- - Sunday, October 18, 2015

So far, the media have ignored the most newsworthy and shocking part of President Obama’s recent interview with Steve Kroft of “60 Minutes”: Mr. Obama essentially pardoned Hillary Clinton.

Without Mr. Obama’s comment on the CBS show that Mrs. Clinton’s use of a private server did not pose a national security problem, the criminal case against her would have been open and shut. Government inspectors general have determined that information classified top secret and beyond, including military intelligence gleaned from satellite images, existed on a private server she controlled. Section 793 of the federal criminal code provides a jail sentence of up to 10 years for anyone who is entrusted with information relating to the national defense and “through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust.”

Having received a referral from the inspector general for the intelligence community, the FBI is now conducting a criminal investigation of the former secretary of state’s actions. Those who try to obfuscate that fact by saying the FBI is merely looking into the security of her server forget that the FBI does nothing but conduct criminal investigations. The bureau is not in the business of checking on the security of government email systems.

The FBI is well aware of the consequences of starting a criminal probe of a politician running for office, impairing that person’s chances of winning. For that reason, the bureau, which has repeatedly demonstrated that it is independent and non-partisan, never would have launched an investigation if it had not already determined that Mrs. Clinton had violated the law.

But what has been missed in the public discussion of Mr. Obama’s comment on “60 Minutes” is that as commander in chief, he is the sole final arbiter of what should or should not be considered classified. At any point, the president can decide to declassify material, a step presidents have taken to help book authors or journalists tell the story of successful completed military operations. To obtain a conviction, the Justice Department not only must show that Mrs. Clinton’s server contained information deemed classified at the time but that each item, whether stamped classified or not, was properly classified. Justice Department sources who have been involved in conducting such prosecutions tell me that is a necessary component of a criminal case because government bureaucrats, in their zeal to show their importance, love to classify even newspaper articles.



Mr. Obama’s statement that Mrs. Clinton’s action did not pose a national security problem ipso facto means that the information in question should not have been considered classified and is no longer classified. If Mrs. Clinton is indicted and tried, her lawyers will call Obama as a material witness and likely their first witness. As a private citizen after leaving office, Mr. Obama will not be able to evade a subpoena. In determining whether to charge her, the Justice Department will take that into account, eliminating the possibility of an indictment.

While the White House later attempted to paper over Mr. Obama’s comment by saying he was only speaking about what “we publicly know now” about her case, what is publicly known is that inspectors general have determined that she kept classified information, including military intelligence from satellites, on her private server. Thus, Mr. Obama’s comment applies to any classified information on her server, and the effort by his press secretary Josh Earnest to gloss over the import of his comment changed nothing.

Mr. Obama had no business commenting on a pending case in the first place, a point he has often made when asked about high profile prosecutions. But in this case, his intervention was calculated. As a lawyer who is well aware of his power to declassify information, Mr. Obama had to know what he was doing. And in contrast to how uptight she has appeared to be in the recent past, if you noticed how relaxed Hillary seemed to be during the first debate among Democrats vying for the presidency, she knew exactly what the president had done: Mr. Obama guaranteed that the Democratic front-runner will not have to worry about doing time.

Ronald Kessler, a former Washington Post and Wall Street Journal investigative reporter, is the author of “The Secrets of the FBI” and “The First Family Detail: Secret Service Agents Reveal the Hidden Lives of the Presidents.”

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