At sixty-eight years old, Hillary Clinton is very old and very tired. This week, she’s slogging along the campaign road, her media minions in tow, trying to convince the gullible among Iowa’s likely caucus-goers that she’s not part of the Democratic establishment.
Everyone knows, especially Clinton, that this is her last shot at the presidency. The greatest obstacle to her nomination is not Bernie Sanders. It’s the FBI’s long-term investigation of her conduct as secretary of state.
The FBI is investigating two aspects of Clinton’s conduct while she was secretary of state: first, the handling of classified information — up to and including top secret/special access program information — on her private email system; second, the possibility that Clinton, as secretary of state, sold American foreign policy to the highest bidder who wanted to contribute to the Clinton Family Foundation or pay Bill another $500,000 for a twenty-minute speech.
To begin we have to recognize the obvious: that her private email system was set up for a corrupt purpose, namely to ensure that she had control over all the communications she sent or received as secretary of state. We know that she tried to erase tens of thousands of emails to the State Department for their review, an act in furtherance of the corrupt purpose. The FBI has probably recovered most or all of them. Keep that in mind as you read what follows.
By establishing her non-government system, Clinton intended to thwart the government’s ownership of her in-the-line-of-duty communications and to keep the emails under her control at all times. From that fact, and the actions she took, arises the problem she has under the federal criminal law.
Clinton has said repeatedly that she never sent or received any emails which contained information that was marked classified at the time of the messages. Those weasel words are irrelevant for several reasons, not the least of which is that she — as secretary of state — knew that classified information is not always marked as such and she had a personal duty — not something she could delegate to subordinates — to recognize and protect that information.
Clinton’s defenders have jumped to absurd conclusions and gone off on wild tangents. Some have suggested that Hillary’s email system is being investigated but that she is not. Others — most of whom I suspect have never held a security clearance — have mouthed nonsense such as suggesting that Clinton is suffering needless pain because the government classifies too much stuff. Garbage, all of it.
We know from press reports that about 1,300 of the emails Clinton sent and/or received on her private email system were classified. Many were at the “secret” level and some were at the “top secret/sensitive compartmented information” level. Some were “SI/TK” — special intelligence/Talent Keyhole — satellite intelligence information that is as highly classified as anything can be.
Some were from “humint” — human intelligence (i.e., gathered by spies on the ground whose lives are at immediate risk if the information is disclosed to anyone not having a U.S. government clearance entitling them to read it and having a need to know it).
The seriousness of these facts are illustrated by a 14 January letter to the chairmen of the Senate Intelligence and Foreign Affairs committees, I. Charles McCullough III, the inspector general of the intelligence community. McCullough gave specific information that shows the depth of Clinton’s failures to protect our most closely held secrets.
To date, I have received two sworn declarations from one IC [intelligence community] element. These declarations cover several dozen emails containing classified information determined by the IC element to be at the CONFIDENTIAL, SECRET, TOP SECRET/SAP levels. According to the declarant, these documents contain information derived from classified IC element sources. Due to the presence of TOP SECRET/SAP information, I have provided these declarations under separate cover to the Intelligence oversight communities and Senate and House Leadership.
What McCullough said is enormously important. First, that the classification of some Clinton emails that were passed through and resided on her private email system contained information that was derived from intelligence assets that themselves are so highly classified that their mere existence cannot be divulged. His statement that some of the information is at the Top Secret/Special Access Program level means that even the members of the House and Senate Intelligence committees aren’t cleared to be told of it. Only the “Big Eight” — the intelligence committees’ leaders and the House and Senate leaders — can have access to it.
Keep in mind how Clinton was outraged when a Bernie Sanders campaign staffer accessed some election materials on Clinton’s supposedly secure campaign website at the Democratic National Committee. Compare that to her denials of the importance of what was transmitted and left unsecured on her private email system.
“SI/TK” intelligence, for example, is “special intelligence/Talent Keyhole” information gathered by spy satellites. SI/TK material, like “TS/SCI” — Top Secret/Sensitive Compartmented Information — is so sensitive that only a handful of people are allowed know parts of it and fewer still can know of the whole picture.
Some, like a couple of Clinton’s emails, referred to information from “SAPs” — special access programs — like the products of spies. In the Pentagon, we had “SAPs,” which were code-word programs whose very existence was kept secret. In the intelligence world and in the Pentagon, there is nothing more highly classified, and nothing more strenuously protected.
Clinton has almost certainly violated two criminal statutes in respect to handling classified information.
The first is rather simple. Under Title 18 US Code Section 1924, anyone who has lawful access to classified information and “…knowingly removes such documents or materials to an unauthorized location shall be fined under this title or imprisoned for not more than one year…”
Clinton’s private email system is an unauthorized location. It was never cleared for classified information. Moreover, the company she hired to maintain the system — Platte River Networks — also was never cleared, but they maintained access to it and eventually were given the server hard drives in a last-ditch effort to hide them.
Last September, Bryan Pagliano, a State Department IT staffer who was paid separately by Clinton to help maintain her private email system, asserted the Fifth Amendment privilege against self-incrimination when called to testify on her email system by the Benghazi congressional investigating committee. An offer of immunity to Pagliano should get him to reveal how he worked with Clinton and to what ends.
Using an unprotected, unauthorized email system left all Clinton’s emails vulnerable to the certainty of hacking and interception by Russia, China, Iran, and a host of terrorist networks. They knew what she knew as soon as she did. Remember, please, that criminal intent can be inferred from a person’s actions. The FBI knows this. The creation and use of the private system were, as we already analyzed, for a corrupt purpose.
Clinton clearly violated Section 1924 every time she sent or received a classified email. At a year for each separate violation and 1,300 classified emails (and counting), that could amount to a really long prison sentence for her.
And that’s before we get to Title 18 US Code Section 798. That law bars anyone who has lawful possession of classified “defense information” from “…willfully communicat[ing], deliver[ing], transmit[ting] or caus[ing] to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it…” classified information. By her use of a private, unsecured email system for such purposes, Clinton clearly violated this law.
We know that, because Clinton knowingly and willfully communicated such information on an unprotected email system, she made it highly vulnerable to interception by any foreign government or terrorist group with the ability to hack into her server. We know that China, Russia, Iran, ISIS, al-Qaeda, and a host of others have that ability.
That should be sufficient for a jury to find that she knowingly and willfully made that information available to an “unauthorized person” be it China, Russia, or Iran. Tack on another ten years for each of the emails that included communications intelligence information. There are probably dozens if not hundreds.
Clinton, if she’s indicted, is in for a long trial and the possibility of a very long prison sentence.
And we’re not nearly done. The public corruption part of this case — which is harder to investigate and to prove — may be the part that actually kills Clinton’s shot at the presidency.
The federal conflicts of interest law — Title 18 US Code Section 208 — has not been discussed much in Clinton’s case because the FBI hasn’t said anything about it, other than it has some of the 150 agents working the case assigned to that part of the case.
Under Section 208, any federal official who takes action — by decision, refusal, or whatever — on any matter coming before her in which she had a personal financial interest is guilty of a felony punishable by imprisonment for up to five years. If Clinton did anything for any foreign government, company, or individual that was in return for a donation to the Clinton Family Foundation or another big-dollar speech by Bill, that was a violation of Section 208.
Those actions may also have been a violation of the federal bribery statute, Title 18 US Code Section 201, another felony.
All of these possibilities — thousands of emails, hundreds or thousands of transactions with the Clinton Family Foundation and Bill’s speeches — are under investigation.
If, as it seems more likely each week, the FBI wants to charge Clinton with these criminal acts, the Justice Department is going to be hard-pressed to say no. If Attorney General Lynch does say no, you may see some very loud resignations by senior FBI agents over that decision, maybe even that of FBI Director James Comey.
As a wise man I know has asked, how many FBI investigations end with their statement that everything’s fine and nobody has to be prosecuted? In a political campaign, it’s unwise to bet against Clinton. In a criminal investigation, it’s equally unwise to bet against the FBI.
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