Clinton’s Emails: A Criminal Charge Is Justified Hillary’s explanations look increasingly contrived as evidence of malfeasance mounts day by day.By Michael B. Mukasey
As the number of disclosed classified messages from Mrs. Clinton’s server has climbed above 1,300, her explanations have come to look increasingly improvisational and contrived. Recall that last summer—even after abandoning the claim that she maintained a private email account for convenience and because she was too busy solving the world’s problems to navigate the intricacies of a government account—she insisted that, “I did not send classified information and I did not receive any material that was marked or designated classified, which is the way you know that something is.”
When asked whether she had her server “wiped,” she assumed an air of grandmotherly befuddlement: “What, like with a cloth or something?” she said. “I don’t know how it works digitally at all.”
The current news, reported in the Journal and elsewhere, is that her server contained information at the highest level of classification, known as SAP, or Special Access Program. This is a level so high that even the inspector general for the intelligence community who reported the discovery did not initially have clearance to examine it.
The server also contained messages showing her contempt for classification procedures. This was bred at least in part by obvious familiarity with exactly “how it works”—such as when, an email shows, she directed a staff member simply to erase the heading on a classified document, converting it into “unpaper,” and send it on a “nonsecure” device.
Information disclosed by the State Department also reflects that in August 2011, when the State Department’s executive secretary suggested that he could provide Mrs. Clinton with a BlackBerry that would keep her identity secret but might generate communications that would be discoverable under the Freedom of Information Act, Huma Abedin, Mrs. Clinton’s closest aide, intervened and said the idea “doesn’t make a whole lot of sense.”
Further, Mrs. Clinton’s own memoir, “Hard Choices” (2014), apparently written at a time when she wished to stress how delicate were the secrets she knew, and how carefully she handled them, reports that she “often received warnings from Department security officials to leave our [BlackBerrys], laptops—anything that communicated with the outside world—on the plane with their batteries removed to prevent foreign intelligence services from compromising them.
“Even in friendly settings we conducted business under strict security precautions, taking care where and how we read secret material and used our technology,” Mrs. Clinton tells readers. She even read classified material “inside an opaque tent in a hotel room. In less well-equipped settings, we were told to improvise by reading sensitive material with a blanket over our head.”
The FBI’s criminal investigation of messages on the server initially related solely to Mrs. Clinton’s possibly unlawful mishandling of classified information. The investigation has now metastasized to include “the possible intersection of Clinton Foundation donations, the dispensation of State Department contracts and whether regular processes were followed” as Fox News’s Catherine Herridge reported Jan. 19, quoting an intelligence source.
Which is to say, the FBI wants to know whether those messages, combined with other evidence, show that donors to the Clinton Foundation received special consideration in their dealings with the agency Mrs. Clinton headed.
Whatever the findings from that part of the probe, intelligence-community investigators believe it is nearly certain that Mrs. Clinton’s server was hacked, possibly by the Chinese or the Russians. This raises the distinct possibility that she would be subject to blackmail in connection with those transactions and whatever else was on that server by people with hostile intent against this country.
No criminality can be charged against Mrs. Clinton in connection with any of this absent proof that she had what the law regards as a guilty state of mind—a standard that may differ from one statute to another, depending on what criminal act is charged.
Yet—from her direction that classification rules be disregarded, to the presence on her personal email server of information at the highest level of classification, to her repeated falsehoods of a sort that juries are told every day may be treated as evidence of guilty knowledge—it is nearly impossible to draw any conclusion other than that she knew enough to support a conviction at the least for mishandling classified information.
This is the same charge brought against Gen. David Petraeus for disclosing classified information in his personal notebooks to his biographer and mistress, who was herself an Army Reserve military intelligence officer cleared to see top secret information.
The simple proposition that everyone is equal before the law suggests that Mrs. Clinton’s state of mind—whether mere knowledge of what she was doing as to mishandling classified information; or gross negligence in the case of the mishandling of information relating to national defense; or bad intent as to actual or attempted destruction of email messages; or corrupt intent as to State Department business—justifies a criminal charge of one sort or another.
But will it be brought? That depends in part on the recommendation of FBI Director James Comey, a man described by President Obama, at the time the president appointed him, as “fiercely independent.” If no recommendation to charge is forthcoming, or if such a recommendation is made but not followed by the attorney general, what happens then?
Would the public stand for it? My guess is not. However, my guess is also that we won’t be put to that test because our public officials will do their duty.
Mr. Mukasey served as a U.S. district judge (1988-2006) and as U.S. attorney general (2007-09). He is an adviser to Jeb Bush on matters of national security.
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