Will Obama Protect Hillary from Prosecution?

FBI investigation of Clinton’s e-mail scandal comes to a critical turning point.

Hillary Clinton was fond of saying during her presidential campaign, “No individual too big to jail.” That is, until she realized her catchy phrase could be applied to her own travails with the FBI. Hillary then substituted the word “executive” for “individual,” seemingly ruling out in her mind jail time for such lofty public figures as herself. 

We shall soon see whether Hillary is too big to be brought to account for her reckless handling of classified information on her private e-mail system. “Lesser” mortals such as Gen. David Petraeus have been criminally prosecuted for offenses far less serious than Hillary’s continuing abuse of her position during her tenure as Secretary of State. 

The FBI is reportedly nearing the final stages of its investigation, after having finished their examination of Hillary’s private e-mail server. IT specialist Bryan Pagliano, who helped set up Hillary Clinton’s private e-mail system, was granted immunity by the Department of Justice in return for his cooperation. He has reportedly provided valuable information on the details of the system. "Bryan Pagliano is a devastating witness and, as the webmaster, knows exactly who had access to [Clinton's] computer and devices at specific times. His importance to this case cannot be over-emphasized," an intelligence source close to the case told Fox News.

Armed with this information, the FBI and Department of Justice prosecutors are said to be preparing to set up interviews with Hillary Clinton’s top aides and Hillary herself in the near future.

Clinton rejects out of hand the possibility that she could be indicted. "Oh for goodness—that is not going to happen,'' Clinton responded to a question posed by a correspondent from Univision during her March 9th debate with Senator Bernie Sanders. 

"I'm not even answering that question,'' she added to applause from the partisan audience. Hillary may have to answer to federal prosecutors, however, if the FBI recommends a criminal referral, unless of course the Obama administration runs interference for her.

Hillary has been relying on essentially four rather shaky defenses to wiggle out of trouble.

First, while admitting what she did was a mistake, she contends that she broke no rules. This contention is false. Hillary evaded rules governing federal records management by using her private e-mail server system exclusively, according to Daniel Metcalfe, former director of the Department of Justice’s Office of Information Policy. "Using a personal email account exclusively is a potent prescription for flouting the Federal Records Act and circumventing the Freedom of Information Act," Metcalfe said. "And there can be little doubt that Clinton knew this full well." 

Second, Hillary has frequently used the defense that everybody did what she did. "My predecessors did the same thing,'' she said during the March 9th debate. This contention is at best misleading. Former Secretaries of State such as Colin Powell did use their personal e-mail accounts for government-related business from time to time. However, they did not do so exclusively, and they did not use their own home server to receive and store the e-mails. 

Third, Hillary argues that she never sent or received e-mails that were marked “classified” at the time they were sent or received. She has accused the federal agencies that make the classification determinations of going overboard in retroactively changing the classification of many documents to “classified.” With her training and federal government experience, however, Hillary surely knew that some e-mails or other documents are “born” classified because of the inherently sensitive nature of their contents. It turns out that a number of e-mails were found to contain “top secret” information, which a senior government official in her position should have known was the case when she received them. Moreover, whether or not a document was marked originally as classified or not is beside the point. Hillary was on direct notice of this fact when she signed the State Department’s Classified Information Disclosure Agreement in 2009, which read in part: “As used in this Agreement, classified information is marked or unmarked classified information, including oral communications…”

Fourth, Hillary and her team argue that she did not knowingly mishandle any classified information in breach of any relevant national security laws. In other words, even if she were sloppy, such carelessness does not rise to the level of wrongful intent that is required to establish criminal liability. This defense is related to the contention that there were no classified markings on the e-mails when they were sent or received.

This defense should not work for Hillary either. As previously discussed, whether or not the e-mails were originally marked classified is irrelevant, at least with respect to the top secret information that is “born” classified whether marked or not. Moreover, Hillary’s knowledge that what she was doing would end run security requirements in potential violation of certain national security laws can be inferred from her actions. For example, she directed an aide to remove markings from a talking points document, which the aide had informed her was supposed to be sent via a secure fax, and to send the document instead “nonsecure.”  Also, Hillary Clinton’s knowledge of the risks involved to national security from use of personal e-mail accounts to conduct government business can be inferred from an internal cable her office sent bearing her electronic signature to State Department employees. She is presumed responsible for the contents of a cable that is over her signature. The cable advised the employees not to use their personal accounts for government business for security reasons, focusing on “sensitive but unclassified” information. Hillary knowingly did not practice what she preached, regardless even of whether sensitive classified information would pass through her private system or not. 

Hillary’s wrongful intent defense has an even more fundamental problem. One statute, Section 793(f) of Title 18 USC, requires only a finding of gross negligence:

“Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed…Shall be fined under this title or imprisoned not more than ten years, or both.”

The facts made public so far point at minimum to Hillary Clinton’s recklessness in setting up and continuing to use a private server to handle e-mails relating to government business while she was Secretary of State. She caused the e-mails to be removed from their proper place of custody within secure government facilities and caused copies to be delivered to her personal attorney who did not apparently have the requisite security clearances. In addition to facing potential charges under the gross negligence statute, Hillary could face obstruction of justice charges if she lies to the FBI when she is interviewed or if she caused e-mails on her private server relating to government business to be destroyed.

Will the Obama administration provide Hillary protection from prosecution, or will she be treated equally under the law like us lesser mortals? It will more likely be the former, but we should soon find out.


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