Hillary Clinton’s spinmeisters are working overtime to deal with the latest developments in her ongoing e-mail scandal. They have an increasingly tough road to hoe as the Clinton cover-up begins to unravel.
The FBI investigation of the handling of classified information on Hillary’s personal e-mail account, which she used for all her government business while serving as Secretary of State, is underway. Her campaign announced on August 11th that she has directed her aides at long last to turn over to federal investigators her private server and a thumb drive containing copies of her e-mails. Hillary’s campaign is trying to portray her decision as evidence of her cooperative spirit. This is utter nonsense, considering that she has refused to turn over her server for months to any independent third party. Last March, during a press conference she held at United Nations headquarters shortly after the e-mail scandal first broke, Hillary declared that “the server will remain private.” Moreover, her lawyer David Kendell, who had possession of the thumb drive, said that the server and its backup located at a technology company in Colorado had been wiped clean. If that is true, and the e-mails she has not already turned over cannot be retrieved through technical means, Hillary could be in hot water on obstruction of justice grounds alone.
For the Clinton campaign to claim that Hillary is voluntarily turning over her server now – more than five months after her UN press conference when she insisted it would remain private – is like saying that we pay our income taxes every year solely out of the goodness of our hearts.
On the same day that Hillary Clinton finally decided to turn over her server to the FBI, the inspector general for the intelligence community notified senior members of Congress that two of four classified e-mails he had inspected contained “top secret” information, which means that it was so highly sensitive it merited the highest possible security classification. The inspector general’s finding followed his examination of the 40 e-mails in the stack of approximately 30,000 e-mails Hillary had turned over to the State Department as work-related (the remaining 31,000+ e-mails on the server were deleted), which the State Department had allowed him to examine. Moreover, it appears that Hillary and her team made no effort to encrypt any of the e-mails while stored on her server or while being sent to or from her personal e-mail account.
Hillary has flatly denied that she ever sent or received classified information in her private e-mail account. The inspectors general for the intelligence community and State Department found otherwise. Then the story put out by the Hillary campaign was modified to say that the information was not deemed classified at the time it was sent or received. That was not true either, said the inspectors general. At least some of the classified information they found was classified when it was sent and still is classified.
“This classified information never should have been transmitted via an unclassified personal system,” Steve A. Linick, the State Department inspector general, said in a statement signed last month by him and I. Charles McCullough III, the inspector general for the intelligence community.
Backtracking even further, Hillary Clinton’s team argued that she had done nothing wrong since the information was not properly labeled “classified” at the time it transited her private system. How, they ask, could Hillary reasonably know that any information contained in the reams of e-mails transiting her private system was classified unless it was clearly identified as such at the time?
At best, this amounts to an ignorance of fact or innocent mistake defense. Hillary did not know at the time the relevant information was sent or received through her personal e-mail account that any of the information was classified, the argument goes. Thus, her legal defense to any charge of criminal wrong-doing regarding her handling of classified information would be that she did not have the state of mind to commit any criminal offense in violation of the applicable national security laws. Her campaign keeps harping on the fact that at the present time Hillary is not a target of a criminal investigation. Rather, the FBI and Department of Justice inquiry is said to be focused on the security dimensions of classified information ending up on Hillary’s private account.
The FBI and Department of Justice investigation is in its early stages. Whether Hillary and/or senior members of her staff who used their own private accounts, or had access to Hillary’s personal account, become direct targets of a criminal investigation at some point in the future remains to be seen. However, it would behoove Hillary’s lawyer, David Kendall, to brush up on the law of recklessness and criminal negligence. The fact that information was not labeled as classified at the time Hillary sent, received or stored such information on her personal unsecured e-mail account does not automatically exonerate her of any criminal responsibility.
"Top Secret" is a classification reserved for information, the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to national security. In her position as Secretary of State, it is safe to assume that Hillary would be exposed to highly sensitive intelligence and other national security-related information on a fairly regular basis. Using a private, unsecured system for all government-related e-mails she sent or received as Secretary of State and not taking any basic protective measures such as encryption is bad enough. Not reading each e-mail very carefully to ascertain whether any information contained in each of them referenced intelligence sources or on its face would appear to be dealing with very sensitive diplomatic or military matters, and not implementing a system to immediately isolate and turn over such e-mails to the appropriate government authorities, is worse. Such dereliction of duty could be considered acting with a gross lack of care that rises to the level of a criminal offense.
Some critics question why Hillary should receive any more lenient treatment than, for example, former CIA Director David H. Petraeus, who was sentenced to two years’ probation and a $100,000 fine after pleading guilty to charges that he mishandled classified information.
Separate and apart from the FBI and Department of Justice investigation, Hillary Clinton and her top aides were required by a federal judge in a Freedom of Information lawsuit initiated by Judicial Watch to make a statement under penalty of perjury that they had turned over all work-related e-mails in their possession.
Hillary Clinton submitted the following declaration to the court: "While I do not know what information may be 'responsive' for purposes of this law suit, I have directed that all my e-mails on clintonemail.com in my custody that were or potentially were federal records be provided to the Department of State, and on information and belief, this has been done."
The statement provides Hillary a little wiggle room (by using the phrase “on information and belief”) to maneuver around a perjury charge if a few stray e-mails show up that should have been turned over and were not. However, if all the deleted e-mails can be recovered from her server and a pattern emerges that numerous work-related e-mails were not turned over but were deep-sixed instead, Hillary may risk being charged with perjury as well as obstruction of justice.
Aside from her legal woes, Hillary Clinton’s candidacy is taking a big hit as her poll numbers continue to decline. A new Franklin Pierce University/Boston Herald poll shows Senator Bernie Sanders surging ahead of Hillary in the key first-in-the-nation primary state of New Hampshire. Sanders leads Clinton 44-37 percent among likely Democratic primary voters in this latest Franklin Pierce University/Boston Herald poll. Last March, just as the e-mail scandal was beginning to emerge, Clinton led Sanders in the same poll by a 44-8 margin.
On the key measure of trustworthiness, Hillary’s numbers are falling. For example, in a Quinnipiac University poll last month, before the latest developments, 34 percent of Colorado voters thought Hillary can be trusted; 62 percent did not. In Iowa, 33 percent said she could be trusted to 59 percent who said no. In Virginia, the percentages were 39 percent positive on trust to 55 percent negative.
Hillary Clinton’s judgment and competence must also be questioned. As Judge Andrew Napolitano succinctly put it, "She was Secretary of State of the United States. If she doesn't know what cannot be published to the world, what cannot go through a non-secure server, she shouldn't be in that job."
A 35-year-old reservist was dismissed from the Marine Corps after e-mailing, using his personal e-mail account, a classified document to U.S. military officials in Afghanistan who had requested the document.
After seeing such lack of basic common sense and lack of good judgment on the part of Hillary Clinton in the loose handling of her work-related e-mails, more and more Americans may come to believe for good reason that Hillary does not deserve a promotion to the office of President and Commander-in-Chief of the United States.
Hillary Clinton does not have anywhere close to her husband’s slickness to slither out of this crisis of her own making. Legally and politically, the truth is rapidly catching up with her and may well overtake her.