By Andrew C. McCarthy
Saturday, October 15, 2016
Among the most noteworthy of the hacked e-mails from John
Podesta’s accounts is an exchange in which Podesta consults Clinton consigliere
Cheryl Mills about the private e-mail exchanges between President Obama and
then-Secretary of State Hillary Clinton.
As readers may recall, I have long maintained that the
principal reason why Mrs. Clinton was not prosecuted, despite a mountain of
evidence that she committed felony mishandling of classified information, is
the fact that Obama engaged in the same kind of misconduct. The president’s use
of a private, non-secure channel to discuss sensitive matters with high level
officials may not have been systematic, as Mrs. Clinton’s was. (Obama’s
disturbing use of an alias, however, suggests that Clinton was not the only one
he was privately e-mailing.) Nevertheless, the fact that the president was
e-mailing Clinton means he not only participated in her misconduct but also
that the Obama-Clinton e-mails would have been admissible evidence in any criminal
trial of Clinton.
For the parties to prove such culpable conduct on the
president’s part in a high-profile criminal trial would have been profoundly
embarrassing to him, to say the least. Therefore, it was never going to happen.
As I’ve noted before, after exclaiming, “How
is that not classified?” upon being shown an Obama-Clinton e-mail by the
FBI, Hillary’s confidant Huma Abedin asked agents if she could have a copy of
the exchange. She obviously realized that if Obama had been communicating on Clinton’s non-secure server system,
no one else who had done so was going to be prosecuted for it.
We now know that Podesta was very concerned about the
Obama-Clinton e-mails and turned to Mills for advice. His succinct e-mail to
Mills is dated March 4, 2015 (at 8:41 p.m.), and he entitled it “Special
Category.” He stated:
Think we should hold emails to and
from potus? That’s the heart of his exec privilege. We could get them to ask
for that. They may not care, but I [sic] seems like they will.
Plainly, Podesta was suggesting to Mills that the
Obama-Clinton e-mails were in a “special category” — i.e., distinct from the
tens of thousands of other Clinton e-mails — because they involved the
president. Only the president has power to invoke executive privilege, and
Podesta believed such invocation would legitimately cover a communication
between Obama and his secretary of state, since such consultations are “the
heart of” the privilege recognized by the Supreme Court in United States v. Nixon. (I think he was wrong about that, but
that’s a matter for another day.)
If Mills ever responded to Podesta’s question, we do not
have an e-mail to that effect. It is unlikely Mills would have ignored Podesta,
particularly on a matter of such significance. Thus, I suspect further
discussion was had face-to-face, by phone, or through intermediaries.
The timing of the March 4 Podesta-Mills e-mail is highly
significant. The date places it about three weeks after Podesta left his White
House job as the president’s top advisor in order to head up the Clinton
presidential campaign; the transitioning Podesta was still involved in Oval
Office doings, and the Clinton campaign was up and running though not yet
publicly launched. More significantly, the e-mail occurred when both the administration
and the campaign were in crisis mode: It was immediately after the New York Times publicly exposed
Clinton’s private e-mail system, and the House Benghazi committee had just
issued a subpoena, demanding that Clinton preserve and provide any private
e-mails within the scope of the committee’s investigation.
With that as background, we should consider three salient
matters.
1. Obama’s
Concealment of His E-mails with Clinton
In the days immediately after the Times’ revelation of Mrs. Clinton’s systematic use of private
e-mail to conduct government business, President Obama sat for interviews in
which he claimed that he’d learned of Clinton’s personal e-mail use through
“news reports” like everyone else. He flatly denied that he had any personal
knowledge about the matter. Clearly, the president was lying to the American
people: He knew he personally had engaged in several e-mails with Clinton. By
extension, Obama was also lying to the Congress. As he well knew, congressional
committees had been investigating matters (most prominently, Benghazi) in which
communications between Obama and Clinton were of immense importance. Now, we
know Obama not only had intimate personal awareness of what Clinton was doing;
his top White House advisor, Podesta, was both aware of and concerned about the
Obama-Clinton e-mails.
Did Obama figure that because he had used an alias, the
public and the Congress would never find out about his e-mails with Clinton
(and with whomever else he has been exchanging e-mails while using the alias)?
Did the president figure he could quietly invoke
executive privilege such that no one would ever find out about his e-mails with
Clinton?
Given that Obama was manifestly determined to conceal his
e-mails with Clinton, what is the chance that he would ever have permitted a prosecution of Clinton, which would
necessarily have exposed those e-mails? To repeat what I’ve been arguing, I’d
rate it as something less than non-existent.
2. The Benghazi
Angle
We know that on the evening of March 4, when Podesta
e-mailed Mills, the matter of greatest concern to the fledgling Clinton
campaign was the House Benghazi committee’s subpoena for former Secretary
Clinton’s private e-mails. Before Podesta contacted her, Mills received an
e-mail from Robby Mook, the Clinton campaign manager. There had been discussion
among Clinton operatives about whether the State Department would release all
of the e-mails Clinton had turned over (i.e., the 30,000 she had surrendered, not
the 33,000 she had withheld and would soon undertake to destroy). Mook thus
wanted “clarity” on whether “this House subpoena is just for Libya, right?”
Mills replied that this was “right.”
In the midst of this discussion about the subpoena, Mills
received Podesta’s message about the Obama-Clinton e-mails — just a half-hour
before she responded to Mook. Given that the House subpoena was
front-and-center at the time, one must ask whether Podesta was concerned about
possible connections between the Obama-Clinton e-mails and Benghazi. To be
sure, this is not necessarily the case. The Clinton camp and the Obama White
House were also dealing with the overarching problem of how to handle the
e-mail mess in general. Any
Obama-Clinton e-mails were going to be a problem for both the White House and
the Clinton campaign, not just any Benghazi-related e-mails.
Still, the Benghazi question must be asked. Among the
most central Benghazi issues were whether Obama-Clinton communications had
occurred and, if so, what they were about. For example, why did the White House
first deny that Obama had been in contact with Clinton on the night of the
terrorist attack when, in fact, the two had spoken on the phone around 10 p.m.?
Was there a connection between this call and the statement by Secretary
Clinton, issued almost simultaneously, which blamed the anti-Muslim video
(rather than al-Qaeda affiliated jihadists) for the attack?
To this day, the Obama-Clinton e-mails have not been made
public. Quite apart from the question of why the president and secretary of
state were communicating on high-level policy matters over a private,
non-secure channel, there remains the question whether any of their e-mail
communications were related to Benghazi — the appalling lack of security before
the attack, the disgraceful lack of a military response during the attack, or
the cynical “blame the video” cover-up after the attack.
3. The Obama
Justice Department and FBI Ignore and Destroy Cheryl Mills’s E-mails
Let’s place the Podesta e-mails (with Mills and other
Clinton campaign operatives) in broader context. Not only did they occur right
after the public revelation of the Clinton homebrew server and the House
subpoena. They occurred in the midst of what we know are communications between
Mills and Platte River Networks, the contractor servicing the Clinton server.
In late March, Paul Combetta, the PRN technician with whom Mills was in touch,
deleted and undertook to destroy all the e-mails on Clinton’s server —
including the 33,000 that Clinton had never provided to the State Department,
and that she falsely claimed involved only personal matters and contained no
classified information.
At a minimum, the Podesta e-mails demonstrate that, when
Clinton’s homebrew system was revealed, the reaction among Obama-Clinton
operatives was not stunned disbelief. Their conduct was, instead, what one
would expect from people who were well aware of Clinton’s e-mail situation, and
who now understood their mission was to control damage and minimize disclosure.
This state-of-mind evidence would have been crucial to any prosecution against
Clinton and her confederates for mishandling classified information, destroying
government files, or obstruction of justice.
Since that is so obviously the case, and would have been
even more obviously the case to FBI agents and prosecutors working on the
Clinton e-mails investigation, why on earth would the Justice Department make a
deal with Cheryl Mills that prevented the FBI from examining her e-mails during
this critical March 2015 time frame?
Consider just one small example: As noted above, it does
not appear that Mills replied in writing to Podesta’s March 4 e-mail about
concealing the Obama-Clinton e-mails. Did Mills e-mail others in the Clinton
camp about the matter? We’ll probably never know. The Justice Department agreed
that the FBI would not examine anything on Mills’s laptop computer post-dating
January 31, 2015 and, unbelievably, that the FBI would destroy the laptop after
its limited examination.
Why would the Justice Department grant Mills immunity
from prosecution and negotiate such severe restrictions on the FBI’s ability to
review and preserve her e-mails in exchange for access to Mills’s laptop
computer? After all, they could have forced Mills to produce the laptop,
without making accommodations, by simply issuing a grand-jury subpoena.
And why, after Mills asked for and received immunity from
prosecution for her conduct, would the Justice Department and the FBI permit
her to sit in — as a lawyer — on
Clinton’s FBI interview, a decision that not only flouted ethical rules and
federal law but would also have damaged the case against Clinton had there been
an indictment?
Try this for a theory: Since President Obama had used an
alias to discuss sensitive matters on Clinton’s private, non-secure e-mail
system, had then falsely denied knowledge of that system, and had decided to
conceal his e-mails with Clinton from the public, the Justice Department knew
that no one was ever going to be prosecuted anyway. The Justice Department and
the FBI could rationalize cutting otherwise inexplicable deals that they would
never cut in a case they were actually trying to make because they knew there
was not going to be a case — not against Mills, not against Clinton, not against
anyone.
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