Surely, Hillary Clinton hopes for a happy conclusion to the maddening string of primaries and caucuses that have exhausted her. Surely, she hopes to be the presidential nominee of the Democratic Party this year. And surely, she hopes to be elected president. These hopes are realistic probabilities in her own mind.
But if she is hoping for the end to her legal woes, that is a false hope — and she knows it.
The relentless barrage of bad legal news for Mrs. Clinton, which has been relegated to below-the-fold stories because of the primary news position of the presidential primary contests, must keep her and her lawyers up late at night. While her husband has been arguing with military veterans at her political rallies and while Marco Rubio and Donald Trump have been mocking each other’s body parts, a series of curious developments has occurred in the Clinton email scandal.
It is fair to call this a scandal because it consists of the public revelation of the private and probably criminal misdeeds of the nation’s chief diplomat during President Obama’s first term in office. Mrs. Clinton’s job as secretary of state was to keep secrets. Instead, she exposed them to friend and foe. The exposure of state secrets, either intentionally or negligently, constitutes the crime of espionage. For the secretary of state to have committed espionage is, quite simply, scandalous.
We are not addressing just a handful of emails. To date, the State Department has revealed the presence of more than 2,000 emails on her private server that contained state secrets — and four that were select access privilege, or SAP. The SAP emails require special codes in order to access them. The codes change continually, and very few people in the government have the codes. SAP is a subcategory of “top secret,” and it constitutes the highest level of protected secrecy, for the utmost protection of the government’s gravest secrets. It is unheard of for SAP-level data to reside in a non-secure, vulnerable venue — yet that is where Mrs. Clinton caused four SAPs to reside.
Mrs. Clinton’s allies in the State Department have perpetrated the myth that the 2,000 emails were recently upgraded to reflect their secret contents. That is untrue. The emails possess secret status by virtue of their contents, not because of any markings on them. Mrs. Clinton had a legal obligation to recognize state secrets when she saw them, no matter their markings or non-markings. On her first day on the job, she swore under oath that she recognized and understood that legal obligation and she promised to comply with it. She did not comply.
This past weekend, the newly revealed emails showed that Mrs. Clinton emailed about the location of drone strikes. By their very nature, such emails contain state secrets. They contained state secrets when she received them; they contained them when she sent them; and they contain state secrets today.
Also this past weekend, Gen. Michael Hayden, formerly director of the CIA and of the National Security Agency, stated on CNN that it is a near certainty that the Russian government and others had access to Mrs. Clinton’s non-secure server and all it contained.
Lawyers familiar with the terminology of state secrets will refrain from using the word “classified” to describe the emails that contained state secrets, even though Mrs. Clinton repeatedly does that. The word “classified” is not a legal term; rather, it is derived from the verb “to classify,” and it means that the classification process has been completed.
Since nothing is marked “classified” — the legal markings are “confidential,” “secret” and “top secret” — Mrs. Clinton has been materially misleading the public and the FBI when she claims that she never sent or received anything “marked classified.”
By saying that, she wants us to believe that in more than 2,000 instances, she failed to ascertain the presence of state secrets in emails she received or sent. No voter but the most hardened supporter, no federal prosecutor, no FBI agent and no juror will believe that.
The FBI investigation process is coming to its logical conclusion, and the judge who ordered the State Department to release all of Mrs. Clinton’s emails also has ordered that her top State Department aides submit to oral depositions — examinations under oath before trial — in the Freedom of Information Act litigation brought by Judicial Watch against the State Department.
He directed the Judicial Watch lawyers to ascertain whether there was a conspiracy in the secretary of state’s office to violate federal law. If those lawyers find evidence of such a conspiracy, they may then seek the oral examination of Mrs. Clinton herself.
This search for a conspiracy will take Mrs. Clinton down the road to perdition — to the end of her hopes. Along that road are instructions to a subordinate to divert all her government emails through her private server. On the side of that road are emails instructing her aides to remove “secret” markings from documents and resend the documents to her via a non-secure fax machine.
On that road are emails revealing the names of secret undercover intelligence assets, the locations of North Korean nuclear facilities, the transcripts of telephone conversations among foreign intelligence agents, and the travel plans of then-U.S. Ambassador to Libya Christopher Stevens in the days before he was murdered.
Democrats who indulge in Mrs. Clinton’s false hopes will do so at their peril. Don’t they want to know of her potential status as a criminal defendant before they complete their nominating process? Or do they, like her, think that they can just hope that all this will go away?
• Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is a contributor to The Washington Times and Fox News. He is the author of seven books on the U.S. Constitution.