Hillary -- Don't Look Down!

If you listen to Hillary Clinton, or speak with her liberal supporters, what all will insist is that the email scandal now enveloping her campaign is all about politics. Hillary repeated the mantra recently in Iowa at a contentious news conference. Talk to almost any Hillary supporter and they will say the same. They did in Iowa, where she received rapturous support at a campaign appearance, just before the media (and especially Ed Henry of FOX) confronted her with some difficult questions. The problem for Hillary and her supporters is that those difficult questions are not about politics, they are about law and legal jeopardy, and in this case at least, one thing has little to do with the other. But neither lawyer Hillary nor her campaign can acknowledge this fact, because once they do, Hillary is toast.

Hillary violated federal law with respect to both keeping and securing records for posterity, and in mishandling national security documents. There is nothing really to quibble about here. Everybody who has worked with classified material knows and understands that Hillary violated federal statutes regarding the preservation of records and most critically of those related to securing classified material. 

This is not supposition. It is already part of the public record. Hillary did not comply with the requirements of the Federal Records Act to preserve all of her official work-related correspondence, classified or not. This was pretty obvious at the outset, back in March when the existence of her email server was revealed. Her document dump last spring was meant to alleviate that liability, while at the same time making it difficult for potential prosecutors to determine whether or not the dump amounted to compliance. But if there were any doubt that she did not comply with the FRA, that disappeared when her email exchanges with Sidney Blumenthal, which were not included in her dump,came to light. That is more than probable cause. Absent some defense (none apparent) that is a violation of the law, plain and simple. That such violations are rarely prosecuted doesn’t change the fact, any more than getting off with a warning doesn’t mean you didn’t run the red light.  

On the other hand, violations of federal laws and regulations dealing with classified material are routinely and rigidly prosecuted, in a very draconian fashion, as General David Petraeus can confirm. What’s more, millions of people know this from personal experience, having worked in the federal government or military in some capacity. Leaving even a low-level classified document on your desk (marked "Confidential", say) and walking away from it, even in a secure office, will likely get you a serious reprimand the first time, fired the second. Do it with a Top Secret document and you’re probably fired right away.Taking the document home (Confidential, Secret or Top Secret) puts you in jail. 

Hillary not only took classified material home (via email) she kept it there, and then gave it to a third party to dispose of. These are facts that we already know, and that Hillary has confirmed with her own admitted conduct: 1) procuring her personal email server 2) sending and receiving classified material on that server (it doesn’t matter whether it was marked classified when she received or sent it), and 3) disposing of classified material on her hard drive (she did not, even as the secretary of state, have the authority to do that.)  Again, this is more than probable cause -- it is proof of guilt, absent some effective defense (none apparent.)

Finally, Hillary is probably guilty of obstructing justice, by wiping her server clean to impede an investigation, though this will have to await the FBI’s forensic examination of the drive. 

A prosecutor with an online degree from -- to borrow a classic line from “The Simpsons” -- the Beverly Hills Upstairs Law School, could prosecute Hillary’s violations of the federal records and security laws. The prosecutors actually reviewing the matter are obviously much better than that, and reportedly the same team that successfully prosecuted Petraeus for considerably less. Absent political interference from the Obama administration, she almost has to be indicted. 

But even with political pressure, the career FBI agents and federal prosecutors will be reluctant to let this go. Other scandals within the Obama administration had at least a colorable partisan political tint to them, and/or involved matters of judgment concerning national issues. These factors more easily allow political actors within agencies to manipulate the ethical boundaries of their subordinates. However, Hillary’s email problems are entirely personal, all about her own privacy and paranoia. They are political or policy driven only in the sense that Hillary is a powerful politician, and was a secretary of state. Still, that’s not to say Obama and his minions could not kill this for Hillary if the president really put the pressure on. 

So will Obama try to do it? No, he won’t. It’s a dilemma for him, but a solvable one.  He’s got his arch-rival (and her husband) possibly at his mercy, although Hillary’s collapse might well mean Republican victory in 2016 and the undoing of his American transformation. But even if he could frustrate a prosecution (at some risk to himself), Hillary is already damaged goods and likely to blow it in 2016. 

The signal that Obama will let Hillary go down probably was Joe Biden’s recent statement labelling the Marine Corps Reserve attacker a jihadi. As Thomas Lifson pointed out at the time, it likely indicated that Biden was testing the political waters to Hillary’s right. But it almost certainly means that Biden had Obama’s okay to do it, since if nothing else, Joe is a good Democrat soldier and does Obama’s bidding. It’s unlikely Biden would have stepped away from Obama’s “no jihadi” policy, unless Obama saw it was to his political advantage. It is, because it makes Obama appear tougher on domestic Islamist terrorism without having to use the terminology himself, and sets Biden up as a rival to Hillary. 

Unusually for Obama, he will now probably do the right thing, which is to let the investigation of Hillary take its course without political interference. Sooner is better for Obama (and Biden), though ironically his Justice Department is well practiced in delay. But unusually, the investigation is being run out of D.C., blocks from the White House. Supposedly this is for national security reasons (significant enough in itself) but it also suggests that things will run their course with Hillary a lot faster.   

This is why Hillary remains so focused on the politics, and why she will ignore the imprecations of liberals like the Washington Post’s Eugene Robinson to come clean with the country. She’s a lawyer, and smart enough to know she broke a bunch of laws, about which there is little to argue. And without Obama helping her out -- and Biden’s slow emergence is telling her he will not -- her legal fate is close to sealed. Hillary is like a cartoon character that’s run off the cliff but keeps aloft by churning its legs and not looking down. She and her supporters know that once she acknowledges this is a legal matter and not just politics, she’ll crash and become a puff of dust in the deep and distant canyon.  

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