The New York Times published two stories today that provide an interesting commentary about coverage of Hillary Clinton’s campaign for president. On the front page was a piece of campaign coverage that illustrated the candidate’s failure to make inroads with the voters in recent months. According to the piece that relied on “extensive interviews” with senior staffer members, Clinton is undergoing yet another reboot. The latest “new Hillary” to be unveiled will be more spontaneous and less “wooden and overly cautious.” We’re also told that she will can the inappropriate jokes about her private e-mail server. Those are good ideas even if they are more easily said than done considering how wooden their candidate is on the stump as well as her predilection for gaffes. But those who delved deeper into the paper on page 20 or scrolled down on the politics page of their website discovered an article that was a bit more significant than the one on their front page. According to that piece, another intelligence review has been conducted about two emails that the former secretary of state received on her personal e-mail account. That review found that, contrary to Clinton’s claims, those emails contained classified material including one about North Korea’s nuclear weapons program judged to be “top secret.” If so, then Mrs. Clinton’s biggest problem is not her tin ear for humor or her lack of personal political appeal. It’s that the former First Lady’s decision to use personal emails that were kept on a home server has put both her and top aides, in legal peril.
The Clinton camp has spent the last six months since news of the private email broke trying desperately to downplay the story and represent it as a Republican conspiracy theory. But the plain facts are these. Clinton received, sent, and stored material on an insecure address and server that was classified. Though she says she was allowed to do it and that she broke no rules, the inspector general’s ruling places her presidential ambitions in more jeopardy than a surging Bernie Sanders or the possibility that Vice President Joe Biden might jump into the race.
Let’s first dispense with the notion that this is a political charge. It is true that knowledge of Hillary’s bizarre decision to use a private email for both work and her personal life and to have it stored on a home server was discovered as a result of the investigation into the Benghazi terror attack by House Republicans. But you don’t have to buy into theories that allege that Clinton failed in her responsibility to defend the four Americans who were murdered in Libya to understand that the question of her use of classified material is a very serious business.
It doesn’t matter if you think that Benghazi is old news and that Hillary did nothing wrong or at least not on purpose. The FBI investigation into her emails is not about Benghazi conspiracy theories or the animus that most Republicans have for her. It’s about the way she handled material that she was legally required not to keep on such an insecure system.
Mishandling classified material may seem like a technical offense and in a sense it is. But the government’s policing of this sort of behavior, both under previous administrations and the one she served in as secretary of state, has always been draconian. Intent to do wrong or to leak material is not required to justify a prosecution and many officials, including some high ranking ones, have been subjected to embarrassing prosecutions that either ruined their careers or actually resulted in jail time.
The most obvious analogy is to the fate of David Petraeus, who served as President Obama’s CIA director and was a former four-star Army general who was the hero of the successful Iraq surge. Petraeus was disgraced for giving some classified material he had to his biographer with whom he was having an affair. That seems a lot more culpable, but the basic offense is the same. Merely possessing classified documents in an environment that is not government approved has always been enough to justify prosecution. Nor is Hillary’s not very credible claim that she didn’t know that the material was classified a defense under the law.
What’s worse for Clinton is that we’ve barely scratched the surface of the iceberg mountain of Hillary’s emails. There are thousands more than have yet to be evaluated meaning that the number of those that will turn out to be classified may grown from the current tally of hundreds into thousands. And that’s before the FBI goes through the server that her aides had wiped — and not, as she joked, with a cloth — when they deleted those she claims were personal.
Though Clinton surrogates keep telling us the FBI is not conducting a criminal investigation or doing anything more than looking at the server. But the FBI does not investigate civil cases or machines. They do criminal probes and if, as the Inspector General has just told us, she mishandled classified information, she and her aides are in serious trouble.
I don’t doubt that if a Republican were in the kind of trouble Clinton is in, the story about their legal peril would be on the front page rather than buried in the middle of the paper. But that’s beside the point.
While the debates going on in the Clinton camp about how to retrain their candidate to be funny and appear human are interesting, the people who will decide her fate are not in her Brooklyn headquarters but at the FBI headquarters. It may be that President Obama’s Department of Justice will never allow an indictment of Clinton or her top aide Huma Abedin no matter what they did. This is, after all, an administration with a long record of not enforcing laws they don’t like. But this is actually an offense that has been treated quite harshly over the last seven years. Clinton’s future will depend on whether the DOJ is willing to treat her the same way they’ve treated others who committed not dissimilar offenses.