By Paul David Miller thefederalist.com 7, 2016
What exactly Hillary Clinton may have done wrong regarding her email use while serving as secretary of State from 2009 to 2013 has been the subject of a numbing bureaucratic back-and-forth between the State Department and the Office of the Director of National Intelligence (ODNI) for most of 2015. The State Department recently released the seventh tranche of her emails in a batch of eight court-ordered releases before the end of January.
But that is only one of three separate legal issues that have arisen thus far relating to Clinton’s email use. First, Clinton set up a private email server and a personal email account to handle her government correspondence. A federal judge ruled in Augustthat this violated government policy, which any first-year desk officer in the State Department could have told you. Clinton admitted it was a “mistake” and apologized, despite continuing to claim, falsely, that it was allowed. If the email server was allowed, it’s unclear what Clinton was apologizing for.
Second, some reports state that someone erased data or deleted emails from Clinton’s private email server before she handed it over to the Federal Bureau of Investigation. Erasing or destroying evidence during an ongoing federal investigation is a textbook case of obstruction of justice. This is the crime for which articles of impeachment were drawn up against presidents Richard Nixon in 1974 and Bill Clinton in 1998.
Third: probably the most serious—and misunderstood—issue is that Clinton and her aides repeatedly sent classified information over a computer system not cleared for it. Last month, the inspector general of the intelligence community reaffirmed his previous ruling that Clinton had indeed mishandled classified information.
Despite earlier reports that only a small handful of emails had contained classified information, it is now clear that nearly 1,300 emails contained classified information, and the number is likely to rise. “Unauthorized removal or retention of classified information” is a serious offense and a federal crime—former National Security Advisor Samuel Berger and former Central Intelligence Agency Director David Petraeus both pled guilty to the charge and paid fines; the former lost his security clearance and latter his job.
The FBI, the Office of the Director of National Intelligence, and the State Department have been jointly and independently investigating Clinton’s handling of classified information throughout 2015, driven by the State Department’s obligation to respond to a Freedom of Information Act request. However, only the FBI can bring charges. Unfortunately, the chances of an Obama-appointed federal prosecutor bringing charges against the front-runner for the Democratic Party’s nomination for president in an election year are zero.
Because of the obvious political issues involved, Sen. John Cornyn called for the attorney general to appoint a special prosecutor in September, and almost four dozen members of Congress joined him last month. Just as obviously, this will never happen for the same reason that no federal prosecutor is likely to file charges.
As for Clinton’s Response
Clinton and her supporters have generally dismissed the accusations about her email use. They claim that while maintaining a private server showed poor judgment, it was technically allowed. A federal judge has already ruled otherwise. This issue is settled: Clinton was wrong.
Her supporters argue that because the emails were on a private server, Clinton had the right to review them, delete “personal” emails, and only hand over work-related emails. This is, of course, probably one of the reasons Clinton set up the private server—to make it easier for her to conceal the content of her correspondence. It is also a perfect illustration of why personal email accounts and personal servers aren’t allowed.
Allowing Clinton to decide which emails to hand over and which she can conveniently delete is allowing her to be judge and jury in her own cause, a blatant violation of basic principles of an independent and unbiased judiciary. It would also set a terrible precedent for all future public servants, enabling and even encouraging them to take action purposefully designed to make it harder for the American people to see what is going on inside their own government. Basic principles of transparency and accountability are at stake.
Supporters argue no emails were marked classified at the time they were sent or received. As I’ve noted before, this is false and based on a misleading—even deceptive—claim about how classified information works. This claim was explicitly contradicted by the inspectors general of both the State Department and the intelligence community, who wrote earlier this year, “These emails were not retroactively classified by the State Department; rather, these emails contained classified information when they were generated and, according to IC classification officials, that information remains classified today. This classified information should never have been transmitted via an unclassified personal system.”
Information is not “retroactively classified.” It is born classified. It may be improperly marked—that is, the originator might fail to mark it as classified—but that only means the author has negligently mishandled classified information, not that the information is not classified.
It sounds complicated, but it’s pretty basic stuff to anyone who has a security clearance and has worked in government. One of the Left’s favorite heroes, Edward Snowden—former National Security Agency contractor and self-confessed spy and traitor—rightly pointed out that any other government employee would be fired and prosecuted for doing what Clinton had done.
What’s At Stake
So why is this a big deal? Another defense Clinton supporters sometimes make—more implicitly than otherwise—is that this was a victimless white-collar slip-up that essentially hurt no one. We shouldn’t let some pencil-pushers derail the career of one of America’s finest public servants and, possibly, the first female president of the United States.
Unfortunately, this defense does not hold up, for three reasons.
Fairness. If Sandy Berger and David Petraeus (and Scooter Libby) can have their careers derailed and legacies besmirched for similar infractions, there is no principled reason why Hillary Clinton should be immune. It is good to hold the elite to a high standard because (I can’t believe I’m going to say this), Snowden has a point. Lesser mortals would not enjoy the sort of immunity Clinton’s supporters assume she deserves because of her exalted status. That’s because….
The Rule of Law. The principle of the rule of law is at stake. It matters that the United States is a government of laws, not men (or women). That means—in case you or Clinton need a refresher—that even rulers are subject to the law. Law is king—lex rex—and, as the Supreme Court building proudly proclaims, we enjoy equal justice under law.
Hillary Clinton has held one of the most powerful offices on the planet, is personally wealthy, and has an Ivy League law degree—all of which buys you exactly zero get-out-of-jail-free cards. She should be held to the exact same standard as you or I.
National Security. Clinton showed exceptionally poor judgment in handling national security information. We simply do not know yet if any material damage was done—if Russian or Chinese hackers were able to access her information, for example. I assume they were, knowing how active and aggressive they are. But let’s assume for a moment they didn’t, and Clinton’s email usage caused no demonstrable harm to U.S. national security. What then?
We should still care, and we should still hold Clinton to account. Clinton is running for the highest office in the land and the most powerful office on the planet. She deserves to be held to the highest standard possible. This is especially the case because we are in the midst of an undeclared cyberwar with China—and we are losing. The next president must grasp with urgency the vital importance of protecting the United States’ digital infrastructure and its national security information.
This issue may come to overshadow terrorism, the war in Syria, and a host of other issues—yes, even climate change—as the major security challenge in the coming era. Is this the time to trust our nation’s defenses to someone with a track record of negligent handling of information technology and mishandling of classified information?
Paul D. Miller teaches public policy at The University of Texas at Austin. He is a research fellow at the Ethics and Religious Liberty Commission. He previously served on the National Security Council Staff from 2007 through 2009. Follow him on Twitter.