Clinton Emails: Is She Too Big to Prosecute?

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Democratic presidential candidate Hillary Clinton speaks during a town hall meeting in Las Vegas on August 18. The scandal over Hillary Clinton's private email has some wondering if she'll be treated by the Obama administration and the Department of Justice like other people they've targeted for leaking classified information. David Becker/Reuters

This article first appeared on Reason.com.

The scandal over Hillary Clinton's secretive, private handling of classified communications while secretary of state has got legs with musclebound thighs precisely because it hits her in all of her well-established negatives: that's she's secretive, paranoid, beholden to a cadre of insiders and is fundamentally dishonest and untrustworthy.

It is the perfect scandal to derail her campaign among anybody who isn't already a loyal supporter. (Now, the Clinton campaign's unresponsiveness is drawing attention, even on MSNBC.)

But there's even more. Because President Barack Obama's administration has blown to bits its promise of transparency and has set a record for going after anybody who leaks information the government doesn't want to get out, everybody has their eyes open for evidence that somebody connected to Clinton saw something they weren't supposed to see.

The State Department has flagged several hundred of the emails she had kept on her private servers as possibly having classified information. They have to be looked over and possibly have some content redacted before being publicly released.

With the possibility that Clinton wasn't handling her information properly, some are wondering if she'll be treated by the Obama administration and the Department of Justice like other people they've targeted.

Fox News spoke with John Kiriakou, the ex-CIA agent who served two years in prison essentially for the crime of revealing that the United States was, in fact, waterboarding and torturing Al-Qaeda prisoners (technically he was convicted of revealing CIA undercover identities as part of providing this information). He sees a likely double standard coming into play for Clinton.

"The FBI is going to investigate [Hillary Clinton], but it is not up to them," he told FoxNews.com. "If they [the FBI] want to charge Hillary Clinton with a crime, they can certainly find a crime with which to charge her," he added. "But there is no way the Obama administration is going to prosecute her. No way."

A former CIA spy, Bob Baer, told CNN over the weekend he would be fired and possibly jailed if he had tried to do what Clinton did. "Even [Edward] Snowden didn't get into that," Baer said. "If this in fact was on a private server, you and I would get fired and possibly jailed. This could be a felony."

Baer said that when he was on assignment, he wasn't allowed to receive messages at that level of classification, and that putting it on a private server or handheld device was a major mistake.

"If this was on her server and it got into her smartphone, there's a big problem there," he claimed. "Seriously, if I had sent a document like this over the open Internet, I'd get fired the same day—escorted to the door, and gone for good, and probably charged with mishandling classified information."

On the other end, Richard Lempert of the Brookings Institution penned an extremely detailed, possibly too detailed, explanation of how the complex rules regarding government classification mean we should be careful not to jump to conclusions. Lempert, though, overplays his biases a bit further down the piece:

Most likely there were risks in using a personal server, but it is also likely that the risks were not realized, and it is quite possible that the risks were no greater, and perhaps less, than they would have been had Clinton used a State Department server.

Clinton, no doubt, had firewalls and other protections in place to guard her personal server, and it is likely that she only discussed sensitive topics with people whose discretion she could trust since she could be damaged politically by any untoward revelations.

As for the risk of being hacked, the wave of hacked government sites and the betrayals of Bradley Manning and Edward Snowden mean it is not silly to think that using a privately protected, unadvertised server could have made Clinton's emails less vulnerable to surreptitious acquisition than they would have been on a State Department server, which is most likely a regular target of attempted intrusions.

First of all, "betrayals" of Manning and Snowden? Really? Second of all, both of these leaks took place after Hillary Clinton was well entrenched in her position as secretary of state and had made the decision to have the private server.

Actually, Snowden's leaks didn't begin until months after Clinton stepped down. And, of course, the wave of federal records hacking was only recently revealed.

The idea that Clinton had any of this in mind when she embarked on this secret storage system is absurd. And finally, extending Lempert's argument means that all government officials should be secretly storing sensitive government information on private servers to keep it away from hackers. Consider the accountability consequences of such a shift.

Ultimately the problem with trying to trust Clinton is the problem she has with being not entirely trustworthy. Last week, Peter Suderman documented all the things that Clinton has claimed to defend herself from accusations of information mismanagement that have turned out to be untrue.

Gawker sued the State Department because it insisted that it had no emails that a former deputy assistant secretary of state under Clinton had sent to several journalists. In reality, Gawker found out this week there were more than 17,000 emails that matched the request. It has taken them three years just to get that information, let alone the actual content of said emails.

As for Kiriakou's claim that Clinton will be treated differently, we'll just have to wait and see. Maybe she'll have leaked information to the press that the Obama administration found embarrassing. Even so, it's more likely that somebody in her inner circle will jump on that grenade in order to protect her candidacy.

Scott Shackford is an associate editor at Reason.com

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