Tuesday, January 30, 2018

The Tet Offensive Revisited: Media’s Big Lie

How an American victory was transformed into a symbol of defeat Josef Goebbels called it the Big Lie, the deliberate misrepresentation of facts and reality in order to achieve a political objective. It’s been part and parcel of the New World Disorder we’ve lived under for the past century, ever since Vladimir Lenin first used a Big Lie to disguise his seizure of power from Russia’s post-czar provisional government in November 1917, by telling the Russian people he was preventing a coup not perpetrating one.

America’s first major encounter with the Big Lie, with all its disastrous consequences, started 50 years ago today, when the American mainstream media — CBS and the other networks, plus the New York Times and the Washington Post — decided to turn the major Communist Tet offensive against U.S. forces and South Vietnam on January 30, 1968, into an American defeat, rather than what it actually was: a major American victory.

We’ve all lived in the disorder and chaos that campaign set in motion ever since.

By the end of 1967, the Communist cause in the Vietnam War was in deep trouble. The build-up of American forces — nearly half a million men were deployed in Vietnam by December — had put the Vietcong on the defensive and led to bloody repulses of the North Vietnamese army (NVA), which had started intervening on the battlefield to ease the pressure on its Vietcong allies.

Hanoi’s decision to launch the Tet offensive was born of desperation. It was an effort to seize the northern provinces of South Vietnam with conventional troops while triggering an urban uprising by the Vietcong that would distract the Americans — and, some still hoped, revive the fading hopes of the Communists. The offensive itself began on January 30, with attacks on American targets in Saigon and other Vietnamese cities, and ended a little more than a month later when Marines crushed the last pockets of resistance in the northern city of Hue.

It not only destroyed the Vietcong as an effective political and military force, it also, together with the siege of Khe Sanh, crippled the NVA, which lost 20 percent of its forces in the South and suffered 33,000 men killed in action, all for no gain. By the end of 1969, over 70 percent of South Vietnam’s population was rated by the U.S. military as under government control, compared with 42 percent at the beginning of 1968.

The American public knew none of this, however. Almost from the moment the first shots were being fired, skeptics of the war effort in the mainstream media, including CBS News icon Walter Cronkite, would use Tet to prove that the war wasn’t being won as the Johnson administration was claiming. They went further, representing the failed attacks on the U.S. embassy in Saigon and other sites as symbols of Communist success.

As the Washington Post’s own Saigon bureau chief Peter Braestrup documented in his book The Big Story, reporters caught in the fighting systematically used it to turn the reality of American victory into an image of American and South Vietnamese defeat (reporting for example that Vietcong had overrun five floors of the U.S. embassy when in fact the VC had never even gotten inside the building). Newsweek’s coverage of the siege of Khe Sanh showed 18 photos (out of a total of 29) of dead or wounded Marines or Marines huddling under cover, never mentioning that the Marines were steadily pushing back the NVA and inflicting heavy casualties.

That campaign of misrepresentation culminated in Walter Cronkite’s half-hour TV special on February 27, when he told his viewers with an appropriately glum face that Tet had proved that America was now “mired in a stalemate” — even as American forces were breaking the siege around Khe Sanh and clearing out the last resistance in Hue.

The misrepresentation by America’s most respected newsman and most trusted media outlets of what had actually happened during Tet stunned the American public and the body politic. Popular support for the war took a heavy hit, as the war’s critics now grabbed center stage. Gallup polls in December 1967 had shown Americans evenly split on whether entering Vietnam was a mistake. The barrage of negative coverage of Tet had nudged the doubters slightly ahead by February 1, 46 to 42 percent. By April, the doubters were ahead by eight points, and support for the war never recovered.

Presidential candidate Eugene McCarthy seized on the news that the Vietcong “had seized a section of the Embassy” (which was entirely false) and entered Hue as proof that it was the Communists, not the Americans, who were winning the war. Cronkite’s TV broadcast all but doomed the reelection campaign of President Lyndon Baines Johnson; in April McCarthy won the Wisconsin primary by a stunning ten points and LBJ bowed out of the race. Robert Kennedy seized the opportunity to enter the race on an anti-war platform; less than three months later he was dead by an assassin’s bullet. The Democratic national convention descended into violence and chaos, as the Vietnam war became the key divisive issue in American politics — and a hot-button issue in our culture ever since.

After Tet, American media had assumed a new mission for itself: to shape the nation’s politics by crafting a single coherent narrative, even if it meant omitting certain relevant facts and promoting other false or misleading ones. In March 1969, after Richard Nixon’s election, the executive producer of ABC News told his Saigon bureau: “I think the time has come to shift our focus from the battlefield . . . to themes and stories under the general heading, ‘We are on our way out of Vietnam.’” One of those “stories” would be the massacre at My Lai, which actually took place in the aftermath of Tet but only became “newsworthy” a year later when the media was looking for ways to convince Americans that Nixon’s decision to stay the course in Vietnam was destroying their country’s moral standing — just as they had convinced them a year earlier that America’s major victory was actually a major defeat.

So while many in mainstream news outlets wring their hands today about a widespread lack of trust in media, it’s important on this 50th anniversary to remember the part they played in squandering it.

Tuesday, January 23, 2018

California, America’s Poverty Capital

by Kerry Jackson, National Review

Why are so many people poor in the Golden State?

California — not Mississippi, New Mexico, or West Virginia — has the highest poverty rate in the United States. According to the Census Bureau’s Supplemental Poverty Measure — which accounts for the cost of housing, food, utilities, and clothing, and which includes non-cash government assistance as a form of income — nearly one out of four Californians is poor. Given robust job growth in the state and the prosperity generated by several industries, especially the supercharged tech sector, the question arises as to why California has so many poor people, especially when the state’s per capita GDP increased roughly twice as much as the U.S. average over the five years ending in 2016 (12.5 percent, compared with 6.27 percent).

It’s not as if California policymakers have neglected to wage war on poverty. Sacramento and local governments have spent massive amounts in the cause, for decades now. Myriad state and municipal benefit programs overlap with one another; in some cases, individuals with incomes 200 percent above the poverty line receive benefits, according to the California Policy Center. California state and local governments spent nearly $958 billion from 1992 through 2015 on public welfare programs, including cash-assistance payments, vendor payments, and “other public welfare,” according to the U.S. Census Bureau. Unfortunately, California, with 12 percent of the American population, is home today to roughly one in three of the nation’s welfare recipients. The generous spending, then, has not only failed to decrease poverty; it actually seems to have made it worse.

In the late 1980s and early 1990s, some states — principally Wisconsin, Michigan, and Virginia — initiated welfare reform, as did the federal government under President Bill Clinton and the Republican Congress. The common thread of the reformed welfare programs was strong work requirements placed on aid recipients. These overhauls were widely recognized as a big success, as welfare rolls plummeted and millions of former aid recipients entered the work force. The state and local bureaucracies that implement California’s anti-poverty programs, however, have resisted pro-work reforms. In fact, California recipients of state aid receive a disproportionately large share of it in no-strings-attached cash disbursements. It’s as if welfare reform passed California by, leaving a dependency trap in place. Immigrants are falling into it: Fifty-five percent of immigrant families in the state get some kind of means-tested benefits, compared with just 30 percent of natives, according to City Journal contributing editor Kay S. Hymowitz.

Self-interest in the social-services community may be at work here. If California’s poverty rate should ever be substantially reduced by getting the typical welfare client back into the work force, many bureaucrats could lose their jobs. As economist William A. Niskanen explained back in 1971, public agencies seek to maximize their budgets, through which they acquire increased power, status, comfort, and job security. In order to keep growing its budget, and hence its power, a welfare bureaucracy has an incentive to expand its “customer” base — to ensure that the welfare rolls remain full and, ideally, growing. With 883,000 full-time-equivalent state and local employees in 2014, according to Governing, California has an enormous bureaucracy — a unionized, public-sector work force that exercises tremendous power through voting and lobbying. Many work in social services.

Further contributing to the poverty problem is California’s housing crisis. Californians spent more than one-third of their incomes on housing in 2014, the third-highest rate in the country. A shortage of housing has driven prices ever higher, far above income increases. And that shortage is a direct outgrowth of misguided policies. “Counties and local governments have imposed restrictive land-use regulations that drove up the price of land and dwellings,” explains analyst Wendell Cox. “Middle-income households have been forced to accept lower standards of living while the less fortunate have been driven into poverty by the high cost of housing.” The California Environmental Quality Act (CEQA), passed in 1971, is one example; it can add $1 million to the cost of completing a housing development, says Todd Williams, an Oakland attorney who chairs the Wendel Rosen Black & Dean land-use group. CEQA costs have been known to shut down entire home-building projects. CEQA reform would help increase housing supply, but there’s no real movement to change the law. California’s de facto status as a one-party state lies at the heart of its poverty problem.

Extensive environmental regulations aimed at reducing carbon dioxide emissions make energy more expensive, also hurting the poor. On some estimates, California energy costs are as much as 50 percent higher than the national average. Jonathan A. Lesser of Continental Economics, author of a 2015 Manhattan Institute study, “Less Carbon, Higher Prices,” found that “in 2012, nearly 1 million California households faced ‘energy poverty’—defined as energy expenditures exceeding 10 percent of household income. In certain California counties, the rate of energy poverty was as high as 15 percent of all households.” A Pacific Research Institute study by Wayne Winegarden found that the rate could exceed 17 percent of median income in some areas. “The impacts on the poorest households are not only the largest,” states Winegarden. “They are clearly unaffordable.”

Looking to help poor and low-income residents, California lawmakers recently passed a measure raising the minimum wage from $10 an hour to $15 an hour by 2022 — but a higher minimum wage will do nothing for the 60 percent of Californians who live in poverty and don’t have jobs, and studies suggest that it will likely cause many who do have jobs to lose them. A Harvard study found evidence that “higher minimum wages increase overall exit rates for restaurants” in the Bay Area, where more than a dozen cities and counties, including San Francisco, have changed their minimum-wage ordinances in the last five years. “Estimates suggest that a one-dollar increase in the minimum wage leads to a 14 percent increase in the likelihood of exit for a 3.5-star restaurant (which is the median rating),” the report says. These restaurants are a significant source of employment for low-skilled and entry-level workers.

Apparently content with futile poverty policies, Sacramento lawmakers can turn their attention to what historian Victor Davis Hanson aptly describes as a fixation on “remaking the world.” The political class wants to build a costly and needless high-speed rail system; talks of secession from a United States presided over by Donald Trump; hired former attorney general Eric Holder to “resist” Trump’s agenda; enacted the first state-level cap-and-trade regime; established California as a “sanctuary state” for illegal immigrants; banned plastic bags, threatening the jobs of thousands of workers involved in their manufacture; and is consumed by its dedication to “California values.” All this only reinforces the rest of America’s perception of an out-of-touch Left Coast, to the disservice of millions of Californians whose values are more traditional, including many of the state’s poor residents.

California’s de facto status as a one-party state lies at the heart of its poverty problem. With a permanent majority in the state senate and the assembly, a prolonged dominance in the executive branch, and a weak opposition, California Democrats have long been free to indulge blue-state ideology while paying little or no political price. The state’s poverty problem is unlikely to improve while policymakers remain unwilling to unleash the engines of economic prosperity that drove California to its golden years.

Friday, January 12, 2018

Why Socialism Fails

Image credit: Barbara Kelley

Why Socialism Fails

Paul R. Gregory, Hoover Institution

As the collapse of the Soviet Union approached, Francis Fukuyama proclaimed the victory of liberal democracy over planned socialism in his 1989 essay, “The End of History?” More than a quarter century later, the USSR has indeed disintegrated. Its former east European empire lies inside the European Union. China has a market economy, though the nation is led by a single party. And the “socialist” states of North Korea, Cuba, and Venezuela are in economic ruin. Few now advocate “back to the USSR.” At the same time, many people still consider socialism an appealing economic system. Consider, for example, that Bernie Sanders—an avowed supporter of a socialist United States—is America’s most popular politician—and that as many millennials favor socialism as capitalism.

The analogy of the jockey and the horse explains the continued appeal of socialism. Socialists believe that socialist regimes have chosen the wrong jockeys to ride the socialist horse to its deserved victory. Bad jockeys such as Stalin, Mao, Fidel, Pol Pot, and Hugo Chavez chose tactics and policies that led their socialist horse astray. But actually, a look at how the Soviet Union actually worked reveals that it’s the horse itself that’s the problem.

After gaining power a century ago and then holding onto it through a civil war, the Soviet communists were intent on building a socialist state that would overwhelm capitalism. State ownership and scientific planning would replace the anarchy of the market. Material benefits would accrue to the working class. An equitable economy would supplant capitalist exploitation and a new socialist man would rise, prioritizing social above private interests. A dictatorship of the proletariat would guarantee the interests of the working class. Instead of extracting surpluses from workers, the socialist state would take tribute from capitalists to finance the building of socialism.

The basics of the Soviet “horse” were in place by the early 1930s. Under this system, Stalin and his Politburo set general priorities for industrial ministries and a state planning commission. The ministers and planners worked in tandem to draw up economic plans. Managers of the hundreds of thousands of plants, factories, food stores, and even farms were obligated by law to fulfill the plans handed down by their superiors.

The Soviets launched their planned socialist economy as the capitalist world sank into depression, trade wars, and hyperinflation. Soviet authorities bragged of unprecedented rates of growth. New industrial complexes grew from scratch. Magazines featured contented workers lounging in comfortable resorts. The message: The West was failing, and the Soviet economic system was the way to the future.

As the competition between capitalism and Soviet socialism became more pronounced during the Cold War, serious scholarly study of the Soviet economy began. The overarching research agenda of Western scholars was “scientific planning”—the socialist belief that expert technocrats could manage an economy better than spontaneous market forces. After all, would not experts know better than buyers and sellers what, how, and for whom to produce?

It was the Austrian economists F. A. Hayek and Ludwig von Mises who resisted this idea most forcefully. In their landmark critique laid out in a series of papers written from the 1920s through the 1940s, they concluded that socialism must fail. In modern economies, hundreds of thousands of enterprises produce millions of products. Even with the most sophisticated computer technology, managing such large numbers would be far too complex for an administrative body trying to allocate resources. Modern economies, therefore, are too complex to plan. Without markets and prices, decision-makers will not know what is scarce and what is abundant. If property belongs to all, what rules should those who manage assets for society follow?

The Soviets’ solution to the complexity and information problems was a national plan that spelled out production goals only for broad sectors, not for specific transactions. In other words, rather than mandate the delivery of 10 tons of steel cable by factory A to factory B, the planners set a target for the total number of tons of cable to be produced nationwide. Only a few specific goods—such as crude oil, aluminum ore, brown coal, electricity, and freight-car dispatches—could be planned as actual transactions. Everything else had to be planned in crude quantities, such as several million square meters of textile products. Product specifications, delivery plans, and payments were worked out at lower levels and often with disastrous results.

Soviet scientific planning, in fact, directed only a minuscule portion of products. In the early 1950s, central agencies drew up less than 10,000 planned indexes, while industrial products numbered more than 20 million. Central agencies drew up generalized plans for industrial ministries, which issued more detailed plans to “main administrations,” which prepared plans for enterprises. There never was a pretense that the top officials would plan the production of specific products.

To make matters even more complicated, virtually all plans were “drafts” that could be changed at any time by higher state and party officials. This constant intervention, called “petty tutelage,” was an irritant from the first to the last day of the Soviet system, but it was a key pillar of resource allocation.

Central planners prepared preliminary plans for a small percentage of the economy. These “draft plans” set off huge “battles for the plan” as ministries and enterprises scrambled to fulfill their production targets and meet their delivery quotas, all of which could be changed by party and local officials at any time.

As the commissar of heavy industry, Sergo Ordzhonokidze complained in 1930: “I guess they think we are idiots. They give us every day decree after decree, each one without foundation.” An unnamed defense contractor echoed the same complaint a half century later: “They stick their heads into every single issue. We told them they were wrong, but they would demand that things be done their way.”

The manager’s task was presumably simple: The plan was the law; the manager’s job was to fulfill the plan. But the plan kept on changing. Moreover, it consisted of multiple tasks, such as deliveries, outputs, and an assortment program. Throughout the entire history of the Soviet Union, gross output (measured in tons, meters, or freight/miles) was the most important plan indicator and the most malleable. Nail producers, whose output was judged by weight, would produce only heavy nails. Tractor manufacturers, struggling to meet their tractor quota, were caught delivering tractors without engines to their customers, who accepted them anyway for their spare parts. Shoe manufacturers, whose plans were based on quantity, produced one size and one color to the chagrin of customers. Other targets, such as cost reductions or new technologies, were ignored as counting less towards fulfillment of the plan.

Under scientific planning, supply had to roughly equal demand—and, given their distaste for the anarchy of markets, Soviet planners could not balance supply and demand by raising and lowering prices. Instead, they compiled “material balances” using primitive accounting to compare what materials were on hand with what were, in some sense, needed.

Soviet material-balance planning suffered from a number of deficiencies. For example, only a few balances could be compiled—in 1938, only 379 central balances were prepared in a market of millions of goods. And then, the balances were based on distorted information. Producers of goods in the balance lobbied for easy targets that concealed their capacity. Industrial users in the balance overstated what they needed to be sure of fulfilling their own plans.

Figuring out the proper balance was an exhausting exercise—and Soviet planners did not reinvent the wheel each year. Instead, they resorted to what came to be known as “planning from the achieved level,” which meant that each year’s plan was last year’s plus some minor adjustments.

By the early 1930s, supply agencies were distributing materials based on what they did in the previous year. A fast forward to the 1980s reveals the same practice in place: When a producer of welded materials wished to use thinner metals, the official answer was: “I don’t care about new technology. Just do it so that everything remains the same.” Material-balance planning was hostile to new products and new technologies because they required a reworking of an already fragile system of balances. American economists who were studying Soviet industrial production in the 1950s were astonished that the same machines were produced over decades without modification, something unheard of in the West.

Material-balance planning was the most fundamental weakness of the Soviet system. It froze the Soviet economy in place. Each year’s production was a replica of the previous year. A Soviet manager from 1985 would have felt quite at home in the same enterprise in 1935.

Beyond material-balance planning, soft budgets constituted another key defect. The economist Janos Kornai of Harvard University grew up in Hungary under planned socialism. His research, which draws on his first-hand experiences, focuses on the economic losses associated with soft budget constraints. As Kornai, if enterprises do not face the risk of bankruptcy, they will not seek out cost economies and other survival strategies. From day one of the Soviet system, loss-making enterprises understood they would be bailed out automatically, if not right away.

The primary cause of soft budgets was that the Soviet system was based on output plans. One enterprise’s output was another’s input. If output plans failed widely, the whole plan would fail. Taking an enterprise out of production due to insolvency was simply not an option.

In practice, loss-making enterprises paid for deliveries with IOUs. Unsettled IOUs would grow until they reached crisis proportions. Gosbank, the state bank, would then step in and make good on the unpaid bills by issuing money and creating what Soviet banking officials called a monetary overhang—more rubles chasing goods than there were goods to buy. In fact, Gosbank’s main business in the early years of the Soviet Union was organizing bailouts. When one was completed, it was time to start working on the next.

The problem with socialism isn’t a bad jockey—it’s the horse itself. The Soviet economic system suffered from pathologies that would ultimately doom it. Starting in the late 1960s, the USSR economy went into a long decline, which came to be called the “period of stagnation.” Mikhail Gorbachev was elected General Secretary of the Communist Party in 1985 on the pledge that he, as a radical reformer, would reverse the decline.

Gorbachev failed because the core of the Soviet planned system was rotten Despite his reform inclinations, he remained a believer in socialism. He was determined to save Soviet socialism by making it more like capitalism. In so doing, he created an economy that was neither planned nor a market—a chaotic free-for-all, which the Russian people regrettably associate to this day with that they came to call “wild capitalism.”

Sunday, January 07, 2018

Restoring the Rule of Law to the Protection of Classified Information

Former Assistant United States Attorney Andrew McCarthy is a natural teacher. In his current NRO column, he gives a short course on the intent element of criminal statutes. All our criminal laws set forth the elements of an offense. The intent element of a given crime (generally, the intent to perform an act) is to be distinguished from motive (the reason for performing the act). Scott Johnson, Powerline

Restoring the Rule of Law to the Protection of Classified Information

Andrew C. McCarthy, National Review

In the Clinton-email case, her intent, regardless of her motive, was clearly criminal.

The Justice Department is reviving investigations involving Hillary Clinton’s emails and the degree to which the State Department during Mrs. Clinton’s tenure as secretary was put in the service of the Clinton Foundation. Good. Indeed, it is long overdue. It underscores a point we’ve tried to make repeatedly here: You don’t need a special counsel for this kind of thing; such investigations are what we have a Justice Department full of career prosecutors for. The perverse institution of the independent prosecutor should be shunned whenever possible — and its jurisdiction tightly confined in the rare necessary case.

All that said, investigations involving the mishandling of classified information by officials with privileged access to it will go nowhere unless the Justice Department restores the rule of law: investigators and prosecutors applying congressional statutes, not rewriting them as dictated by their political masters.

As we have recounted (see, e.g., here), in April 2016, when the Clinton-emails investigation was in full swing but before it was anywhere close to completion, President Obama gave a nationally televised interview in which he made clear that he did not want criminal charges brought against his former secretary of state — and the already certain Democratic candidate to succeed him. Obama made two duplicitous points: Mrs. Clinton 1) had exhibited “carelessness,” but nothing worse, by using a private, non-secure email system to conduct State Department business, and 2) had not intended to endanger American national security when she stored and transmitted classified information on this system.

The FBI has taken the heat because it ultimately applied these disingenuous guidelines publicly and without apology. But it was the political leadership of the executive branch that called the tune — which seems like news only because the media’s revulsion over presidential attempts to influence criminal investigations would await Donald Trump’s inauguration.

Obama’s first point led to one of the great head-fakes in modern law-enforcement history — one that reverberates to this day. Using his bully pulpit, the president framed the Clinton case as one of negligence. The portrayal stuck: Incessantly, the Justice Department, the media, and eventually James Comey, then-director of the FBI, addressed the case in terms of Mrs. Clinton’s purported carelessness — a hardworking public official’s regrettable but forgivable inattention to detail.

Even now, critics of Clinton and the FBI are in a lather over reports that, as Comey’s team drafted his remarks exonerating Clinton (notwithstanding that key witnesses, including Clinton herself, had not been interviewed), agent Peter Strzok changed the term “grossly negligent” to “extremely careless.” Substantively, these terms are indistinguishable. The emendation is said to be critical, though, because the statute applicable to Clinton’s conduct criminalizes “gross negligence.” If Comey had said the words “grossly negligent,” so the story goes, it would be the equivalent of pronouncing Clinton guilty.

That is, it would be impossible to rationalize not charging her because, after all, this case was all about negligence.

But it wasn’t. Never.

The principal felony offense in Mrs. Clinton’s case is the willful retention or transmission of classified information. This was a straightforward case of criminal intent. Negligence was the fallback position — for a prosecutor, an “even if” theory, as in: “Even if you’re not convinced by our overwhelming evidence of Clinton’s willfully illegal retention and transmission of classified information, you can still comfortably find her guilty if you conclude that she was grossly negligent — which, as the judge will tell you in his instructions, simply means ‘extremely careless.’”

Mrs. Clinton’s criminal intent was so clear that its obfuscation also required Obama’s second point: Mrs. Clinton’s lack of intent to imperil the United States. Director Comey hammered his boss’s legerdemain again and again. And why not? After all, it was true — Clinton unquestionably had no desire to endanger our country. It’s always good to go with the truth . . . especially if you have the luxury of a Democrat-smitten media that won’t ask whether the truth you’ve highlighted is relevant to the matter under investigation.

Obama is a Harvard-trained lawyer. What he and those who echoed him executed was a not uncommon defense-attorney stratagem: The conflation of motive and criminal intent, two significantly distinct concepts. Motive is the reason why we do something; intent is our state of awareness in doing it — the understanding that, regardless of why we are doing something, we know we are doing it and we are doing it on purpose. To prove someone guilty of a crime, no motive need be established, but intent must always be proved beyond a reasonable doubt.

The Espionage Act (section 793 of the federal penal code) prescribes a sliding scale of classified-information offenses, from the most to the least serious. Let’s put aside the red herring of the Clinton emails case, gross negligence — at subsection (f), the bottom of the scale.

The principal felony offense in Mrs. Clinton’s case is the willful retention or transmission of classified information — subsections (d) and (e) of the act. To prove this offense, the prosecutor must prove that the official 1) had possession of the information, 2) had “reason to believe [it] could be used to the injury of the United States or to the advantage of any foreign nation,” 3) transmitted it to an authorized person or place, or failed to deliver it on demand to an authorized government agency, and 4) acted willfully, which means acting intentionally and with an understanding that one’s actions are wrongful.

Two things to notice. First, there is no requirement to prove an intent to harm the United States. The statute calls only for an awareness that the information could be used to hurt the U.S. or benefit a foreign nation. To be guilty, the official does not need to want that to happen; she must merely be aware that it could happen. Of course, every government official who is privileged to hold a security clearance is well aware of this. Making the official aware of it and having the official expressly acknowledge her awareness are essential parts of the indoctrination that is a condition of getting the clearance. And thus every government official with a security clearance knows it is wrongful to transfer classified information to a person not authorized to have it or to a place where its storage is not authorized.

Second, you may be saying to yourself: “But ‘intent to harm the United States’ is significant, so it should be part of a classified-information offense.” That’s right, and that’s why it is a part of a classified-information offense — it just happens not to be the offense we’re talking about in Mrs. Clinton’s case.

If an official illegally transmits classified information “with an intent or reason to believe that the information is to be used to the injury of the United States,” then that official commits the more serious felony offense prescribed at the top of the Espionage Act’s scale — subsection (a). If someone had suggested charging Mrs. Clinton with this treasonous offense, then she, President Obama, and Director Comey would have been quite right to stress that she had no such intent. But no one suggested that. Rather, it was urged that she had transmitted classified information on purpose, but not with intent to do the country harm. That is less heinous than the treasonous offense. But it is still egregious. It is a crime that puts the lives of intelligence sources and the effectiveness of life-saving intelligence operations at risk.

That Clinton did not intend that any harm come to the United States does not make her innocent of willfully transmitting classified information to unauthorized persons or places. Moreover, it is a black-letter principle that a person’s innocence of Crime A is inadmissible to prove that the person has not committed Crime B. For example, the fact that I have not personally sold drugs has no bearing on whether I laundered drug money. And the fact that Mrs. Clinton did not intend that any harm come to the United States does not make her innocent of willfully transmitting classified information to unauthorized persons or places, or of retaining it when she left the government and when the State Department finally requested that she surrender the government records in her possession.

Motive is different from intent, but it is easy even for lawyers to confound the two. Unless a criminal statute explicitly makes motive a part of the offense, there is no requirement that it be proved. Yet we can’t say that motive is completely irrelevant because the prosecutor is always permitted to offer motive evidence. This is not because a motive must be established; it is because intent must be established, and a person who has a motive is likely to have acted intentionally rather than mistakenly. Motive evidence is thus admissible because it helps prove intent. But that does not turn intent into motive, and it does not mean a particular motive, such as wanting to hurt the country, must be proved before we can find that someone who illegally transferred classified information acted intentionally, cognizant that what she was doing was wrong.

As for Mrs. Clinton’s motives, no sensible person believes she wanted to imperil the country; many, however, justifiably believe she put her own interests ahead of the potential that the country could be threatened. I have always believed her motive in setting up a private communications network for her government work was twofold: to conceal the links between State Department business and Clinton Foundation business; and, as she was contemplating a presidential bid, to insulate her communications from disclosure under the Freedom of Information Act, congressional oversight, and other government-transparency measures.

Regardless of whether my motive theory is sound, however, the evidence that Clinton willfully mishandled classified information is mountainous.

Before she was ever secretary of state, Clinton lived and worked in a White House where classified-information protocols were observed. She had to apply these protocols for years as a senator whose committee assignments were intelligence-intensive. Before becoming secretary of state, she was indoctrinated in the handling of classified information and signed documentation attesting that she had read and understood the relevant executive orders about intelligence classification and handling.

Clinton well understood that the position of secretary of state involved immersion in classified information. She wrote in her memoir about the extraordinary steps she was required to take to safeguard classified information. Given the nature of her responsibilities for foreign relations and national security, her decision to conduct all her government business on a private server system made it inevitable that classified information would be transmitted in and stored on the private system. There is no possibility that she did not know this. The private system she set up was in violation of government and State Department regulations. Her loyal staff fought efforts to bring her into the government email system – even though she forced the resignation of an ambassador over, among other things, his conducting of government business over an unauthorized private email system.

When the request was made that Clinton surrender her emails to the State Department, she turned them over to her own lawyers and subordinates who did not have the security clearances required for access to the information. She destroyed tens of thousands of emails, even though they were under subpoena, so that they could not be reviewed by the State Department or the FBI. Of the 30,000 she deigned to surrender to the State Department, over 2,000 contained classified information, some of it among the nation’s most highly classified national-defense secrets. And she serially lied in her public statements about her emails, in congressional testimony (in which she brazenly claimed to have turned over all work-related email to the State Department, and that her lawyers had carefully reviewed every email before designating which should be surrendered and which withheld), and in her FBI interview (in which she pretended not to know what the ubiquitous “[C]” designation — for confidential — in classified documents meant).

Any prosecutor who understood there was no need to prove intent to harm the United States would be delighted to take that case to the jury — especially once the prosecutor realized he’d get to tell the jury: “Even if you suspend disbelief and buy the defense argument that she didn’t mean to horde and transmit classified information, you must still find her guilty if you conclude she was grossly negligent — as in ‘extremely careless.’”

The Trump administration and its Justice Department say they want to stop rampant leaking by government officials. It won’t stop absent a reversal of the last administration’s fiction that the prosecutor must establish a motive to harm the United States. The law does not require it. The rule of law requires correcting it.

— Andrew C. McCarthy is a senior fellow at the National Review Institute and a contributing editor of National Review.