Hillary Clinton’s allies are carefully implementing a strategy to deal with a possible criminal referral to the Justice Department by the FBI.  Unfortunately, I have to take serious issue with my colleague Rick Moran’s interpretation of a Los Angeles Times story on the FBI’s move to begin formal interviews with Hillary’s aides, and probably with Hillary herself, as the probe moves toward its final phase.

Rick writes:

It appears that federal prosecutors are setting a very high bar when it comes to criminal behavior by Hillary Clinton. 

But the LAT story suggests a “high bar” by quoting outside “experts” who provide tortured rationalizations for not prosecuting Hillary.  We do not know what the prosecutors themselves are saying, because nobody is quoted by name.  And it is the FBI who will make a criminal referral.  The DoJ may very well decline to prosecute, but if that happens and the story is leaked (as it almost surely will be), then Team Hillary needs a counterstrategy.  That’s where the Los Angeles Times story comes in.

 A correspondent aptly summarizes what is wrong with the article:

The conclusions of this article seem to be based on non sequiturs. Seems pretty mindless to me. 

First the article says:

"The bigger question is whether she or her aides distributed classified material in email systems that fell outside of the department’s secure classified system. 

How can this be a question? Her system clearly "fell outside of the department’s secure classified system" and she contrived to send and receive all of her State emails on it. She was the highest ranking officer at State with the highest security clearance. It was inevitable that she would be  sending and receiving classified information outside the department's secure classified system. That's true even if some emails did not become classified until after they were received or sent or even if some of them were over classified. And despite the fact that she destroyed all the emails in her system before the investigation, the investigation has shown that she had many highly classified or top secret emails on her non secure server.

And  even if some other Secretaries of State did exactly the same thing, as she claims, it's  not a defense. And it's also not the case. Apparently someone  sent two former Secretaries one or two emails on their personal email address but that does not show the Secretaries intent and it's a far cry from what Hillary did in setting up a non secure email system to send and receive all her State emails. 

Second, the article suggests that it does not seem that she violated the law because "U.S. law makes it a crime for someone to knowingly or willfully retain classified information, handle it in a grossly negligent manner or to pass it to someone not entitled to see it."

How can It be denied that she knowingly or willfully retained classified information or handled it in a grossly negligent manner" by using her non secure system for all her State emails given that as the highest ranking State officer with the highest security clearance, she would inevitably be retaining highly classified information on her server.

I see the Los Angeles Times as laying the groundwork for Hillary and her supporters to claim that a criminal referral from the FBI would be unjustified, and the result of “overzealous” agents seeking to justify their expensive inquiry.  When Bill Clinton’s scandals were being investigated, the Democrats suddenly became obsessed with the cost of a government program, detailing the spending of Kenneth Starr.  You can expect the Hillary camp to do the same with a criminal referral should it occur.

The Washington Post published an even longer front-page story on the investigation, with a detailed chronology of events.  The key takeaways (hat tip: Ed Lasky, who supplies the emphases):

“The FBI is now trying to determine whether a crime was committed in the handling of that classified material. It is also examining whether the server was hacked. One hundred forty-seven FBI agents have been deployed to run down leads, according to a lawmaker briefed by FBI Director James B. Comey. The FBI has accelerated the investigation because officials want to avoid the possibility of announcing any action too close to the election.”

“The Washington Post reviewed hundreds of documents and interviewed more than a dozen knowledgeable government officials to understand the decisions and the implications of Clinton’s actions.”

 “Clinton’s email problems began in her first days as secretary of state. She insisted on using her personal BlackBerry for all her email communications, but she wasn’t allowed to take the device into her seventh-floor suite of offices, a secure space known as Mahogany Row. For Clinton, this was frustrating. … She hated having to put her BlackBerry into a lockbox before going into her own office. Her aides and senior officials pushed to find a way to enable her to use the device in the secure area. But their efforts unsettled the diplomatic security bureau, which was worried that foreign intelligence services could hack her BlackBerry and transform it into a listening device.”

“Throughout, [those aides] paid insufficient attention to laws and regulations governing the handling of classified material and the preservation of government records, interviews and documents show. They also neglected repeated warnings about the security of the BlackBerry while Clinton and her closest aides took obvious security risks in using the basement server.”

“Few knew the details behind the new clintonemail.com address. But news about her choice to use her own BlackBerry spread quickly among the department’s diplomatic security and ‘intelligence countermeasures’ specialists. Their fears focused on the seventh floor, which a decade earlier had been the target of Russian spies who managed to plant a listening device inside a decorative chair-rail molding not far from Mahogany Row.”

Do as I say, not as I do: “On June 28, 2011, in response to reports that Gmail accounts of government workers had been targeted by ‘online adversaries,’ a note went out over Clinton’s name urging department employees to ‘avoid conducting official Department business from your personal email accounts.’ But she herself ignored the warning and continued using her BlackBerry and the basement server. … Specialists interviewed by The Post said her practices fell short of what laws and regulations mandated.”