s email server for months now. Much of it has been based on unsubstantiated rumor. What you will read here is based on as solid a source as any one could ask for — federal court documents.

The DoJ on behalf of the FBI filed a Summary Motion with the US District Court for the District of Columbia on March 25, 2016 in case 15-cv-02117 RDM. The following is based on information from the Motion. (fn1)

On November 23, 2015 the FBI received a FOIA (Freedom of Information Act) request regarding Hillary Clinton’s emails. They responded that the emails requested were exempt from the request per 5 USC 552(b)(7)(A) (fn2).

That would be (fn3): “5 USC 552 (b) This section does not apply to matters that are — (7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings,”

What is even more interesting is that 5 USC 552 (c) restricts the availability of 5 USC 552(b)(7)(A). 
(c) (1) Whenever a request is made which involves access to records described in subsection (b)(7)(A) and — (A) the investigation or proceeding involves a possible violation of criminal law; and (B) there is reason to believe that (i) the subject of the investigation or proceeding is not aware of its pendency, and (ii) disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings, 
[indent] the agency may, during only such time as that circumstance continues, treat the records as not subject to the requirements of this section.

So, what we have established, beyond any doubt, is that the DoJ is arguing that the FBI is not required to release the emails because: 
• the emails are part of a criminal investigation, 
• the subject of the investigation is not aware of its pendency, and 
• disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings.

Further, in support of the Motion, the DoJ submitted a Declaration (fn4) by David A. Harby, the Section Chief of the Record/Information Dissemination Section (“RIDS”), Records Management Division (“RMD”), in Winchester Virginia. As far as I can tell that translates into English as Lord High Poobah of FOIAs.

In any case, Mr. Hardy states in his Declaration (fn5): “FBI Director James Comey stated before the House Judiciary Committee on October 22, 2015, that the FBI received and ‘is working on a referral [from] Inspectors General in connection with former Secretary Clinton’s use of a private e-mail server.’ Beyond director Comey’s acknowledgement of the security referral from the Inspectors General of the Intelligence Community and the Department of State, the FBI has not and cannot publicly acknowledge the specific focus, scope or potential targets of any such investigation without adversely affecting the investigation.”

So, we know they are investigating possible security violations. It would seem that the focus, scope and potential targets should be relatively obvious. Given that the case was referred to the FBI by the Inspectors General, the focus is on possible security violations; the scope would be the emails on the server; and the targets would be anyone who used the server, or was otherwise involved with it (e.g., Bryan Pagliano who installed and maintained it).

Hillary Clinton and anyone who worked with her and used the server would have to be living under a rock to be unaware of the scope, focus and targets of the FBI investigation as set forth in the prior paragraph.

How do we square that with 5 USC 552(c)(1)(B)? If the subject of the investigation or proceeding is aware of its pendency, then the FBI has no legal right to invoke 5 USC 552(b)(7)(A).

The next two sentences in Mr. Hardy’s Declaration state (fn6): “The FBI is submitting a classified in camera, ex parte declaration in further support of its reliance on Exemption 7(A) in this case. That declaration provides more details about the pending investigation, which will supplement this demonstration that responsive records in this case were compiled for law enforcement purposes.”

The phrase, “law enforcement purposes,” strongly implies prosecution.

Per the documents filed by the DoJ there appears to be something to the rumor that the FBI is not just looking at the emails as a security issue. Is it outrageous to assume that they may also be looking into the Clinton Foundation as a possible channel for accepting bribes?

Footnotes: 
1. https://www.scribd.com/doc/305969451/Vice-News-Hrc-FBI-Foia-Lawsuit#fullscreen 
2. See paragraph #2 on page 2 of the Motion. 
3. https://www.law.cornell.edu/uscode/text/5/552 has the full text of 5 USC 552, including both (a) and (c). 
4. The Declaration is found toward the end of the pdf with the Motion, linked above. 
5. See paragraph #15 on page 7 of the Declaration. 
6. See conclusion of paragraph #15 on pages 7 and 8 of the Declaration.

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