‘How is this not classified?”
So exclaimed Hillary Clinton’s close aide and confidante, Huma Abedin.
The FBI had just shown her an old e-mail exchange, over Clinton’s private account, between the then-secretary of state and a second person, whose name Abedin did not recognize.
The FBI then did what the FBI is never supposed to do:
The agents informed their interviewee (Abedin) of the identity of the second person.
It was the president of the United States, Barack Obama, using a pseudonym to conduct communications over a non-secure e-mail system — something anyone with a high-level security clearance, such as Huma Abedin, would instantly realize was a major breach.
Abedin was sufficiently stunned that, for just a moment, the bottomless capacity of Clinton insiders to keep cool in a scandal was overcome.
“How is this not classified?”
She recovered quickly enough, though. The FBI records that the next thing Abedin did, after “express[ing] her amazement at the president’s use of a pseudonym,” was to “ask if she could have a copy of the email.”
Abedin knew an insurance policy when she saw one. If Obama himself had been e-mailing over a non-government, non-secure system, then everyone else who had been doing it had a get-out-of-jail-free card.
Thanks to Friday’s FBI document dump — 189 more pages of reports from the Bureau’s year-long foray (“investigation” would not be the right word) into the Clinton e-mail scandal — we now know for certain what I predicted some eight months ago here at NRO:
Any possibility of prosecuting Hillary Clinton was tanked by President Obama’s conflict of interest.
As I explained in February, when it emerged that the White House was refusing to disclose at least 22 communications Obama had exchanged with then-secretary Clinton over the latter’s private e-mail account, we knew that Obama had knowingly engaged in the same misconduct that was the focus of the Clinton probe:
the reckless mishandling of classified information.
To be sure, he did so on a smaller scale.
Clinton’s recklessness was systematic:
She intentionally set up a non-secure, non-government communications framework, making it inevitable that classified information would be mishandled, and that federal record-keeping laws would be flouted.
Obama’s recklessness, at least as far as we know, was confined to communications with Clinton — although the revelation that the man presiding over the “most transparent administration in history” set up a pseudonym to conceal his communications obviously suggests that his recklessness may have been more widespread.
Still, the difference in scale is not a difference in kind. In terms of the federal laws that criminalize mishandling of classified information, Obama not only engaged in the same type of misconduct Clinton did; he engaged in it with Clinton.
It would not have been possible for the Justice Department to prosecute Clinton for her offense without its becoming painfully apparent that
1) Obama, too, had done everything necessary to commit a violation of federal law, and
2) the communications between Obama and Clinton were highly relevant evidence.
Indeed, imagine what would have happened had Clinton been indicted.
The White House would have attempted to maintain the secrecy of the Obama-Clinton e-mails (under Obama’s invocation of a bogus “presidential communications” privilege), but Clinton’s defense lawyers would have demanded the disclosure of the e-mails in order to show that Obama had engaged in the same misconduct, yet only she, not he, was being prosecuted.
And as most experienced criminal-law lawyers understand (especially if they’ve read a little Supreme Court case known as United States v. Nixon), it is an argument that Clinton’s lawyers would have won.
In fact, in any other case — i.e., in a case that involved any other unindicted co-conspirator — it would be the Justice Department itself introducing the Obama-Clinton e-mails into evidence.
As noted above, the FBI told Huma Abedin that the name she did not recognize in the e-mail with Clinton was an Obama alias. For the agents to do this ran afoul of investigative protocols.
The point of an FBI interview is for the interviewee to provide information to the investigators, not the other way around.
If agents give information to potential witnesses, the government gets accused of trumping up the case.
But of course, that’s only a problem if there is actually going to be a case.
In this instance, it was never going to happen. The president’s involvement guaranteed that . . . so why worry about letting Abedin in on the president’s involvement?
“The unauthorized disclosure of foreign government information is presumed to cause damage to the national security.”
foreign relations, foreign activities of the United States, military plans, and intelligence activities.
They were born classified. As I said in February, this fact would profoundly embarrass Obama if the e-mails were publicly disclosed.
That is why the Clinton e-mail scandal never had a chance of leading to criminal charges.