To indict, or not indict. That is the question.
Will Hillary Clinton, the assured Democratic presidential nominee, be indicted for using a private email server — quite possibly containing classified information — while Secretary of State?
Or will she be exonerated from criminal wrongdoing, guilty only of bad judgment?
Either way, partisans on both sides won’t be pleased. But that is irrelevant, since justice should be blind. Whether true justice is served remains to be seen, but one thing is certain: Given that the Democratic National Convention is just a few months away, it is imperative that the "verdict" on Mrs. Clinton come down quickly. It is not fair to Clinton, nor, more importantly, the American people, to have this issue hang in limbo any longer.
Indict, or get off the pot.
Much has been made about Clinton’s three big negatives: Her handling of Benghazi, money flowing to the Clinton Foundation from foreigners having interests before the State Department, and the email server.
Benghazi, while showcasing the Obama administration’s bad judgment (and by extension, Clinton’s), is not a smoking gun, because it is political mess, not a legal one.
The Clinton Foundation is, in fact, being investigated by the State Department’s Inspector General, and, some reports claim, the FBI. Given the complex nature of such a probe, including interviewing foreign nationals and investigating overseas transactions, it is reasonable to expect a longer timeframe in which to complete the inquiry.
But the private email server is a different story, since it is much more clear-cut. Let’s take a look:
1) The more time passes, the less likely an indictment. The FBI can investigate all it wants, but an indictment/arrest can only come with a sign-off by a United States Attorney, which presents two big issues. First, while politics should never enter into the equation, it is nonetheless worth noting that all U.S. Attorneys are political appointments of the president. The last thing an outgoing president wants is repudiation of his legacy, and a Republican capturing the White House — especially Donald Trump — would be seen as the ultimate slap in the face to Mr. Obama. The president and Hillary may not be particularly fond of each other, but it’s not in Obama’s interest to see Hillary implode due to an indictment.
Second, no one wants to be the person who, so late in the game, announces the indictment of a presidential nominee, for he will forever be accused of "electioneering." And, should Hillary be indicted, remain the nominee, and lose, the winner will — rightly or wrongly — be delegitimized by a large segment of the electorate. George W. Bush’s credibility was damaged in the wake of Florida’s "hanging chad" fiasco because many viewed his election, ultimately decided by the Supreme Court, as invalid. Indicting Clinton so close to the election would take that perception to a whole new level.
Bottom line: If you’re going to indict, do it within the next 45 days so that the Democrats can potentially find another nominee before their convention.
2) What’s the hold up? At the minimum, there are dozens of agents on the case.
Prosecutors don’t need to wait until the investigation is completed to bring an indictment, as they only need an initial charge or two to get things rolling; additional counts, should they be discovered, could be added later.
And let’s be honest: there is a plethora of areas where Clinton seems to have broken the law:
n Mishandling classified information. Of the 30,000 emails Clinton turned over, the odds of something classified being among them is high, especially given that at least 2,000 were later deemed classified, and at least 22 "top secret." Knowingly removing classified information to an unauthorized location — such as a private server out of the government’s secure network — is a significant crime.
Our government’s most sophisticated computer systems are constantly cyber-attacked by the world’s best hackers, some of whom are on the payroll of foreign nations. Is it really a stretch to think that Clinton’s communications and documents, residing on a run-of-the-mill unsecured server, weren’t hacked?
Given the NSA’s high-profile hacking, the list is long of those looking for payback, be it for embarrassment, a leg up in negotiations, or far worse, attempting to discover secret identities and covert operations that could harm our interests, and place Americans and our allies in grave danger.
It doesn’t take a legal expert, and shouldn’t take scores of FBI agents, to see that the law was clearly compromised by Clinton’s actions. So why the delay?
n Violating the Freedom of Information Act (FOIA). It’s pretty hard to obtain records under that law if they A) reside on a private server, and B) were deleted, as thousands were. And having Clinton and her team be the ones deciding what material to turn over to the State Department is the fox guarding the hen house.
n Violating the Federal Records Act and National Archives regulations, which require that government agencies — not individuals — maintain work-related documents, including emails. It also stipulates that government employees cannot destroy or remove such records. Given that Clinton’s server was located in her home, that would be a strong indication that the State Department was, in fact, not maintaining thousands of records. And if one assumes "deleting" to be a form of "destroying," Mrs. Clinton will have some explaining to do.
Additionally, it begs the question as to how congressional oversight committees could review critical State Department records that they didn’t know existed by nature of those documents residing on Clinton’s private server — seemingly another violation of the law.
A good lawyer can navigate the nuances of the law to cast doubt in areas where it would seem black-and-white. While this may not be an open-shut case, there nonetheless seem to be numerous instances where Mrs. Clinton broke the law. If true, it doesn’t matter whether she did so out of convenience or ignorance, as she claims, because it has long been a tenet of our law that ignorance is not an excuse. If it were, damn near everybody would have a legitimate reason for escaping consequences.
If we assume that Mrs. Clinton broke the law, but isn’t made to face the music, that will be the biggest travesty of all.
We are either a nation of laws, or a nation of connections. If our elite can skate simply because of who they are — when the average person would be found guilty in the blink of an eye — we will have become a banana republic. In most of the world, the upper echelon controls everything. They make the rules, and their kangaroo courts — simply an extension of their power — decide what is "fair," so long as what’s "fair" benefits them.
Congressional Republicans, given their idiocy in politicizing Benghazi, cannot touch Hillary’s email issue with a 10-foot pole, making even a special prosecutor out of the question. Which leaves the Justice Department.
For the good of the country, and the rule of law, we can only hope that its officials will act honorably and without favoritism in bringing this case swiftly to fruition.
One thing is certain: Hillary Clinton exercised horrendously bad judgment, or she broke the law.
When you’re running for president, an indictment in the court of public opinion could be the difference between "Madam President," and being an also-ran.
As the saying goes, "Let justice be done though the heavens fall."
Chris Freind is an independent columnist and commentator. He can be reached at [email protected].
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