Prematurely sporting a stylized, straight-out-of-Leavenworth, shock-orange jumpsuit, and carrying the disgusted air of a woman who has just been told that the scullery maid has pilfered the most valuable candlestick, Hillary Clinton yesterday took to a Las Vegas gymnasium to indulge in some choice verbal acrobatics. Keenly aware as she was that she has been left no choice but to gamble with the Devil, Clinton’s mood would be most politely characterized as imperiously defiant. This turbulent digital inconvenience was clearly not supposed to have gone on for this long — not to the point at which Bernie Sanders could start making waves and her trustworthiness could begin to take a hit. “What to do, what to do, what to do?” Clinton’s furrowed brow appeared to ask the cameras. And the answer came down from the heavens: Dissemble, as if your life depended on it.
As is now clear, Hillary possesses almost none of Bill’s remarkable personal virtues. She’s not warm or spontaneous or alluring or quick. She has no discernible political instincts. She doesn’t even seem to enjoy the human contact on which successful public servants thrive. But boy can she fib with the best of them. From start to precipitous finish, her performance was pure Clintonian evasion. “What I did,” she argued carefully — after trying a quick “nothing to do with me” for good measure — “was legally permitted, number one, first and foremost, okay?” “Number two,” she offered, “they’ve already concluded more than 1,200 of the e-mails I gave them have nothing to do with the work, and I said make them public.” “I know,” she concluded emphatically, that “there’s a certain level of, you know, sort of anxiety or interest in this, but the facts are the facts.”
You will presumably have noticed the peculiarly asymmetrical phrasing of Clinton’s answer: “I did not send classified material and I did not receive any material that was marked or designated ‘classified.’” That’s deliberate. In order to have any chance at avoiding liability under 18 USC 1924, Clinton needs not only to have refrained from actively sending or copying e-mails that contained classified information, but also to have been blissfully unaware that she had been receiving them in the first instance. If she knew that she was receiving “documents or materials containing classified information of the United States,” she clearly knew that the server contained “documents or materials containing classified information of the United States.” And if she knew that, then by having “knowingly” transferred the server into the possession of a private company (Platte River), and some of the e-mails into the custody of a lawyer — both, note, without the requisite clearance – she could be held to have violated the prohibition on “knowingly [removing] such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location.” Technically, Clinton could be successfully prosecuted even if she didn’t know that she was in possession of classified information; practically, given the odd way in which the law is written, such a conviction would be difficult to achieve. Far from representing a confident dismissal of the accusations, Clinton’s careful parsing is a sign that she’s holding on to a fig leaf.
Or, perhaps, two. Legally speaking, Clinton’s artfully constructed asseveration constitutes a legal defense only to the question “Did Hillary send classified material or receive any material that was marked or designated ‘classified?’” It does not explain away her subsequent behavior. Under 18 USC 793, it does not matter at all whether the offending e-mails were marked as classified or not. What matters is whether there were any among them that related to the national defense, and, if so, how those missives were kept. There is a strong case to be made that, having been “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, or note relating to the national defense, or information relating to the national defense,” Hillary “through gross negligence [permitted] 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.” If she wishes, she can try to confuse the public with talk of which e-mails were “flagged” and which were not, and she can make it seem as if we’re all perversely interested in her yoga routines. But she will not be so easily able to confuse the FBI — or, if it comes to it, the Department of Justice.
Irritated by the intensity of the scrutiny, Clinton did what Clintons always do: She pretended that she was being bullied.
And so, irritated by the intensity of the scrutiny, Clinton did what Clintons always do: She pretended that she was being bullied. “You’re not listening to me,” she whined. “If it were a government account, they would be saying the same thing.” To the uninitiated this may seem persuasive. To everybody else, it is comically dishonest. The legal question at hand is whether, by virtue of having set up her own server, Clinton violated the laws governing the storage and transmission of classified or defense-related information. Of course we would not be having this conversation if she had followed the protocol and kept her correspondence within the established channels. Of course her critics would not be “saying the same thing.” In essence, her argument was akin to a serial killer’s complaining that he’d have ended up on multiple murder charges whether he’d offed all of those nurses or not.Just how desperate Clinton has become of late was illustrated well by the wild, throw-spaghetti-at-the-wall approach she took toward the end of her display. Her one attempt at flippant humor — “What? Like with a cloth or something?” she inquired, when asked whether she’d wiped the server clean — was little more than a Hail Mary–esque effort, designed to discover whether playing Confused Grandma might be profitable going forward. The answer, clearly, was “No.” Her foray into cool detachment met a similar fate, the short-lived attempt to recast “I” into “We” having foundered at the halfway point. “We went through a painstaking process and turned over 55,000 pages of anything we thought could be work-related,” she started, before conceding that “under the law, that decision is made by the official. I was the official. I made those decisions.”
This vein, let’s say, was not a profitable one. “Nobody talked to me about [this], other than you guys,” she suggested to guffaws. Really? Not only is Clinton being investigated by the FBI, but more than half of the voting public considers her conduct to be of considerable import. If the crowds she is addressing aren’t curious about the matter, it says more about their tolerance for indomitable corruption than anything about the controversy per se. We can only be weeks away from renewed talk of a “vast right-wing conspiracy” . . .
— Charles C. W. Cooke is a staff writer at National Review.