Wednesday, February 03, 2016

Obama’s Growing Conflict of Interest in the Clinton E-Mail Scandal

By Andrew C. McCarthy — February 3, 2016

Barack Obama and Hillary Clinton at a Cabinet meeting on Nov. 28, 2012. (Jewel Samad/AFP/Getty Images)

The latest revelations regarding Hillary Clinton’s mishandling of classified information are stunning. For example, several of the former secretary of state’s “private” e-mails contain national-defense information so sensitive that it is classified at the highest levels.

Moreover, classified information so pervades the thousands of pages of e-mails communicated through and stored on Mrs. Clinton’s unsecured, homebrew server system that the court-ordered disclosure process has ground to a halt. Remember, Mrs. Clinton reviewed her e-mails before finally surrendering them to the State Department, and she initially insisted there was no classified information in them. Now, it turns out they were so threaded with classified information that the State Department and intelligence agencies have fallen hopelessly behind the court’s disclosure schedule: The task of reviewing the e-mails and redacting the portions whose publication could harm national security has proved much more complicated than anticipated. Thousands of remaining e-mails, and any embarrassing lapses they contain, will be withheld from voters until well into primary season.

So egregious have the scandal’s latest developments been that a critical State Department admission from last week has received almost no coverage: Eighteen e-mails between Mrs. Clinton and President Obama have been identified, and the government is refusing to disclose them.

The administration’s rationale is remarkable: Releasing them, the White House and State Department say, would compromise “the president’s ability to receive unvarnished advice and counsel” from top government officials.

Think about what this means. Not only is it obvious that President Obama knew Mrs. Clinton was conducting government business over her private e-mail account, the exchanges the president engaged in with his secretary of state over this unsecured system clearly involved sensitive issues of policy. Clinton was being asked for “advice and counsel” — not about her recommendations for the best country clubs in Martha’s Vineyard, but about matters that the White House judges too sensitive to reveal.

That explanation got me to thinking about General David Petraeus. Recall that the Obama Justice Department prosecuted Petraeus for mishandling classified information. His offense involved conduct narrower in scope than Mrs. Clinton’s systematic transmission and storage of classified information on her private system.

What is the relevance of Petraeus’s case? Well, in order to outline the factual basis for his guilty plea, the Justice Department filed a document describing the information involved. In the main, it was the classified contents of the general’s journals. Among the most significant of this information, according to the prosecutors, were notes of “defendant DAVID HOWELL PETRAEUS’s discussions with the President of the United States of America.”

In light of Mrs. Clinton’s numbing repetition of the legally irrelevant talking-point that the classified information found throughout her thousands of e-mails was not “marked classified,” it bears emphasizing that General Petraeus’s journals were not marked classified either. That did not alter the obvious fact that the information they contained was classified — a fact well known to any high government official who routinely handles national-defense secrets, let alone one who directly advises the president.

Moreover, as is the case with Clinton’s e-mails, much of the information in Petraeus’s journals was “born classified” under the terms of President Obama’s own executive order — EO 13526. As we’ve previously noted, in section 1.1(d) of that order, Obama directed: “The unauthorized disclosure of foreign government information is presumed to cause damage to the national security.” In addition, the order goes on (in section 1.4) to describe other categories of information that officials should deem classified based on the national-security damage disclosure could cause. Included among these categories: foreign relations, foreign activities of the United States, military plans, and intelligence activities.

If the administration is refusing to disclose the Obama-Clinton e-mails because they involved the secretary of state providing advice and counsel to the president, do you think those exchanges just might touch on foreign-government information, foreign relations, or foreign activities of the United States — deliberations on which are presumed classified?

Will anyone in the press corps covering the White House and the State Department ask administration officials whether this is the case?

I believe some, if not all, of the communications between Obama and Clinton should be classified. To classify them now, however, would imply wrongdoing on both their parts since they knew they were communicating via private, unsecured e-mail. Essentially, Obama is invoking executive privilege because the effect of doing so — viz., non-disclosure of the e-mails — is the same as the effect of classifying them would be . . . but without the embarrassment that classifying them would entail.

Of course, Petraeus did not get executive-privilege treatment. His communications with Obama were deemed classified and he was prosecuted for failing to safeguard them.

To summarize, we have a situation in which (a) Obama knowingly communicated with Clinton over a non-government, non-secure e-mail system; (b) Obama and Clinton almost certainly discussed matters that are automatically deemed classified under the president’s own guidelines; and (c) at least one high-ranking government official (Petraeus) has been prosecuted because he failed to maintain the security of highly sensitive intelligence that included policy-related conversations with Obama.

From these facts and circumstances, we must deduce that it is possible, if not highly likely, that President Obama himself has been grossly negligent in handling classified information. He discussed sensitive matters on a non-government, non-secure e-mail system that could easily be penetrated by foreign governments (among other rogue actors). By doing so, he left an electronic- and paper-trail that was outside the government’s tightly secured repositories for classified information. He also personally indulged, and thus implicitly endorsed, Clinton’s use of private e-mail to do government business.

Law enforcement investigations are supposed to proceed independent of political considerations, but I’d wager few people believe the decision whether to indict Mrs. Clinton will be made by Attorney General Loretta Lynch alone. It will be the president’s call. In making it, he may face a profound conflict of interest. A prosecution of Clinton might expose that Obama engaged in recklessness similar to Clinton’s, albeit on a far smaller scale. Moreover, Clinton would likely argue in her defense that the president, who is ultimately responsible for safeguarding classified information, not only authorized Clinton to use private e-mail but knowingly used it himself in order to communicate with Clinton.

As we’ve observed, Obama is already under immense political pressure not to permit an indictment that would doom his party’s presumptive presidential nominee. Now, factor in the embarrassment a prosecution could cause the president personally. Many have asked why Hillary Clinton has not been charged already. We may have our answer.

— Andrew C. McCarthy is as senior policy fellow at the National Review Institute and a contributing editor of National Review.

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