Hillary Clinton and the Perks of Being Powerful

By Charles C. W. Cooke

Wednesday, August 12, 2015

From the Associated Press, a headline for the ages: “Clinton Relents, Gives up Possession of Private E-mail Server.”

“Relents” isn’t quite the right word, of course. A better way of putting it would be, “runs out of options.” Since the news first broke, Hillary has run and she has run and she has run, and now the men with guns have caught up with her. “Federal investigators,” the AP confirms, “have begun looking into the security of [the] Clintons’ email setup amid concerns from the inspector general for the intelligence community that classified information may have passed through the system.” What was once casually derided as so much partisan hype has matured into a full-fledged criminal investigation.

There’s another word in the AP’s report that doesn’t belong: “concerns.” Back in July, the Office of the Inspector General confirmed in no uncertain terms that classified information had indeed “passed through the system.” “Emails that contained classified information,” the OIG reported, had been “transmitted via an unclassified personal system.” In consequence — and despite some truly preposterous dissembling from Hillary’s many allies — the question before us now is not so much whether Clinton could be plausibly suspected of having violated a number of federal statutes, but how close we are to knowing whether she is in serious trouble. Heretofore, speculation that Clinton may eventually be on the receiving end of criminal charges has been waved away as idle, perhaps even pernicious, chatter. At this stage in the developments, this is a grave mistake. There are still a good number of “ifs” and “buts,” yes. But we are nevertheless approaching the point at which, should they be so inclined, prosecutors could begin to construct a case.

As it stands, Hillary seems likely to have violated at least two federal laws. They relate to:

1) The illegal storage of classified information. The rules that govern the storage of classified information — laid out for all to see in 18 USC 1924 — hold that “whoever . . . becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both.” By deliberately setting up a home-brewed server in her house that contained classified e-mails — and by copying at least some of those e-mails onto thumb drives and giving them to her lawyers — Hillary Clinton violated this rule. The statute confirms that one cannot become “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.” Surely, Clinton did. (Incidentally, this was the law that General Petraeus broke.)

2) The illegal transmission of classified information. Under 18 USC 793(f)(1)-(2), it is a felony to transmit classified information on the subject of national defense through unapproved channels:

    (f) 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, or

    (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—

    Shall be fined under this title or imprisoned not more than ten years, or both.

If Hillary Clinton either sent, forwarded, or destroyed a single classified e-mail that related to national defense, she will have broken this law. Indeed, whether she did any of these things is one of the key questions that the FBI investigators combing through her server will be seeking definitively to answer. If they should find what they are looking for, Clinton will presumably argue that she did not actively intend to break the rules. Perhaps that will be true. Legally speaking, however, her intentions are wholly and utterly irrelevant. In this area of federal law, the standard isn’t intent, it’s negligence.

The obvious question, then, is this: Given all that we now know, why is the very idea that Clinton may have committed crimes that require punishment still being met with such disbelief? If you are willing and able, forget for a moment that a conservative is posing that challenge, and suppose instead that it has come from a Black Lives Matter activist, or from Glenn Greenwald, or from anybody who is a part of our present conversation about judicial and structural inequality. In such an instance, what do you imagine is the best answer that you would be able to give? Certainly, the government has a great amount of leeway in these circumstances — as so often in life, prosecutorial discretion rules supreme. But to acknowledge that is not to answer the underlying question so much as it is to restate it in different words: To wit: Why, given that the government can choose whom it wishes to prosecute, is it ridiculous to imagine that it would choose to do so if the case involved Hillary Clinton? Meditating upon that inquiry, I cannot help but think that the answer is, “because Clinton is running for president, because she is extremely famous, and because Loretta Lynch is the attorney general.” Is that just?

The Department of Justice is notoriously reluctant to pull the trigger on a prosecution if their doing so could be construed as an overtly “political” act, or if it could swing an election (especially if that possible swing is away from the president’s own party). In a vacuum, one can make a reasonable case in favor of the overall prudence of this approach. But one cannot credibly deny that, whatever virtues it might have to recommend it, this preference will inevitably accord to its beneficiaries a form of legal privilege that is not available to most people who are suspected of having crossed the same statutes. To the many intelligence officials who have been prosecuted by the Obama administration in the last seven years, “she’s running for high office” would presumably not represent a convincing reason for sparing Hillary Clinton the consequences of her indiscretions. Nor should it.

We are at present hearing a great deal of talk about injustice and caprice. Is nobody vexed by the manner in which the suggestion that a prominent figure might actually go to jail is being so casually dismissed?