The Coming Constitutional Crisis Over Hillary Clinton’s EmailGate

The nominee insists her mishandling of State Department email is no big deal—but the real drama is just beginning

Presumptive Democratic nominee for president Hillary Clinton speaks to supporters at the International Brotherhood of Electric Workers Hall on Tuesday, June 14, 2016 in Pittsburgh, Pennsylvania. In the wake of the shooting in Orlando, Florida, Clinton is campaigning in Ohio and Pennsylvania to present her vision for a stronger and safer America.

Hillary Clinton speaks to supporters at the International Brotherhood of Electric Workers Hall on Tuesday, June 14, in Pittsburgh, Pennsylvania. (Photo by Jeff Swensen/Getty Images)

Suddenly things were aligning perfectly for Hillary Clinton in her quest for the presidency. After months of embarrassing inability to vanquish Senator Bernie Sanders, a 74-year-old socialist who represents a state with just two-tenths of a percent of the American population, she wrapped up her party’s nomination for the White House. The Democratic convention in Philadelphia next month will be a formality, no matter how loudly Bernie Bros stomp their feet.

To cap that triumph last week, President Obama endorsed Hillary Clinton as their party’s nominee for 2016. While this, too, was a formality, since Mr. Obama was eventually going to endorse her—no matter how much bad blood lingers between them from the 2008 race—it was satisfying to her supporters, if perhaps overdue.

The president’s praising assessment of Clinton, including “I don’t think there’s ever been someone so qualified to hold this office,” should go a long way toward unifying their party as she faces her Republican opponent, presumably Donald Trump, this autumn.

Obama’s praise was salve on the wounds Clinton recently suffered at the hands of the State Department over EmailGate. The long-awaited report by the Office of the Inspector General at Foggy Bottom can be fairly termed scathing and, as I assessed in this column, it leaves no doubt that Hillary Clinton systematically dodged a raft of laws and regulations on the keeping of Federal records and the handling of classified information.

Worse, the IG report leaves no doubt that Clinton has lied profligately about EmailGate from the moment the scandal broke over a year ago. Since the State Department, which Clinton headed during President Obama’s first term, cannot plausibly be painted as part of the Vast Right Wing Conspiracy that Team Clinton sees lurking behind every piece of bad press, this report caused real damage to Hillary’s presidential campaign.

True to form, she began punching back herself and through surrogates. Their main talking point—that EmailGate remains a nothing-burger, a figment of the overheated FoxNews imagination more than a bona fide story—continues to be peddled daily. As she confidently said to the cameras last week, there’s “zero chance” she will be indicted over EmailGate, no matter what the FBI finds in its still-active investigation of the matter.

Make no mistake, there are more than a few senior intelligence officials who are livid about Hillary Clinton’s willful disregard of clearly defined laws.

For good measure, Clinton stated for the umpteenth time, “nothing I sent or received at the time was marked classified.” This dodge has been employed for a year as cover by Team Clinton to explain how so much classified information, including at least two dozen emails classified top secret or higher, among them enormously sensitive special access programs from both CIA and NSA, wound up in Clinton’s “unclassified” private email.

Any inquiring mind will want to know how Hillary Clinton is so certain she cannot be indicted over EmailGate, since the FBI’s investigation remains open. Similarly, it deserves to be asked why Obama felt it appropriate to endorse Clinton to succeed him in the White House while the FBI continues to investigate her, since any Bureau referral in the matter will wind up on the desk of the attorney general, Loretta Lynch—who works for President Obama. The White House insists this is no way taints the case. However, since Obama is a constitutional lawyer by background, he cannot fail to see how this creates a serious conflict of interest.

On top of that, Clinton’s evasions aren’t working. A new survey indicates that 60 percent of voters think she’s lying about her emails, versus 27 percent who believe her. Although she still possesses an edge over Donald Trump in polling, EmailGate remains a serious problem for Hillary’s campaign, since it highlights so many Clintonian mores that so many Americans have disliked for so long. Pervasive, carefully planned dishonesty. Lies to cover up corruption and grifting off our political system. Above all, a deep sense that rules are for average citizens, not for Clintons and their privileged coterie.

Yet another revealing intersection of Clinton lies, corruption, and secrets has come to light thanks to EmailGate. This involves the 2011 appearance of Rajiv K. Fernando on the International Security Advisory Board, a sensitive committee that oversees the State Department’s work in counter-proliferation and nuclear matters. The ISAB sees a lot of highly classified intelligence and consists of seasoned experts in arms control and international security. Its members are largely greybeards with decades of experience in the military, diplomacy, and security.

Fernando was none of those things. A Chicago securities trader with no relevant background, ISAB members seemed perplexed by his appearance in their midst in 2011. “We had no idea who he was,” said one board member. Fernando knew nothing about intelligence or nuclear weapons, but he was a big-league donor to the Clinton Foundation—and that was the fact that mattered. Although Team Clinton went to great efforts to obscure exactly how Fernando got on the ISAB—particularly how Hillary Clinton’s staff sneakily placed him on the board—this was yet another pay-for-play scam inflicted on the U.S. Government and the taxpayer by the Clintons.

To make matters worse for Hillary, it recently emerged that at least one of the emails she handed over to investigators under subpoena in fact did contain classified information that was marked as such. The April 2012 email chain discusses an impending phone call with Malawi’s new president. The important part is an email from Monica Hanley, an aide, to Clinton, including the “call sheet” for the secretary. In layman’s terms, this was a note for Secretary Clinton telling her what she needed to discuss during her scheduled phone conversation with a foreign head of state.

We don’t know what that was, however, since most of that email has been redacted as classified at the Confidential level, the lowest classification level in the U.S. Government. The smoking gun here is that the call sheet begins with the line: “(C) Purpose of Call: To offer condolences on the passing pf President Mutharika and congratulate President Banda on her recent swearing in.”

Everything after that has been redacted. But that “(C)” is what is termed a “portion marking,” a tip-off to the reader that the paragraph following is classified. (For how this all works in practice, see this explainer.) In other words, Hanley knew she was sending classified information in an unclassified email to Hillary Clinton’s personal email account, an unambiguous violation of Federal law.

It’s difficult to see how the FBI can ignore such an obvious violation of the law.

This gives the lie to Clinton’s much-repeated mantra that she never sent or was sent anything marked classified in her unclassified, personal email while serving as our nation’s top diplomat. That is demonstrably false, we now know.

In reality, nobody goes to jail for mishandling classified information at the Confidential level. However, the Hanley email proves that Hillary’s staff was emailing her classified information in unclassified channels, that it was marked classified, and that it was transiting Clinton’s personal email server. It’s difficult to believe that a mere aide like Monica Hanley decided to break the law like this, as she surely knew she was, on her own initiative.

It’s also difficult to see how the FBI can ignore such an obvious violation of the law. It likewise raises questions about what was in the 30,000 emails that Clinton decided to delete. In the nearly five months remaining until the presidential election, we can expect a regular drumbeat of revelations about EmailGate, none of them flattering to the Democratic nominee.

Last week the Associated Press broke a big story about how Clinton’s “unclassified” emails included the true names of CIA personnel serving overseas under cover. This was hardly news, in fact I broke the same story four months ago in this column. However, the AP account adds detail to what Clinton and her staff did, actions that placed the lives of CIA clandestine personnel at risk. It also may be a violation of the Intelligence Identities Protection Act, a 1982 law that featured prominently in the mid-aughts scandal surrounding CIA officer Valerie Plame, which so captivated the mainstream media. More recently, former CIA officer John Kiriakou spent two years in Federal prison for violating this law.

To make matters worse for Team Clinton, last week it emerged that several of the classified emails under investigation involved discussions of impending CIA drone strikes in Pakistan. Clinton aides were careful to avoid hot-button words like “CIA” and “drone” in these “unclassified” emails, engaging in a practice that spies term “talking around” an issue.

However, the salient fact is that the CIA—which has the say here—considers this information to be Top Secret, as well as enormously sensitive. It had no business being in anybody’s unclassified emails. As the secretary of state, Ms. Clinton and her top staff had access to classified communications systems 24 hours a day. They chose not to use them here—a choice that clearly violated Federal law. Moreover, this new report demonstrates that a previous Clintonian EmailGate talking point, that discussions of drones in emails were no more than pasting press pieces, and therefore innocuous, was yet another bald-faced lie.

How the FBI can look at all this and not recommend prosecution of someone for something in EmailGate strains the imagination. Yet President Obama has clearly signaled that it’s all no big deal. Director James Comey has a tough job before him when he takes the FBI’s official recommendations regarding EmailGate to Attorney General Lynch for action, probably sometime this summer. Since Comey is now under a cloud over the FBI’s embarrassing mishandling of Omar Mateen, the Orlando jihadist mass murderer, perhaps his resignation over that matter would be welcome in the White House, which then could find a new director more willing to bend to Obama’s wishes.

Make no mistake, there are more than a few senior intelligence officials in Washington, DC, who are livid about Hillary Clinton’s willful disregard of clearly defined laws on the handling of classified information. Her misconduct endangered sensitive intelligence programs—and lives. Even if Comey is a sacrificial lamb here, there are high-ranking spies who are perfectly willing to leak the sordid details of EmailGate to the media if the president pulls a Dick Nixon and tries to subvert our Constitution to protect himself and his designated successor.

And in the unlikely event that nobody in our nation’s capital is willing to go public with exactly what Hillary Clinton did, it now seems the Russians may do so. It’s highly plausible that Russian intelligence services, among others, have many of Clinton’s emails, perhaps all of them, given how slipshod her security arrangements were.

Therefore the recent statement by Julian Assange, head of Wikileaks, that his organization plans to release more of Clinton’s emails should not be dismissed out of hand. Although Assange is prone to flights of fancy, Wikileaks has long served as a front for Russian intelligence, as Western security services are well aware, so it may not be fantasy that he could get his hands on more of Hillary’s emails. It would be supremely ironic if the Kremlin demolishes Hillary Clinton’s presidential aspirations thanks to her own neglect of basic communications security when she was secretary of state.

John Schindler is a security expert and former National Security Agency analyst and counterintelligence officer. A specialist in espionage and terrorism, he’s also been a Navy officer and a War College professor. He’s published four books and is on Twitter at @20committee.