Thanks to Clinton’s flouting of record-keeping laws, the substance of her communications with the president — on Benghazi, say — remains a mystery.
By Andrew C. McCarthy — March 10, 2015
Politico is reporting that President Obama knowingly corresponded with then–Secretary of State Hillary Clinton via the latter’s private e-mail address. That does not necessarily mean Obama knew Clinton was systematically flouting administration rules and federal record-keeping law. It does, however, mean he and administration officials had to know she was conducting official business over non-secure, non-government e-mail — even in communicating with the president of the United States; even though the White House claims Obama, as his top aide Valerie Jarrett puts it, “has a very firm policy that e-mails should be kept on government systems”; and even though the president and the State Department forced the resignation of Obama’s ambassador to Kenya, in part over his use of private e-mail to conduct government business.
Four points bear emphasizing.
1. We are not dealing in this scandal with run-of-the-mill federal officials. As Kevin Williamson pointed out in his excellent column over the weekend, President Obama is the head of the executive branch. As a matter of constitutional law, all executive power is reposed in him; his subordinates exercise power only at his indulgence. Similarly, Clinton was the head of the State Department, answering only to the president. As a department head, she was obliged, as a core part of her duties, to enforce compliance with federal laws and administration policies — a big part of which involves personally following them.
As I related in Faithless Execution, the Framers prioritized presidential accountability in designing the Constitution:
Indeed, the main point of having a unitary executive — vesting awesome powers in one president, rather than in an executive committee or in a minister advised by a privy council — was accountability. Ultimately responsible for all executive conduct and unable to deflect blame for wrongdoing, Alexander Hamilton argued, a single president would be amenable “to censure and to punishment.” The future Supreme Court justice James Iredell concurred: the president would be “personally responsible for any abuse of the great trust reposed in him,” a key ingredient in making him “of a very different nature from a monarch.”
In sum, as the chief executive, the president is responsible for any failures or misconduct by his subordinates.
With the help of a sympathetic media, President Obama studiously strikes the pose of a spectator who has no responsibility for the actions of his underlings (or, for that matter, for the negative consequences of his own policies). Clinton takes an “everybody does it” tack in attempting to explain away her derelictions. Even if it is true that many federal employees occasionally break record-keeping rules, “everybody” in government does not systematically operate outside those rules, as Clinton did. But put that aside. The head of a department is not an “everybody.” Even as the former secretary of state is preparing to ask the country to put her in the ultimate leadership position, we are evidently supposed to overlook the deplorable leadership example she set in her last gig.
2. A theme of Clinton’s coming campaign is to be that she is more realistic and hawkish when it comes to America’s enemies than the hard-left Obama Democrats that are the party’s mainstream. In reality, this is nonsense: There is little if any real daylight between Clinton and Obama on foreign and national-security policy — that’s why she lasted four years as secretary of state. But let’s, as Clinton might say, engage in the “willing suspension of disbelief” on that for the moment. What does it say about Clinton’s purported realism about America’s enemies that she would conduct the highest-level government business — matters of life and death — on an unsecure communication system that could be easily hacked by hostile nations that we know spend prodigious amounts of their energy on cyber-espionage?
3. One of the main things we can confidently deduce from the Obama–Clinton private e-mail communications is that what we’ve been hearing the past several days about the president’s insistence on sound record-keeping practices and transparency is so much hot air. If Obama personally and willingly communicated a number of times with then–secretary Clinton via her private e-mail address, then he had reason to know that she was not complying with stated administration policy (and State Department policy) to conduct government business on government e-mail systems. He also had reason to be concerned — if he really cared — that she was violating government record-keeping laws and procedures. (We can’t say he knew for certain because the record-keeping laws allow a federal official to communicate by private e-mail as long as a record is preserved. But, common sense says, the more often and routinely one observes that a government official is using private e-mail, the more likely it becomes that the laws are being flouted.)
Most tellingly on this score: Secretary Clinton plainly knew that the president was not serious about stringent record-keeping and transparency. Otherwise, she would not have dared communicate with him repeatedly by private e-mail — and, of course, he would not have been sending e-mail to her private address.
4. While the wayward communication procedure followed by Clinton and indulged by Obama tells us a great deal, it is not as important as the substance of their communications. As I’ve previously observed, Obama and Clinton clearly knew, from the first minutes of the Benghazi terrorist attack — in which four American officials were killed, including our ambassador to Libya — that it was, in fact, a terrorist attack. Within two hours, they knew that the local al-Qaeda affiliate had claimed credit. Yet, Secretary Clinton put out a deceptive statement shortly after 10 p.m. that night blaming an anti-Muslim video for the violence. That statement was issued only minutes after a phone call between Clinton and Obama — a phone call the White House initiallysaid never happened, changing its story only after Clinton testified about it.
In the weeks that followed, the Obama administration aggressively promoted the fraudulent narrative that the video caused the Benghazi violence and buried the fact that it was a terrorist attack with involvement by al-Qaeda — the organization Obama was then claiming on the campaign trail to have “decimated.” Obama and Clinton even recorded public-service messages for Muslim audiences overseas, implying that the video had caused the attack. Secretary Clinton told Charles Woods, the father of former Navy SEAL Tyrone Woods, who was killed in the Benghazi attack, that the administration would “make sure that the person who made that film is arrested and prosecuted” . . . and soon after, the Justice Department arrested and prosecuted Nakoula Basseley Nakoula, the producer of the video, as if he were the real culprit.
It is difficult to imagine anything more potentially relevant to the investigation of the administration’s actions in connection with Benghazi than to explore the substance of all Clinton’s communications by whatever medium — particularly the Obama–Clinton communications — throughout the evening of September 11, 2012, and in the days and weeks that immediately followed.
How can it be that obtaining Clinton’s private e-mails was not a priority for the governmental bodies that have investigated, or are investigating, the Benghazi affair? Not just the House select committee currently tasked with the probe; how, for example, could the House Intelligence Committee have purported to complete an investigation and issue a report without learning of Secretary Clinton’s private e-mail? And, if (as I suspect) the Intelligence Committee did know about the private e-mails, why were we not told about them? How could the State Department’s Accountability Review Board (ARB) — whose mission was to assess the State Department’s performance in connection with Benghazi — not have discovered or reported the fact that the secretary of state was using private e-mail that was not part of the government records?
Oh, that’s right: Secretary Clinton handpicked the ARB, which conveniently chose not to interview her (it’s not like she was an important witness or anything, right?). Meanwhile, her top aides allegedly removed pertinent documents from the files the State Department delivered to the ARB.
How positively . . . Clintonian.
— Andrew C. McCarthy is a policy fellow at the National Review Institute. His latest book is Faithless Execution: Building the Political Case for Obama’s Impeachment.