But conservatives hold on to the possible indictment like a life raft amid swelling seas, the one thing that can save them from the horror of a Clinton presidency.
So it was that when President Obama agreed to be interviewed by Fox News Sunday for yesterday’s broadcast, host Chris Wallace had to get him to weigh in on the matter. Obama’s answer was pretty much what you would have expected, but it was the panel discussion afterward that was most revealing. Here’s how Obama answered Wallace’s first question:
“I’ve got to be careful because, as you know, there have been investigations, there are hearings, Congress is looking at this. And I haven’t been sorting through each and every aspect of this.“Here’s what I know: Hillary Clinton was an outstanding Secretary of State. She would never intentionally put America in any kind of jeopardy.“And what I also know, because I handle a lot of classified information, is that there are — there’s classified, and then there’s classified. There’s stuff that is really top secret top secret, and there’s stuff that is being presented to the president or the secretary of state, that you might not want on the transom, or going out over the wire, but is basically stuff that you could get in open source.”
Wallace then pressed Obama on whether he would exercise any influence over the investigation, and he guaranteed (multiple times) that he wouldn’t. Although Obama’s answer might not be all that revealing to the uninitiated, he actually touched on the most critical questions with regard to an indictment. First, the classified material in question was not marked classified at the time it was sent and received; it was only afterward that the intelligence agencies retroactively classified it, which is critical to any legal case against Clinton. Second and most important, in order to be charged with the crime of mishandling classified information, the person has to knowingly and intentionally make the information available to someone who doesn’t have authorization to receive it, or act with such extraordinary negligence that it would inevitably fall into the wrong hands.
So for instance, David Petraeus got charged because he showed top secret documents to his mistress (and then lied to the FBI about it). But there’s no evidence that Clinton did anything even remotely similar. That’s why, when Politico’s Josh Gerstein examined prior cases similar to this one, he concluded that an indictment is highly unlikely. As Gestein writes:
The relatively few cases that drew prosecution almost always involved a deliberate intent to violate classification rules, as well as some add-on element: An FBI agent who took home highly sensitive agency records while having an affair with a Chinese agent; a Boeing engineer who brought home 2000 classified documents and whose travel to Israel raised suspicions; a National Security Agency official who removed boxes of classified documents and also lied on a job application form.
The only person with something resembling expertise in this area Gerstein could find who would say Clinton ought to be indicted was the increasingly loathsome Rudy Giuliani, whose opinion on matters like this is worth about as much a ticket to one of his inspirational speeches. (There’s a lengthier examination of the legal issues in this article by law professor Richard Lempert, if you’re interested.)
Just to be clear, I’m not defending Clinton’s decision to set up her own email server. That was a violation of departmental policy, and she shouldn’t have done it. But that’s very different from saying it was a crime, or even that it jeopardized national security in some way. (There’s been no evidence that Clinton’s server was hacked or that anyone even tried to hack it, unlike the State Department’s own systems, which are constantly targeted by hackers.)
But if you’re a Republican pundit, you know that the idea of Hillary Clinton being led away in handcuffs is just too tantalizing for your audience to resist. And so when the Fox News Sunday panel (consisting of two conservative Republicans and two objective reporters, which is their idea of balance) had the chance to weigh in, the conservatives — Karl Rove and The Post’s George Will — expressed the proper degree of faux outrage at Obama. What’s most interesting about their comments (here’s the transcript) is that neither one of them even tried to make a case that Clinton should be indicted. Instead, they both brought up former IRS official Lois Lerner, to argue that the Obama Justice Department engages in cover-ups of criminal behavior. They implied, without saying outright, that the Justice Department would never issue indictments that would damage Democrats (such as Hillary Clinton).
For the most part, the Clinton email story has been a disappointment to Republicans. They were desperately hoping that the emails would reveal some kind of ghastly malfeasance on Clinton’s part, some smoking gun that would make all Americans realize that she should never be elected president. When that turned out not to be the case, they pinned their hopes on the idea that she would just have to be charged with a crime eventually. I have no doubt that people like Will and Rove now understand that that isn’t going to happen either.
But having gone this far, they need to keep up appearances, and they also know that just talking about her emails serves to convince people that something scandalous must have happened. So they are laying the groundwork to argue, if and when she doesn’t get indicted, that it must only be because Barack Obama’s corrupt administration quashed the investigation and hid the truth from the public.
And down where the conservative rank and file get their information — the talk radio rants, the right-wing blogs, the breathless chain emails — these two contradictory ideas are both widely circulated. Clinton is about to be indicted, and Clinton won’t be indicted because the fix is in. The assumption in either case is that of course she committed crimes, even if no one can say exactly what they were. Because she’s Hillary Clinton, right? What more do you need to know?