Politics & Policy

Even if You Believe the Left’s Excuses, Hillary Clinton Still Violated Criminal Law

(Reuters photo: Lucas Jackson)
The most charitable possible reading of the evidence cannot vindicate Clinton.

Last Friday, Twitter provided a near-perfect window into America’s divided, polarized soul. That afternoon, the FBI released its heavily redacted report and interview notes regarding Hillary Clinton’s e-mails, and the responses could not have been more different.

The Right side of the Twitterverse melted down. Some of the revelations were stunning. Hillary’s team wiped her server after the New York Times disclosed its existence — at the same time that Hillary herself was publicly calling for the release of her e-mails to the public. Incredibly, Hillary told investigators that she didn’t pay attention to the “level” of classification attached to e-mail communications and didn’t know what the (C) classification meant. She conveniently “forgot” numerous key facts. And — finally — though she used 13 e-mail-capable mobile devices during her tenure as secretary of state, her lawyers were unable to locate any of them. Thus, the FBI was unable to conduct a forensic examination and was unable to definitely determine if her e-mail had been hacked.

In short, what the FBI file revealed was the extent of the Clinton deception operation, complete with lurid details — such as aides smashing old Blackberries with a hammer, an IT employee declaring an “oh s***” moment as he rushed to delete files, and Cheryl Mills participating as an attorney in the proceedings even though she was a witness and possible subject in the investigation.

There are those on the Left side of the Internet who looked at the same report, read every word, and declared that it actually exonerated Clinton. Here is former Obama speechwriter Jon Favreau pointing out perhaps the most influential piece by Kevin Drum:

Drum is one of the more thoughtful political writers — Left or Right — and is always worth reading. So I clicked on the link confident that it would provide the most persuasive possible defense of Hillary Clinton.

It’s not persuasive. Essentially, it boils down to a decision to believe the vast majority of Clinton’s excuses and rationalizations (regardless of their credibility) without credibly dealing with the true elephant in the room, the presence of highly classified information on a private, homebrew server. Here’s Drum totally believing the explanation for wiping Hillary’s server after she received a subpoena from the Benghazi committee:

It had nothing to do with anyone around Hillary Clinton. An IT guy at PRN [Platte River Networks] realized one day that he’d forgotten about the retention order and went ahead and implemented it. The report makes clear that Cheryl Mills sent an email, which the PRN techie received, telling PRN about the preservation request from the Benghazi committee. The techie said he knew it meant he shouldn’t disturb the Clinton server, but apparently got confused and didn’t realize this meant he shouldn’t touch the old archives or the backups.

So the IT guy just got “confused.” Well, maybe, but Drum left out some rather important context. On March 25, 2015, PRN had a conference call with Clinton’s staff. We don’t know the substance of that call. Between March 25 and March 31, PRN had its now-famous “oh s***” moment and systematically deleted e-mails. On March 31, it had yet another call with Clinton’s staff, but the contents of that call were withheld through assertion of attorney-client privilege.

Do you still believe the deletion “had nothing to do with anyone around Hillary Clinton?”

#share#But that’s a side issue. At the end of the day, even if you believe that Clinton truly set up her server for “convenience” and not to circumvent Freedom of Information Act requests, even if you believe that conveniently timed deletions were done entirely by accident, even if you believe that 13 mobile devices (and one laptop) can basically disappear into thin air, and even if you believe that the secretary of state isn’t actually familiar with a common classification marking — we are still left with the FBI’s assertion that she received, sent, and retained classified information on an unclassified system that was less secure than Gmail.

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This is absolutely, unquestionably improper and contrary to applicable federal law, but is it criminal? After all, it is a violation of criminal law for a person — through “gross negligence” — to remove information “relating to the national defense” from its “proper place of custody.” Yet a total of seven e-mail chains contained the most sensitive possible information — classified at the level of Top Secret/Special Access Program — when they were sent and received using Clinton’s private e-mail. Multiple other e-mail chains contained secret and confidential information. Even if aides originated the messages (though Clinton sent some), she is still responsible for that information when it lands in her inbox.

In essence, Drum’s defense boils down to this:

Basically, most people the FBI talked to used private email accounts all the time; did their best to keep classified information out of these channels; and didn’t believe that any of the emails they sent included classified information. Other classification authorities have disagreed, as we all know by now, and the entire discussion gives you a taste of how subjective the classification process is. 

In other words, it’s all subjective, and everyone tried to do the right thing. Yet this statement demonstrates a fundamental misunderstanding of how classification works. Yes, there is some play at the margins — for example, it is often (though not always) a judgment call whether confidential information should be unclassified, or secret information should be confidential — but the idea that a person in good faith could believe that TS/SAP information is actually unclassified is simply preposterous.

As anyone who’s handled classified information knows, there are regulations, standard operating procedures, and guidelines that remove much of the subjectivity from the analysis. Entire categories and classes of information are automatically classified. When I was in Iraq, generating classified information in the form of reports and analysis from the battlefield, the vast majority of the time I wasn’t making a judgment call but rather applying clear policy. Indeed, the true judgment calls were few and far between.

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But even if you believe the fiction that classification decisions (including the gap between TS/SAP and unclassified) are subjective, there’s strong evidence from the FBI report that Clinton’s staff knew exactly what they were doing:

Authors of the e-mails stated that they used their best judgment in drafting the messages and that it was common practice at State to carefully word e-mails on UNCLASSIFIED networks so as to avoid sensitive details or “talk around” REDACTED classified information.

As the Wall Street Journal reported in June, aides on occasion tried to “talk around” highly-classified subjects to avoid disrupting their holidays.

There’s a word to describe that kind of behavior — criminal. These employees knew they were referring to classified matters. They intended to communicate the substance of classified information on unclassified systems. Then they kept those communications on unsecure, unclassified systems. Anyone who believes that savvy foreign powers can’t crack ad hoc “talk around” code is, frankly, being idiotic, gullible, or both. “Gross negligence” is the kindest phrase to describe this practice, and declaring it “common practice” at State does not exonerate any of the participants.

#related#Drum says “there is remarkably little here.” Yet soldiers and sailors are routinely prosecuted and punished for equivalent or even lesser acts, including in cases that never make the media. I’ve seen it with my own eyes. I’ve participated — as a JAG officer — in the process.

In other words, even if you believe the explanations and rationalizations of a known liar — as Drum apparently does — the undisputed, known facts still point to criminal wrongdoing. Hillary Clinton had classified information on her homebrew server. She sent it. She received it. She kept it. On this point, it doesn’t matter if she maintained that server for convenience or to evade FOIA. It doesn’t matter if records were wiped through a mistake or to evade a subpoena. Her behavior contains the elements of a federal crime, yet she is escaping prosecution entirely. It must feel good to be a Clinton.

— David French is an attorney and a staff writer at National Review.

Editor’s Note: This piece has been amended since its initial posting.


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