{"id":55036,"date":"2016-11-05T17:53:26","date_gmt":"2016-11-05T21:53:26","guid":{"rendered":"https:\/\/stateofthenation2012.com\/?p=55036"},"modified":"2017-08-07T12:31:47","modified_gmt":"2017-08-07T16:31:47","slug":"the-only-reason-why-hillary-wasnt-indicted-obama-also-guilty-of-emailgate-crimes","status":"publish","type":"post","link":"https:\/\/stateofthenation2012.com\/?p=55036","title":{"rendered":"The ONLY Reason Why Hillary Wasn&#8217;t Indicted:  OBAMA Also Guilty Of <i>Emailgate<\/i> Crimes"},"content":{"rendered":"<h2>Obama\u2019s Conflict Tanked the Clinton E-mail Investigation \u2014 As Predicted<\/h2>\n<p><!--more--><a href=\"https:\/\/stateofthenation2012.com\/wp-content\/uploads\/2016\/10\/Screen-Shot-2016-10-29-at-3.52.39-PM.png\"><img loading=\"lazy\" decoding=\"async\" class=\"aligncenter wp-image-53938\" src=\"https:\/\/stateofthenation2012.com\/wp-content\/uploads\/2016\/10\/Screen-Shot-2016-10-29-at-3.52.39-PM.png\" sizes=\"auto, (max-width: 675px) 100vw, 675px\" srcset=\"https:\/\/stateofthenation2012.com\/wp-content\/uploads\/2016\/10\/Screen-Shot-2016-10-29-at-3.52.39-PM.png 909w, https:\/\/stateofthenation2012.com\/wp-content\/uploads\/2016\/10\/Screen-Shot-2016-10-29-at-3.52.39-PM-300x135.png 300w, https:\/\/stateofthenation2012.com\/wp-content\/uploads\/2016\/10\/Screen-Shot-2016-10-29-at-3.52.39-PM-768x346.png 768w\" alt=\"screen-shot-2016-10-29-at-3-52-39-pm\" width=\"675\" height=\"304\" \/><\/a><\/p>\n<h3 class=\"story-subtitle serif fs-1p5 lh-1p5\">Hillary couldn\u2019t be proven guilty without proving the <i>president<\/i> guilty as well.<\/h3>\n<section><\/section>\n<p>ANDREW C. McCARTHY \u00a0| \u00a0The National Review<br \/>\n(ACM served as an Assistant United States Attorney for the Southern District of New York)<\/p>\n<p><em><strong><span class=\"drop\">\u2018H<\/span>ow is this not classified?\u201d<\/strong><\/em><br \/>\n\u2014 Huma Abedin<\/p>\n<p>So exclaimed Hillary Clinton\u2019s close aide and confidante, Huma Abedin. The FBI had just shown her an old e-mail exchange, over Clinton\u2019s 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 \u2014 something anyone with a high-level security clearance, such as Huma Abedin, would instantly realize was a major breach.<\/p>\n<p><span class=\"embed-youtube\"><iframe loading=\"lazy\" class=\"youtube-player\" src=\"http:\/\/www.youtube.com\/embed\/P2wLeNit_5c?version=3&amp;rel=1&amp;fs=1&amp;autohide=2&amp;showsearch=0&amp;showinfo=1&amp;iv_load_policy=1&amp;wmode=transparent\" width=\"640\" height=\"390\" allowfullscreen=\"allowfullscreen\" data-mce-fragment=\"1\"><\/iframe><\/span><\/p>\n<p>Abedin was sufficiently stunned that, for just a moment, the bottomless capacity of Clinton insiders to keep cool in a scandal was overcome. <em>\u201cHow is this not classified?\u201d<\/em><\/p>\n<p>She recovered quickly enough, though. The FBI records that the next thing Abedin did, after \u201cexpress[ing] her amazement at the president\u2019s use of a pseudonym,\u201d was to \u201cask if she could have a copy of the email.\u201d<\/p>\n<p class=\"article-ad-mobile-position\">Abedin knew an insurance policy when she saw one. If <em>Obama himself\u00a0<\/em>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.<\/p>\n<p>Thanks to Friday\u2019s FBI document dump \u2014 189 more pages of reports from the Bureau\u2019s year-long foray (\u201cinvestigation\u201d would not be the right word) into the Clinton e-mail scandal \u2014 we now know for certain what I predicted some eight months ago here at NRO: <a href=\"http:\/\/www.nationalreview.com\/article\/430706\/obama-hillary-clinton-email-problem\" target=\"_blank\">Any possibility of prosecuting Hillary Clinton was tanked by President Obama\u2019s conflict of interest<\/a>.<\/p>\n<p>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\u2019s 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.<\/p>\n<p>To be sure, he did so on a smaller scale. Clinton\u2019s 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\u2019s recklessness, at least as far as we know, was confined to communications with Clinton \u2014 although the revelation that the man presiding over the \u201cmost transparent administration in history\u201d set up a pseudonym to conceal his communications obviously suggests that his recklessness may have been more widespread.<\/p>\n<p>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 <em>same type of misconduct<\/em> Clinton did; he engaged in it <em>with Clinton.<\/em> 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.<\/p>\n<blockquote class=\"pullquote\"><p>Obama not only engaged in the <em>same type of misconduct<\/em>Clinton did; he engaged in it <em>with Clinton<\/em>.<\/p><\/blockquote>\n<p>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\u2019s invocation of a bogus \u201cpresidential communications\u201d privilege), but Clinton\u2019s 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\u2019ve read a little Supreme Court case known as <a href=\"http:\/\/caselaw.findlaw.com\/us-supreme-court\/418\/683.html\" target=\"_blank\"><em>United States v. Nixon<\/em><\/a>), it is an argument that Clinton\u2019s lawyers would have won.<\/p>\n<p>In fact, in any other case \u2014 i.e., in a case that involved any other unindicted co-conspirator \u2014 it would be the Justice Department itself introducing the Obama-Clinton e-mails into evidence.<\/p>\n<p>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.<\/p>\n<p>But of course, that\u2019s only a problem if there is actually going to be a case.<\/p>\n<p>In this instance, it was never going to happen. The president\u2019s involvement guaranteed that\u00a0.\u00a0.\u00a0.\u00a0so why worry about letting Abedin in on the president\u2019s involvement?<\/p>\n<p>Abedin was startled by this revelation. No wonder: People in her lofty position know that direct presidential communications with high-ranking officials who have national-security and foreign-policy responsibilities are presumptively classified.<\/p>\n<p>To convey this, and thus convey the legal significance of Obama\u2019s involvement, I can\u2019t much improve on what I told you back in February. When the Obama Justice Department prosecuted retired general David Petraeus, the former CIA director, for mishandling classified information, government attorneys emphasized that this top-secret intelligence included notes of Petraeus\u2019s \u201cdiscussions with the president of the United States of America.\u201d<\/p>\n<p>Petraeus pled guilty because he knew the case against him was a slam-dunk. He grasped that trying to defend himself by sputtering, Clinton-style, that \u201cthe notes were <em>not marked classified<\/em>\u201d would not pass the laugh test. As I elaborated in the February column, when you\u2019re a national-security official engaging in and making a written record of policy and strategy conversations with the president, the lack of classified markings on the documents you\u2019ve created<\/p>\n<blockquote><p>[does] not alter the obvious fact that the information they contain [is] classified \u2014 a fact well known to any high government official who routinely handles national-defense secrets, let alone one who directly advises the president.<\/p><\/blockquote>\n<p>Moreover, as is the case with Clinton\u2019s e-mails, much of the information in Petraeus\u2019s journals was \u201cborn classified\u201d under the terms of President Obama\u2019s own executive order \u2014 EO 13526. <a href=\"http:\/\/www.nationalreview.com\/article\/423340\/clinton-e-mail-scandal-a-laughable-defense\" target=\"_blank\">As I\u2019ve previously noted<\/a>, in <a href=\"http:\/\/www.whitehouse.gov\/the-press-office\/executive-order-classified-national-security-information\" target=\"_blank\">section 1.1(d)<\/a> of that order, Obama issued this directive: \u201cThe unauthorized disclosure of foreign government information is presumed to cause damage to the national security.\u201d In addition, the order goes on (in section 1.4) to describe other categories of information that officials should deem classified based on the damage to national security that disclosure could cause. Included among these categories: foreign relations, foreign activities of the United States, military plans, and intelligence activities.<\/p>\n<p>Abedin knew, as the FBI agents who were interviewing her surely knew, that at least some of Obama\u2019s pseudonymous exchanges with Clinton had to have crossed into these categories. They were born classified. As I said in February, this fact would profoundly embarrass Obama if the e-mails were publicly disclosed.<\/p>\n<p>Hundreds of times, despite Clinton\u2019s indignant insistence that she never sent or received classified information, the State Department has had to concede that her e-mails must be redacted or withheld from public disclosure because they contain information that is patently classified. But this is not a concession the administration is willing to make regarding <em>Obama\u2019s<\/em> e-mails.<\/p>\n<p>That is why, as I argued in February, Obama is trying to get away with the vaporous claim that presidential communications must be kept confidential. He does not want to say \u201cexecutive privilege\u201d because that sounds too much like Nixon. More important, the only other alternative is to designate the e-mails as <em>classified<\/em>. That would be tantamount to an admission that Obama engaged in the same violation of law as Clinton.<\/p>\n<p>Again, this is why the prosecution of Mrs. Clinton never had a chance of happening. It also explains why, in his public statements about the matter, <a href=\"http:\/\/www.latimes.com\/politics\/la-na-obama-clinton-20160410-story.html\" target=\"_blank\">Obama insisted that Clinton\u2019s e-mailing of classified information did not harm national security<\/a>. It is why Obama, in stark contrast to his aforementioned executive order, made public statements pooh-poohing the fact that federal law forbids the mishandling of <em>any<\/em> intelligence secret. (\u201cThere\u2019s classified, and then there\u2019s <em>classified,<\/em>\u201d he said, so cavalierly.) He had to take this position because he had himself effectively endorsed the practice of high-level communications through non-secure channels.<\/p>\n<p>This is also why the Justice Department and the FBI effectively rewrote the relevant criminal statute in order to avoid applying it to Clinton. In his public statements about Clinton, Obama has stressed that she is an exemplary public servant who would never intentionally harm the United States. In rationalizing their decision not to indict Clinton, Justice Department officials (in leaks to the <em>Washington Post<\/em>) and the FBI director (in his press conference and congressional testimony) similarly stressed the lack of proof that she <em>intended<\/em> to harm the United States.<\/p>\n<p>As I\u2019ve repeatedly pointed out, however, the <a href=\"http:\/\/www.nationalreview.com\/corner\/437479\/fbi-rewrites-federal-law-let-hillary-hook\" target=\"_blank\">operative criminal statute does not call for proof of intent<\/a> to harm the United States. It merely requires proof of gross negligence. This is entirely lawful and appropriate, since we\u2019re talking about a law that can apply only to government officials who have a special duty to preserve secrecy and who have been schooled in the proper handling of classified information. Yet the Justice Department frivolously suggested that applying the law exactly the way it is written \u2014 something the Justice Department routinely tells judges they must do \u2014 would, in Clinton\u2019s case, potentially raise constitutional problems.<\/p>\n<p>Alas, the Justice Department and the FBI have to take that indefensible position here. Otherwise, Clinton would not be the only one in legal jeopardy.<\/p>\n<p>I will end with what I said eight months ago:<\/p>\n<blockquote><p>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\u2019s 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.<\/p><\/blockquote>\n<p>That is why the Clinton e-mail scandal never had a chance of leading to criminal charges.<\/p>\n<p><span class=\"section-gray\"><em>\u2014 Andrew C. McCarthy is a policy fellow at the National Review Institute. His latest book is <\/em><a href=\"http:\/\/www.nationalreview.com\/redirect\/amazon.p?j=1594037760\" target=\"_blank\">Faithless Execution: Building the Political Case for Obama\u2019s Impeachment<\/a>.<\/span><\/p>\n<p>___<br \/>\n<a href=\"http:\/\/www.nationalreview.com\/article\/440380\/obama-email-alias-clinton-why-fbi-didnt-prosecute-hillary\">http:\/\/www.nationalreview.com\/article\/440380\/obama-email-alias-clinton-why-fbi-didnt-prosecute-hillary<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"<p>Obama\u2019s Conflict Tanked the Clinton E-mail Investigation \u2014 As Predicted<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[6,1],"tags":[],"class_list":["post-55036","post","type-post","status-publish","format-standard","hentry","category-featured-posts","category-uncategorized"],"_links":{"self":[{"href":"https:\/\/stateofthenation2012.com\/index.php?rest_route=\/wp\/v2\/posts\/55036","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/stateofthenation2012.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/stateofthenation2012.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/stateofthenation2012.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/stateofthenation2012.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=55036"}],"version-history":[{"count":0,"href":"https:\/\/stateofthenation2012.com\/index.php?rest_route=\/wp\/v2\/posts\/55036\/revisions"}],"wp:attachment":[{"href":"https:\/\/stateofthenation2012.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=55036"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/stateofthenation2012.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=55036"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/stateofthenation2012.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=55036"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}