Hillary and the Law of the Jungle
Hillary Clinton claims the email scandal that hovers over her presidential campaign is all about politics. She’s right, but not in the sense that she would like people to believe, i.e., that a “vast right-wing conspiracy” is persecuting her -- again. In fact, she has undoubtedly violated the laws of the United States with her reckless and dangerous use of a private email account that exposed the most highly classified documents the country possesses to foreign intelligence services. That she has not already been charged and locked up (as would have happened to almost anyone else who did the same) is because of politics. Under the “law” of the political jungle her status and power have protected her. But the law of the jungle only protects the strong. And as Hillary grows weaker politically, her vulnerability to the laws of the United States grows considerably. If this trend continues, Hillary’s down-trending political weakness will intersect with the up-trending evidence against her, and when that happens, the jaws of American justice should snap tight on Mrs. Clinton.
The recent revelation that Special Access Programs documents (commonly known as "code-word level" when I worked in the State Department Bureau of Intelligence and Research many years ago) were among the classified documents that passed through Hillary Clinton’s unsecured private email is shocking. But in a pure legal sense, the level of classification makes no difference under the relevant statutes. No classified documents can be transferred into in unsecure environment, whether deliberately or by negligent conduct.
That the FBI merely continues to investigate the case is mostly a matter of politics based on Mrs. Clinton’s remaining clout. Likewise, that Mrs. Clinton can denounce as a political attack the report of an independent inspector general identifying her violations (by a man appointed by President Obama and confirmed by a then Democrat Senate) and not be laughed out of public life is purely a matter of her political status.
Thus, the significance of the code-word documents is political not legal. As anyone who has worked with classified documents knows (including FBI Director James Comey and the agents that serve under him) the case against Mrs. Clinton for mishandling documents at lower levels of classification was already cut and dried. The code-word documents make the likely damage to national security worse, heightening the political pressure on Clinton.
President Obama described Comey as possessing “fierce independence” when he appointed the FBI Director. Since that was Obama’s description, we can assume Comey is something less than that, though that is not to say he is a complete tool of this administration, like his nominal superior, Attorney General Loretta Lynch. He no doubt maintains a degree of independence, both because that is his charge as FBI director, his own political history (he worked for the previous Republican administration) and probably his own desire not to be seen as totally beholden to the president.
On the other hand, in considering whether to move against Mrs. Clinton, Comey has a lot to weigh, regardless of his loyalty to the president or his independence. Going after Clinton if the president clearly opposes it (as appears to be the case) is not only politically dangerous for Comey personally, but his agency as well.
Even if Comey is principled in the matter, and doesn’t regard his own political fortunes as paramount, he might feel that moving against the presumptive nominee of one of the country’s two major parties will be reasonably seen by many as an illegitimate political move. He would be in effect a kingmaker, denying the American people the right to make their own judgements about Mrs. Clinton in a general election. Of course, one can make the same argument the other way -- that Comey, in treating Mrs. Clinton differently from an ordinary citizen, is violating both the letter and spirit of our Constitutional system, which is fundamentally based on equality before the law.
It is quite obvious that Comey will not let purely legal considerations guide him, or he would have already referred charges against Mrs. Clinton to the Justice Department. An airtight case against Clinton on multiple charges will help insulate the FBI against charges that the move is political. So the FBI continues to accumulate evidence, while Comey likely keeps a finger to the political winds.
Therein lays the significance of the code-word documents. While the level of classification doesn’t directly impact legal liability, it does have political implications in and out of government. Within the intelligence community there must be increasing agitation over the revelations, which have almost certainly led to serious security breaches thanks to foreign hacks on Mrs. Clinton’s vulnerable private server. And even if the average citizen has never heard of SAP classification, the idea that documents “above” top secret that passed through Clinton’s unsecured server will stick a little better in the fleeting public consciousness.
But Comey probably thinks he need more, and this helps explain why the FBI is also investigating whether Mrs. Clinton misused her position as Secretary of State to favor contributors to her family foundation. And as I surmised here, it is likely that the FBI is also investigating charges relating to a deliberate cover-up of the matter by removing data from Clinton’s private server. These charges, added to the security violations, will make it easier for Comey to buffer accusations of a purely political referral to the attorney general.
The final element is Clinton’s own political strength. As long as she was the strongest member of the herd, she could keep the FBI at bay, but as she weakens politically she becomes increasingly vulnerable. Taking out the “inevitable” Democrat candidate makes Comey a kingmaker, but taking out someone who is not even the Democrat front-runner is another matter. Clinton is decidedly not the inevitable nominee, polling behind Bernie Sanders in New Hampshire, with Iowa a tossup. In general, her campaign looks ever more nervous. Clinton is an awful politician who has not generated any real enthusiasm except with big donors and liberal women over a certain age. Her evasions and lies regarding the email scandal chip away further at her already low level of perceived honesty, whereas Sanders has endeared himself to the Democrat base not only by his leftist positions, but his apparent forthrightness. Thus, he benefits from the email scandal even though he refuses to attack Clinton on it, making him seem principled to boot (to the Democrat base at least.)
Hillary Clinton fundamentally is not a powerful political animal but rather a woman who rode her husband’s coattails to national prominence. Her chronic political liabilities have been demonstrated again and again, which is why the aura of inevitability was so critical to her both in 2008 and today -- not only to dissuade potentially dangerous rivals from opposing her, but to fend off her multifaceted malfeasances, not limited to the email scandal. As Clinton’s political vulnerability becomes obvious, her legal jeopardy increases. Predators in the wild and in politics do not like to strike unless and until the prey is weak and vulnerable. Clinton is almost there. The FBI is probably waiting.