RUTHFULLY YOURS

There was panic in Camp Clinton when President Obama falsely told the public he had not known about then-Secretary Hillary Clinton’s use of private e-mail until he heard about it “through news reports.”

In reality, Obama and Clinton exchanged at least 18 e-mails through Clinton’s private account and homebrew server system. And we now know, based on investigative reports released by the FBI, that Obama used a pseudonym in at least some of his e-mails with Clinton. Moreover, as I noted in a column ten days ago, top advisers to Obama and Clinton flagged the Obama–Clinton e-mails problem before Obama issued his false denial of knowledge.

Asked by Bill Plante of CBS News in a March 7, 2015, interview when he learned about Clinton’s private e-mail system, the president responded, “The same time everybody else learned it through news reports.”

This assertion spun the Clinton campaign up, according to the latest WikiLeaks disclosure of e-mails hacked from the account of John Podesta. A longtime Clinton aide, Podesta was Obama’s top White House adviser until transitioning to the Clinton presidential campaign, which he chairs, in February 2016.

At 6:15 p.m. on March 7, Clinton campaign secretary Josh Scherwin e-mailed Jennifer Palmieri and several other Clinton campaign staffers, alerting them: “Jen, you probably have more on this but it looks like POTUS just said he found out HRC was using her personal email when he saw it in the news.”

Nick Merrill, one of the staffers included in Scherwin’s e-mail, forwarded it minutes later to Mrs. Clinton’s confidant, Cheryl Mills (among others). Later that evening (at 9:41 p.m.), Mills e-mailed Podesta, informing him: “We need to clean this up — he has emails from her — they do not say state.gov.” To be clear, Mills was affirming that Obama and Clinton had e-mailed each other, and that it was done via Clinton’s private e-mail address — Clinton did not use a government “state.gov” e-mail address, as State Department officials are supposed to do.

Some significant context should be added to these most recent disclosures. As I discussed in the aforementioned column, the New York Times publicly disclosed Mrs. Clinton’s non-secure, homebrew e-mail system on March 2, 2015. This immediately prompted the House Benghazi Committee to issue a letter demanding that Clinton preserve her “private” e-mails, an action the committee followed up on March 4 with a subpoena demanding production of any Clinton e-mails relevant to the Benghazi investigation.

The subpoena spurred discussion among Clinton’s campaign team about how to respond. Campaign manager Robby Mook asked for “clarity” on whether the House subpoena was “just for Libya” — meaning, that it called for production of only those e-mails pertinent to the 2012 Benghazi terrorist attack. Mills later confirmed that this was the case.

In the interim between Mook’s question and Mills’s answer on March 4, Podesta e-mailed Mills to raise the issue of Clinton’s e-mails to and from Obama. Podesta suggested that the president invoke executive privilege to keep them confidential — such that neither the public nor Congress would get access to them. As Podesta put it: “Think we should hold emails to and from potus? That’s the heart of his exec privilege.”

To summarize, Obama obviously knew about his e-mails with Clinton through her private account — e-mails on which he concealed his identity by using an alias. Furthermore, Obama and Clinton’s top advisers were well aware of the Obama–Clinton e-mails, and were considering how to conceal them on March 4, in the immediate aftermath of the Benghazi Committee’s subpoena. Yet, three days later, Obama falsely claimed he had not known about Clinton’s private e-mail usage until hearing about it in news reports. This clearly startled the Clinton team, leading Mills to tell Podesta: “We need to clean this up.”

The way they “cleaned this up” was to invoke executive privilege on all of the Obama–Clinton e-mails, as Podesta had originally suggested. The administration did not want to say the words “executive privilege.” Not only is the term suggestive of Watergate-style obstruction; it would have subjected the president to ridicule, given his smarmy March 7 assurance — after falsely denying knowledge about Clinton’s private e-mail — that “the policy of my administration is to encourage transparency, which is why my e-mails, the BlackBerry I carry around, all those records are available and archived.”

So instead of formally invoking executive privilege, Obama effectively did it by having the State Department off-handedly announce that the Obama–Clinton e-mails were being withheld from the court-ordered Freedom of Information Act production of Clinton’s e-mails in order “to protect the President’s ability to receive unvarnished advice and counsel but [the e-mails] will ultimately be released in accordance with the Presidential Records Act.” That act effectively suppresses Obama’s correspondence for between five and twelve years after he leaves office.

As one would expect, the State Department insisted that the Obama–Clinton e-mails “have not been determined to be classified.” Acknowledging that the subject matter of the exchanges was classified would have been tantamount to an admission that the president engaged in the same misconduct as Clinton. Concealing the e-mails under the cloak of executive privilege and presidential records obviated the need to designate them as classified.

In its famous Watergate ruling, United States v. Nixon, the Supreme Court held that an invocation of executive privilege to secure the confidentiality of presidential communications will not shield those communications from disclosure if they are relevant evidence in a grand-jury investigation or a criminal trial.

Of course, if a grand-jury investigation is never opened (as the Obama Justice Department refused to open one in the Clinton e-mails case, despite substantial evidence of criminality), then there can never be an indictment or a criminal trial. Very convenient.

— Andrew C. McCarthy is a senior policy fellow at the National Review Institute and a contributing editor of National Review.