The Corner

Law & the Courts

Obama’s Defense of Hillary Clinton’s E-mail Server Was Irrelevant

On yesterday’s Fox News Sunday, President Obama defended Hillary Clinton’s private e-mail server and downplayed the suggestion that she had played fast and loose with classified information. Among other things, the president said this:

WALLACE: Since then, we’ve learned that over 2,000 of her e-mails contained classified material, 22 of the e-mails had top-secret information.  Can you still say flatly that she did not jeopardize America’s secrets?

OBAMA: I’ve got to be careful because, as you know, there have been investigations, there are hearings, Congress is looking at this.  And I haven’t been sorting through each and every aspect of this.  

Here’s what I know: Hillary Clinton was an outstanding Secretary of State. She would never intentionally put America in any kind of jeopardy.

And what I also know, because I handle a lot of classified information, is that there are — there’s classified, and then there’s classified. There’s stuff that is really top secret top secret, and there’s stuff that is being presented to the president or the secretary of state, that you might not want on the transom, or going out over the wire, but is basically stuff that you could get in open source.

One doesn’t need to go down the Clintonian there’s-classified-and-then-there’s-classified rabbit hole in order to grasp that what Obama is saying here is irrelevant to the larger questions at hand. For a start, per 18 USC 1924, if Clinton became “possessed of documents or materials containing classified information of the United States . . . with the intent to retain such documents or materials at an unauthorized location,” she’s guilty of a crime. That the president doesn’t think that the material involved was “classified classified” is neither here nor there. The law is written clearly, and it does not contain a section subjugating the meaning of its key words to the expedient musings of the commander-in-chief.

As for Obama’s supposition that Clinton “never intentionally put America in any kind of jeopardy” . . . well, that may indeed be the case. But, again, it’s besides the point. Under 18 USC 793(f)(1)-(2), it is a felony for anybody to transmit information “relating to the national defense” through unapproved channels. Furthermore, the relevant legal standard there is not “knowledge” but “gross negligence.”

At present, the FBI is looking into whether Clinton can reasonably be held to have broken these two laws. If it finds that she has, neither the president’s careful parsing nor his self-serving character references should count for much at all.

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