Politics & Policy

The Justice Department’s Hillary Stonewall

Attorney general Loretta Lynch (Chip Somodevilla/Getty)

When it comes to Hillary Clinton’s e-mail scandal, the most important thing to bear in mind — even more than classified information — is this: It was all about avoiding accountability.

It still is.

Mrs. Clinton did not set out to damage national security and compromise defense secrets, although she obviously had no compunction about doing so as necessary to serve her higher personal interests. For a generation, she has been a public person whose most intimate companion has been scandal. She knew her State Department stewardship would be no different. Her motive in designing a communication system that circumvented government recordkeeping and disclosure laws was to avoid a day of reckoning as she campaigned in 2016 for the power of the presidency she craves.

And that is where Loretta Lynch comes in.

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That would be the same Loretta Lynch who came to prominence in 1999 by being appointed United States Attorney for the Eastern District of New York by none other than Mrs. Clinton’s husband. Loretta Lynch, who had a history of significant political contributions to Democratic-party candidates before President Obama reappointed her as U.S. Attorney for the EDNY in 2010, and then elevated her to U.S. attorney general in 2015. Loretta Lynch, who said in her confirmation hearings that she supports the Democratic president’s lawless executive actions and non-enforcement of federal law. Loretta Lynch, who very much likes being attorney general of the United States and would be well positioned to continue in that powerful post in a Hillary Clinton administration.

The known evidence that Mrs. Clinton committed federal crimes is abundant, perhaps even overwhelming. It is manifest that she lawlessly transmitted and stored classified information outside its secure system, and that she caused her underlings to do so. But remember, there is also the evidence that is unknown to the public — though it is being pored over by the FBI: the 32,000 e-mails Clinton refused to turn over to the State Department (which involved converting them to her private use) and attempted to destroy by trying to delete them (i.e., to wipe her private server clean).

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As I’ve previously pointed out, the federal embezzlement statute makes it a felony to destroy government files or convert them to one’s private use. The FBI has reportedly been able to recover at least some and possibly all of the e-mails Clinton tried to erase. Unless you really believe that one of the busiest high officials in the U.S. government had time for 32,000 e-mails about yoga routines and Chelsea’s wedding dress, it is inevitable that some of those e-mails, probably a goodly portion, related to State Department business — i.e., they were government files.

With such neon indicators of serious wrongdoing, it seems highly likely that the FBI, which has reportedly devoted substantial time and resources to the investigation, will recommend prosecution. For all we know, that may have happened already. Once such a recommendation has been made, the ball is in the Justice Department’s court: It will be up to Attorney General Lynch — with whatever direction she gets from her boss, the president — to decide whether to indict Clinton.

An indictment would be devastating to the Democrats’ chances of retaining the White House in the November election. Thus, the conventional wisdom holds that Lynch will decline prosecution, which the executive branch has the unreviewable constitutional power to do, regardless of how damning the proof of crimes might be.

#share#But what if the conventional wisdom is wrong? And to be clear, I am not suggesting that Lynch will shock the world by approving an indictment against her party’s candidate for the presidency.

What if Loretta Lynch simply decides to . . . do nothing?

You’ve no doubt noticed throughout the last seven years that the Obama administration is quite insistent on its discretion not to enforce congressional statutes, notwithstanding the president’s constitutional oath to see that the laws are faithfully executed. Well, just as no law may compel the Justice Department to prosecute a case, there is also no law that requires the attorney general to decide whether to prosecute within a specific period of time, much less to explain a decision not to prosecute — if such a decision is actually made.

RELATED: Hillary’s E-mail Recklessness Compromised Our National Security

The FBI can make a recommendation to prosecute in the strongest terms based on the most convincing evidence. But not only does the FBI have no power to force the Justice Department to prosecute; it has no power to force the Justice Department to decide whether to prosecute.

The Obama Justice Department, during Eric Holder’s tenure and continuing into Ms. Lynch’s stewardship, has been the most politicized in American history. It is often observed that, in using the executive’s law-enforcement powers against the administration’s adversaries, the real weapon is the process, not the ability to trump up charges and make them stick. The Justice Department’s stable of community organizers and “social justice” crusaders know that persons, organizations, and companies can be ruined by the mere threat of an indictment — even if one is never forthcoming. “Suspects” can be financially bankrupted and emotionally wrecked by the incessant demands for documentary information, interviews by federal agents, requests for grand-jury testimony, and so on. The Justice Department can stretch the vexatious process out for years. Innocent people can be pressured to plead guilty, just as innocent businesses and even municipal police departments can be browbeaten into signing intrusive settlements (“consent decrees”), just to get the unbearable, prohibitively expensive process over with.

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What you rarely hear about, though, is the other side of this coin: Just as the investigative process can be made the worst nightmare of a rogue administration’s foes, it can be a lifesaver for that administration’s friends. To cut to the chase: The Justice Department never has to make a decision, never has to say “yes” or “no” to an indictment.

No matter how much evidence the FBI gathers, prosecutors can always say they are not ready to present the case to the grand jury until this or that tangential lead has been run down. No matter how much media and public interest there is in the progress of an investigation, prosecutors can always say that grand-jury secrecy rules and the integrity of the evidence-gathering process dictate that the Justice Department make no public comment while potential charges are being considered . . . and considered . . . and considered . . .

#related#The Clinton e-mail scheme has always been about avoiding accountability, about denying the public a window into Hillary Clinton’s disastrous decision-making, her deceptive public pronouncements, and the promiscuous interplay between State Department and Clinton Foundation business. The goal was to keep Secretary of State Clinton’s communications from the public until after the 2016 election, at which point President Clinton would be well positioned to bury them permanently.

Now, the goal is in sight. To pull the scheme off, all Clinton needs is for the current (and future?) attorney general to stonewall for another eight months. Don’t forget: The Obama Justice Department has been stonewalling on the egregious Fast and Furious investigation — in which a federal agent was murdered — for over five years. You don’t think Lynch can tap dance for eight months?

The question is, Will the public, the media, and the Republican-controlled Congress let her do it behind the Clintonian curtain?

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


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