Hillary Clinton's Coming Legal Crisis

Hillary Clinton's Coming Legal Crisis
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The latest release of Hillary Clinton emails entails real risks for her, churning just beneath the surface of her successful primary campaign. True, Democratic voters have shown little interest, and the mainstream media only a bit more. Their focus, when they do look, is on the number of documents now considered classified, their foreign-policy revelations, and the political damage they might cause. These are vital issues, but Clinton faces a far bigger problem. She and her closest aides could be indicted criminally.

Secretary Clinton is exposed twice over. First, she used an unsecured, home-brew server to send and store reams of classified materials. Second, in her official capacity, she worked closely with major donors to the Clinton Foundation. Each poses legal risks, with potential ramifications for the Democratic frontrunner, her party, and the Obama administration.

To understand the gravity of these issues, it is important to recognize that this is not just an “email scandal.” It is an “email + server + foundation” scandal.” Secretary Clinton didn’t just send sensitive (and now-classified) emails over open lines, she stored them on private servers that didn’t meet the government’s cyber-security standards for sensitive documents. On its face, retaining classified materials in such vulnerable settings is a criminal violation. Senior intelligence officials have been charged for less – far less. Storing some 1,300 classified documents on a personal server, and doing it for years, poses a special problem because it shows the mishandling was not inadvertent. It was Clinton’s standard operating procedure.

The State Department has done everything it can to protect its former boss. When it finally received her documents, it flatly refused to comply with long-standing Freedom of Information Act requests by releasing them. It took several court orders for the agency to begin trickling out small batches with large sections blacked out. The redactions only underscore why the documents should never have been held on private, unsecured servers in the first place.

The latest document dump shows why the State Department is so skittish. One reveals the secretary of state telling a senior department official, Jake Sullivan, to strip all the security markings off one document and send it to her on an insecure connection. We don’t yet know if Sullivan actually complied, but, if he did, both he and Clinton face serious legal jeopardy.

Beside these national-security matters, the emails reveal obvious conflict-of-interest issues pertaining to the significant overlap between Clinton’s official duties and her family foundation’s operations.

Major donors to the foundation often had business before the State Department, and they sometimes received help. After the devastating 2010 earthquake in Haiti, for instance, Bill Clinton was named co-chairman of the Interim Haiti Recovery Commission, and, according to the Wall Street Journal, “the State Department began directing parties interested in competing for Haiti contracts to the Clinton Foundation.” Not surprisingly, many contractors became foundation donors, or were already. The FBI now has to decide if any of this was a “pay to play” arrangement. Proving a quid pro quo is notoriously difficult, but Fox News reported Monday that public corruption is now a second track in the FBI investigation.

So far, Hillary has suffered only modest political damage from these scandals. Democratic primary voters are mostly indifferent; her main challenger, Sen. Bernie Sanders, says he’s tired of hearing about it; and, other than Fox News, no major media outlet has done serious investigations.

But that doesn’t mean these messy issues are dead — depending on what happens inside the Justice Department. Clinton is about to face the most serious crisis of her candidacy — a set of legal decisions by the FBI and then the Department of Justice. Those will either kill the issue or kill her chances.

The FBI reportedly has assigned some 100 agents full time to the investigation and another 50 temporarily. The bureau would not commit such massive resources unless the initial investigation raised troubling questions of potential criminality. FBI Director James Comey is monitoring the case closely and coordinating with the intelligence agencies, which have to review the documents. Comey has a reputation for integrity, and it is his call whether to refer charges to the DOJ. Attorney General Loretta Lynch would then decide whether to indict.

Whatever Lynch decides, there will be a maelstrom if FBI agents found substantial evidence of criminal wrongdoing.

Consider what would happen if Lynch and her boss, President Obama, quashed an indictment.

First, there would be extensive leaks of damaging materials from professionals in the FBI, CIA, DIA, and other agencies, who would see a refusal to follow the law enforcement agencies’ recommendations as a classic example of the rule of law being undermined by partisan considerations.

Senior FBI officials, including Comey, might well resign. They could not abide, much less defend, an administration that overruled their independent legal judgment for political expediency. That is what happened when the Nixon administration attempted to stop the Watergate investigation. Special Prosecutor Archibald Cox, Attorney General Elliot Richardson, and other senior Justice Department officials all resigned rather than become complicit. The comparisons would be obvious — and catastrophic for the Obama administration and the Democratic Party. Third, there would be high-profile congressional investigations, putting Loretta Lynch and her political appointees in the crosshairs, as well as talk of impeachment. In short, there would be a constitutional crisis at the end of Barack Obama’s presidency, just before the Democratic Party nominates its candidate.

An alternative possibility is that the DOJ accepts an FBI recommendation to indict Clinton’s aides or even the former secretary herself. Clinton will declare herself an innocent victim, but it will be a headline issue until the election. There will be tremendous pressure for her to exit the race and for someone else—Joe Biden, John Kerry, and Elizabeth Warren are the most obvious alternatives—to enter. Clinton would not go quietly—she would see the hand of her old foe, Barack Obama, stabbing her in the back—and she might not go at all.

Regardless of the attorney general’s decision, if the FBI does recommend criminal charges for Hillary Clinton or any of her associates, she will face two very pointed questions from the media, the electorate, and her Republican challenger.

  • “Secretary Clinton, if you are elected president, do you unequivocally promise to appoint an independent counsel to investigate these charges and, if warranted, prosecute them?”
  • “Do you promise you will not pardon anyone before these cases are fully adjudicated?”

She won’t be able to wave these questions off and say, “The attorney general decided all that.” It will look too much like a coverup by a Democratic administration for a Democratic Party leader. To reach the White House, Hillary Clinton has to get past the coming legal crisis, and she will have to answer those hard questions.

RCP contributor Charles Lipson is the Peter B. Ritzma Professor of Political Science at the University of Chicago, where he is founding director of PIPES, the Program on International Politics, Economics, and Security. He blogs at ZipDialog.com and can be reached at charles.lipson@gmail.com.

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