The Coming Constitutional Crisis Over Hillary Clinton's EmailGate

[Leroy N. Soetoro]

http://observer.com/2016/06/the-coming-constitutional-crisis-over-hillary-
clintons-emailgate/

Suddenly things were aligning perfectly for Hillary Clinton in her quest
for the presidency. After months of embarrassing inability to vanquish
Senator Bernie Sanders, a 74-year-old socialist who represents a state
with just two-tenths of a percent of the American population, she wrapped
up her party’s nomination for the White House. The Democratic convention
in Philadelphia next month will be a formality, no matter how loudly
Bernie Bros stomp their feet.

To cap that triumph last week, President Obama endorsed Hillary Clinton as
their party’s nominee for 2016. While this, too, was a formality, since
Mr. Obama was eventually going to endorse her—no matter how much bad blood
lingers between them from the 2008 race—it was satisfying to her
supporters, if perhaps overdue.

The president’s praising assessment of Clinton, including “I don’t think
there’s ever been someone so qualified to hold this office,” should go a
long way toward unifying their party as she faces her Republican opponent,
presumably Donald Trump, this autumn.

Obama’s praise was salve on the wounds Clinton recently suffered at the
hands of the State Department over EmailGate. The long-awaited report by
the Office of the Inspector General at Foggy Bottom can be fairly termed
scathing and, as I assessed in this column, it leaves no doubt that
Hillary Clinton systematically dodged a raft of laws and regulations on
the keeping of Federal records and the handling of classified information.

Worse, the IG report leaves no doubt that Clinton has lied profligately
about EmailGate from the moment the scandal broke over a year ago. Since
the State Department, which Clinton headed during President Obama’s first
term, cannot plausibly be painted as part of the Vast Right Wing
Conspiracy that Team Clinton sees lurking behind every piece of bad press,
this report caused real damage to Hillary’s presidential campaign.

True to form, she began punching back herself and through surrogates.
Their main talking point—that EmailGate remains a nothing-burger, a
figment of the overheated FoxNews imagination more than a bona fide
story—continues to be peddled daily. As she confidently said to the
cameras last week, there’s “zero chance” she will be indicted over
EmailGate, no matter what the FBI finds in its still-active investigation
of the matter.

Make no mistake, there are more than a few senior intelligence officials
who are livid about Hillary Clinton’s willful disregard of clearly defined
laws.

For good measure, Clinton stated for the umpteenth time, “nothing I sent
or received at the time was marked classified.” This dodge has been
employed for a year as cover by Team Clinton to explain how so much
classified information, including at least two dozen emails classified top
secret or higher, among them enormously sensitive special access programs
from both CIA and NSA, wound up in Clinton’s “unclassified” private email.

Any inquiring mind will want to know how Hillary Clinton is so certain she
cannot be indicted over EmailGate, since the FBI’s investigation remains
open. Similarly, it deserves to be asked why Obama felt it appropriate to
endorse Clinton to succeed him in the White House while the FBI continues
to investigate her, since any Bureau referral in the matter will wind up
on the desk of the attorney general, Loretta Lynch—who works for President
Obama. The White House insists this is no way taints the case. However,
since Obama is a constitutional lawyer by background, he cannot fail to
see how this creates a serious conflict of interest.

On top of that, Clinton’s evasions aren’t working. A new survey indicates
that 60 percent of voters think she’s lying about her emails, versus 27
percent who believe her. Although she still possesses an edge over Donald
Trump in polling, EmailGate remains a serious problem for Hillary’s
campaign, since it highlights so many Clintonian mores that so many
Americans have disliked for so long. Pervasive, carefully planned
dishonesty. Lies to cover up corruption and grifting off our political
system. Above all, a deep sense that rules are for average citizens, not
for Clintons and their privileged coterie.

Yet another revealing intersection of Clinton lies, corruption, and
secrets has come to light thanks to EmailGate. This involves the 2011
appearance of Rajiv K. Fernando on the International Security Advisory
Board, a sensitive committee that oversees the State Department’s work in
counter-proliferation and nuclear matters. The ISAB sees a lot of highly
classified intelligence and consists of seasoned experts in arms control
and international security. Its members are largely greybeards with
decades of experience in the military, diplomacy, and security.

Fernando was none of those things. A Chicago securities trader with no
relevant background, ISAB members seemed perplexed by his appearance in
their midst in 2011. “We had no idea who he was,” said one board member.
Fernando knew nothing about intelligence or nuclear weapons, but he was a
big-league donor to the Clinton Foundation—and that was the fact that
mattered. Although Team Clinton went to great efforts to obscure exactly
how Fernando got on the ISAB—particularly how Hillary Clinton’s staff
sneakily placed him on the board—this was yet another pay-for-play scam
inflicted on the U.S. Government and the taxpayer by the Clintons.

To make matters worse for Hillary, it recently emerged that at least one
of the emails she handed over to investigators under subpoena in fact did
contain classified information that was marked as such. The April 2012
email chain discusses an impending phone call with Malawi’s new president.
The important part is an email from Monica Hanley, an aide, to Clinton,
including the “call sheet” for the secretary. In layman’s terms, this was
a note for Secretary Clinton telling her what she needed to discuss during
her scheduled phone conversation with a foreign head of state.

We don’t know what that was, however, since most of that email has been
redacted as classified at the Confidential level, the lowest
classification level in the U.S. Government. The smoking gun here is that
the call sheet begins with the line: “(C) Purpose of Call: To offer
condolences on the passing pf President Mutharika and congratulate
President Banda on her recent swearing in.”

Everything after that has been redacted. But that “(C)” is what is termed
a “portion marking,” a tip-off to the reader that the paragraph following
is classified. (For how this all works in practice, see this explainer.)
In other words, Hanley knew she was sending classified information in an
unclassified email to Hillary Clinton’s personal email account, an
unambiguous violation of Federal law.

It’s difficult to see how the FBI can ignore such an obvious violation of
the law.

This gives the lie to Clinton’s much-repeated mantra that she never sent
or was sent anything marked classified in her unclassified, personal email
while serving as our nation’s top diplomat. That is demonstrably false, we
now know.

In reality, nobody goes to jail for mishandling classified information at
the Confidential level. However, the Hanley email proves that Hillary’s
staff was emailing her classified information in unclassified channels,
that it was marked classified, and that it was transiting Clinton’s
personal email server. It’s difficult to believe that a mere aide like
Monica Hanley decided to break the law like this, as she surely knew she
was, on her own initiative.

It’s also difficult to see how the FBI can ignore such an obvious
violation of the law. It likewise raises questions about what was in the
30,000 emails that Clinton decided to delete. In the nearly five months
remaining until the presidential election, we can expect a regular
drumbeat of revelations about EmailGate, none of them flattering to the
Democratic nominee.

Last week the Associated Press broke a big story about how Clinton’s
“unclassified” emails included the true names of CIA personnel serving
overseas under cover. This was hardly news, in fact I broke the same story
four months ago in this column. However, the AP account adds detail to
what Clinton and her staff did, actions that placed the lives of CIA
clandestine personnel at risk. It also may be a violation of the
Intelligence Identities Protection Act, a 1982 law that featured
prominently in the mid-aughts scandal surrounding CIA officer Valerie
Plame, which so captivated the mainstream media. More recently, former CIA
officer John Kiriakou spent two years in Federal prison for violating this
law.

To make matters worse for Team Clinton, last week it emerged that several
of the classified emails under investigation involved discussions of
impending CIA drone strikes in Pakistan. Clinton aides were careful to
avoid hot-button words like “CIA” and “drone” in these “unclassified”
emails, engaging in a practice that spies term “talking around” an issue.

However, the salient fact is that the CIA—which has the say here—considers
this information to be Top Secret, as well as enormously sensitive. It had
no business being in anybody’s unclassified emails. As the secretary of
state, Ms. Clinton and her top staff had access to classified
communications systems 24 hours a day. They chose not to use them here—a
choice that clearly violated Federal law. Moreover, this new report
demonstrates that a previous Clintonian EmailGate talking point, that
discussions of drones in emails were no more than pasting press pieces,
and therefore innocuous, was yet another bald-faced lie.

How the FBI can look at all this and not recommend prosecution of someone
for something in EmailGate strains the imagination. Yet President Obama
has clearly signaled that it’s all no big deal. Director James Comey has a
tough job before him when he takes the FBI’s official recommendations
regarding EmailGate to Attorney General Lynch for action, probably
sometime this summer. Since Comey is now under a cloud over the FBI’s
embarrassing mishandling of Omar Mateen, the Orlando jihadist mass
murderer, perhaps his resignation over that matter would be welcome in the
White House, which then could find a new director more willing to bend to
Obama’s wishes.

Make no mistake, there are more than a few senior intelligence officials
in Washington, DC, who are livid about Hillary Clinton’s willful disregard
of clearly defined laws on the handling of classified information. Her
misconduct endangered sensitive intelligence programs—and lives. Even if
Comey is a sacrificial lamb here, there are high-ranking spies who are
perfectly willing to leak the sordid details of EmailGate to the media if
the president pulls a Dick Nixon and tries to subvert our Constitution to
protect himself and his designated successor.

And in the unlikely event that nobody in our nation’s capital is willing
to go public with exactly what Hillary Clinton did, it now seems the
Russians may do so. It’s highly plausible that Russian intelligence
services, among others, have many of Clinton’s emails, perhaps all of
them, given how slipshod her security arrangements were.

Therefore the recent statement by Julian Assange, head of Wikileaks, that
his organization plans to release more of Clinton’s emails should not be
dismissed out of hand. Although Assange is prone to flights of fancy,
Wikileaks has long served as a front for Russian intelligence, as Western
security services are well aware, so it may not be fantasy that he could
get his hands on more of Hillary’s emails. It would be supremely ironic if
the Kremlin demolishes Hillary Clinton’s presidential aspirations thanks
to her own neglect of basic communications security when she was secretary
of state.

John Schindler is a security expert and former National Security Agency
analyst and counterintelligence officer. A specialist in espionage and
terrorism, he’s also been a Navy officer and a War College professor. He’s
published four books and is on Twitter at @20committee.

TAGS: 2016 ELECTIONS, BARACK OBAMA, CIA, DEMOCRATS, DONALD TRUMP,
EMAILGATE, FBI, HILLARY CLINTON, INTELLIGENCE IDENTITIES PROTECTION ACT,
JAMES COMEY, JULIAN ASSANGE, LORETTA LYNCH, MONICA HANLEY, NATIONAL
SECURITY, OMAR MATEEN, RAJIV K. FERNANDO, STATE DEPARTMENT, WIKILEAKS


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