By JAMES K. FITZPATRICK
I remain fascinated by how effectively politicians are able to insert talking points into the public dialogue on issues of importance to them. There was an example during one of those focus groups that Frank Luntz conducts on the Fox News network, specifically on the night of Hillary Clinton’s strong showing against Bernard Sanders in the South Carolina primary. The members of the focus group were all Democratic voters.
When Luntz asked if any of them were concerned that Hillary would be indicted because of the way she handled classified emails, the response was the same: They shrugged it off with one version or another of “There is no issue here. The emails were not marked classified.” It didn’t matter that Hillary once assured us that there “was no classified material” on the server. The panel members were content with the new explanation from the Clinton camp, that no emails “marked” classified were received or sent on her server. They repeated the line they had heard from Democratic Party operatives on the talk shows.
You could picture the members of the focus group repeating this line whenever the topic came up around the water cooler or over the backyard fence. They had their talking point. It permits them to vote for and defend Hillary with a clear conscience.
Which means that those who were hoping that Hillary would be damaged by the email scandal will have to pin their hopes on a formal indictment lodged against her. (And even that might not work for Hillary’s true believers. I suspect many of them would vote for her if she were running this fall from a jail cell. I’m not kidding.)
That leaves us with the question of whether there will there be criminal charges. In early March, commentators worth listening to discussed the topic: Washington Post columnist Ruth Marcus, Fox News commentator Judge Andrew Napolitano, and former federal prosecutor and National Review contributor Andrew McCarthy. Marcus says it is unlikely that Hillary will be indicted. Napolitano and McCarthy think the odds are good that she will — or, at the very least that she should.
Let’s start with Marcus. She is a liberal Democrat, but one who can be fair. She is not in the same category as Clinton apologists James Carville and Paul Begala, who would defend the Clintons if there were videotapes of them committing some misdeed. Marcus writes, “For those of you salivating — or trembling — at the thought of Hillary Clinton being clapped in handcuffs as she prepares to deliver her acceptance speech this summer: deep, cleansing breath. Based on the available facts and the relevant precedents, criminal prosecution of Clinton for mishandling classified information in her emails is extraordinarily unlikely.”
Marcus writes of her “exasperation with Clinton’s use of a private email server while secretary of state,” but quickly adds, “Lucky for her, political idiocy is not criminal.”
How does Marcus deal with David Petraeus being convicted of a crime for the way he handled classified material? She says the key is the word “knowingly,” found in the law governing the handling of classified material. The law makes it a crime “for a government employee to ‘knowingly remove’ classified information ‘without authority and with the intent to retain such documents or materials at an unauthorized location’.”
Marcus contends that in Hillary’s case “there is no clear evidence that she knew (or even should have known) that the material in her emails was classified.” Which, Marcus continues, was not the case in regard to General Petraeus. “Petraeus clearly knew the material he provided to Paula Broadwell was classified, and that she was not authorized to view it….In Clinton’s case, by contrast, there is no clear evidence that Clinton knew (or even should have known) that the material in her emails was classified.”
Marcus closes with the following: “My point here isn’t to praise Clinton’s conduct. She shouldn’t have been using the private server for official business in the first place. It’s certainly possible she was cavalier about discussing classified material on it,” but “that’s a far cry from an indictable offense.”
Get ready for it, folks. It is likely that you will be hearing reiterations of this argument from Clinton and her supporters from now until the general election.
How does Judge Andrew Napolitano answer it? He dismisses the notion that the documents in question were not “marked” classified. On Fox and Friends, he said that Clinton is playing a word game, because nothing is marked “classified.” It is “marked ‘confidential,’ ‘secret’ or ‘top secret’,” adding that Clinton “signed an oath on her first day in office, in which she said she understood her legal obligation to know what is secret whether it’s labeled so or not.”
Napolitano continued: The question is whether the documents “contain information the revelation of which could harm national security,” noting that photographs of a North Korean nuclear facility and the names of U.S. spies — both of which were found in Clinton’s emails — would clearly fall into that category.
What about the comparison to Petraeus? Napolitano stressed in his interview that Petraeus’ diaries were not “marked classified,” but that he “was charged anyway and pled guilty, because he was well aware (as are all high-ranking national security officials) that the lack of classified markings is not a defense.”
Napolitano added that Clinton’s misconduct was far more extensive and damaging to national security because “Unlike Petraeus’ journals, Clinton’s emails were widely circulated — so widely, in fact, that there is no telling who has had access to them. The emails were kept on an unsecure server that Clinton had to know was vulnerable to hacking by foreign intelligence services. Furthermore, Clinton’s emails were transmitted to numerous subordinate officials, and there is no telling how widely the recipients forwarded them.”
This leads Napolitano to conclude that the authorities have “no choice but to assume that national defense information, intelligence operations, sources, and collection methods have been compromised. Lives have been put in danger, surveillance efforts have no doubt had to be folded, and relations with foreign governments who provide the U.S. with intelligence on the promise of confidentiality have been damaged.”
All of which convinces Napolitano that Hillary should be charged with a criminal offense.
Andrew McCarthy agrees. He sees Hillary’s behavior as far worse than that of Petraeus: “[W]hile the journals in Petraeus’ case contained classified information that belonged to the government, they involved his personal activities. He should not have hoarded them, shared them with Broadwell, lied to the FBI about them, or stored them in an unsecured location in his home — these were serious (indeed, criminal) lapses in judgment.
“But we’re talking about an intelligence product that he created, that involved only his activities, and that, but for the unauthorized sharing with Broadwell, he tightly guarded. To the contrary, the intelligence stored and transmitted on Mrs. Clinton’s non-secure private email system was not compiled by Mrs. Clinton — it belonged to government intelligence agencies.
These national defense secrets were neither hers to disseminate nor hers to make determinations about whether they should be classified. And far from tightly controlling the information, she caused its broad, unauthorized, and uncontrolled dissemination.”
McCarthy concludes that “Clinton was willfully avoiding the accountability of public officials that federal law seeks to ensure. Simultaneously, she frustrated the State Department’s ability to keep complete records, which is vital to its diplomatic, security, and foreign policy missions.” All indictable offenses.
It strikes me that Napolitano and McCarthy make the better case. But, as we should have learned years ago, that yardstick does not always apply to the Clintons. It will be interesting to watch this case reach its conclusion.
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