The Innocence of Hillary

Alas, Hillary doesn't deserve prosecution for the email scandal.

In a historically dramatic and vicious Presidential election campaign, perhaps the most potent example of vicious drama arose during the second debate:

Hillary Clinton: It’s just awfully good that someone with the temperament of Donald Trump is not in charge of the law of our country.

Donald Trump: Because you’d be in jail!

The Donald is now in charge of the law of our country, more or less, yet not only is Hillary Clinton not in jail, President Trump now opposes prosecuting her.  As CNN accurately (for once) put it:

It's a stunning departure from the campaign rhetoric, which could come as a shock to some of the President-elect's most ardent supporters.

Considering that "Lock her up!" was one of his most successful applause lines, it's somewhat surprising that a President who so revels in the adulation of vast throngs would willingly give it up. It's not as if the evidence wasn't overwhelming - it's been conclusively proven that Hillary used a private Internet server for government business in violation of several laws; she failed to turn over her emails to the government as required by law.  She went to great lengths to destroy many of them; and she sent highly classified emails over this easily-hackable server.  She might as well have given the information straight to the Russians!

Yet, somehow, FBI Director James Comey decided not to prosecute her, even after putting forth a laundry list of all the reasons why Mr. Obama should have.  We thought Donald Trump would right this egregious injustice, yet no sooner did he get the election in the bag but he lets her off the hook.  How's that for a Grade A flip-flop?

It turns out that we were wrong.  As many have pointed out, the President knows things we don't.  That's right, folks: Hillary, for all her crimes, doesn't deserve to go to jail over her classified emails.  Being jailed for taking bribes, peddling influence, or destroying government property, maybe, but not for violating secrecy laws.

"Tricky Dick" Nixon's Revenge

Years after resigning in disgrace, ex-President Nixon gave a celebrated interview to British journalist David Frost.  In the course of this interview he made a highly controversial statement:

Frost:...Would you say that there are certain situations - and the Huston  Plan was one of them - where the president can decide that it's in the best interests of the nation, and do something illegal?

Nixon: Well, when the president does it, that means it is not illegal.

Frost: By definition.

Nixon: Exactly, exactly. If the president, for example, approves something because of the national security, or in this case because of a threat to  internal peace and order of significant magnitude, then the president's decision in that instance is one that enables those who carry it out, to carry it out without violating a law. Otherwise they're in an impossible position.

The media, of course, cast Mr. Nixon as meaning that the President could do or order anything whatsoever without regard to the law.  Not only is that totally unConstitutional and unAmerican, it's not at all what Mr. Nixon was getting at.  President Nixon was speaking in the context of national security, and on that, he's absolutely right.

Consider: Our government has had secrets since the days of George Washington.  Over the years our government has protected those secrets through the harshest of measures, up to and including execution.  Treason is still a capital crime, and publicizing classified secrets is a serious felony.  Indeed, President Obama was not the least bit shy about prosecuting leakers, even when the information leaked wasn't classified, merely embarrasing.

Yet on October 25, 1962, Ambassador Adlai Stevenson showed a whole stack of highly classified photographs taken by our spyplanes to a room full of foreign agents at the UN at the height of the Cold War.  Was he immediately hauled off and shot?

No, because he'd done so at the direction of President John F. Kennedy.  The photos were of Russian missile installations in Cuba, which the Soviets had denied, and showing them to the world proved that the Russians were warmongering liars.

Showing off the photos gave the Russians highly valuable intelligence about just how good our spyplanes were, which they had not known before.  Under normal circumstances, Russian spies would have killed for this data and the Russians would have richly rewarded anyone willing to sell it to them.

But President Kennedy, as chief executive and Commander in Chief, made the Presidential decision that this intelligence cost was outweighed by the geopolitical importance of showing the Russians for the liars they were.  This is not the kind of decision that can be made in a court, or even in an democratic election: just talking about the decision would have made it public anyway.

Indeed, this is why we have a President rather than a prime minister: our Founders strongly believed that a unitary executive was essential for protecting the country in times of foreign peril.  Anything having to do with intelligence or the military is directly under the control and responsibility of the President of the United States; what he says goes.

President Kennedy said it was OK to show off the super secret spy photos, and that meant it was not illegal.

Get Out of Jail Free

Which brings us to the reason Mr. Comey refused to prosecute Hillary, and why President Trump now agrees that she should pay no price for her "extremely careless" mishandling of classified information: If the President approves something to do with national security, that means it is not illegal.

The FBI's months-long investigation of Hillary's email servers not only unearthed all her mishandling and carelessness, it also discovered proof that she could never be prosecuted for it:

President Barack Obama used a pseudonym in email communications with Hillary Clinton and others, according to FBI records made public Friday.

We'll admit that the consequences and gravity of this ordinary-looking sentence took a while to sink in, but here's what it proves:

  • President Obama knew about Hillary's private email address - obviously, since he personally sent email there.
  • He also knew that this email of Hillary's was not on a classified government system.  This, too, was obvious: you can't send normal emails from a classified system or vice versa, the whole point is that they don't connect.  He had to use a physically different computer to send this email to this address instead of the computer he'd use to send her a message over approved classified channels.
  • There can be no doubt that he approved of her using her secret server because he used it himself, to send her an email.
  • And, he knew that this communication channel was something best kept secret - not kept secret from the Russians, or else he'd have used the classified systems, but kept secret from the American government .  That's the only reason to use a private server if you have access to government-encrypted classified email - there's nothing more secret and private than that, except if it's the government and ultimately the public you're wanting to keep secrets from.

How do we know this?  Simple: he used a pseudonym.  You can't do that on a classified system, and you don't need to - if anyone publicizes a classified email you can throw them in jail and maybe shoot them.  And if it's an ordinary private email that's no big deal, there's no need to hide behind a false name.  Hillary famously complained that she wanted to keep her emails about yoga private, but really, does anybody much care what her two-years'-old yoga schedule was?  We aren't that stupid, and neither is Barack Obama.

And as it turns out: neither is Hillary Clinton.  By secretly communicating with her on her secret and otherwise-illegal private server, and using it to discuss classified information, President Obama magically made her recklessness legal.  Which he had every right to do.  Indeed, we want Presidents to be able to make this kind of decision, and to keep them secret.

This was a spectacularly stupid decision which almost certainly led to every serious intelligence agency in the world knowing everything Hillary Clinton sent emails about, from yoga schedules to spy secrets so sensitive that even the FBI can't see them.  That's why we don't believe that the Russians hacked our election in favor of Mr. Trump - they knew everything about Hillary in addition to knowing what it cost to get her to approve selling them most of our uranium supply.  We also know that an Iranian engineer whose name was mentioned in one of Hillary's emails was executed by the Iranian government.  That's why we believe that our intelligence agencies gave the DNC emails to Wikilealks - they were protecting their own necks from a Presidential candidate who'd shown over and over that she didn't care how many of our people died.

Mr. Obama's blessing Hillary's insecure server, like his other security leaks, was beyond stupid, but, like granting presidential pardons to rich campaign donors, that authority belongs to the President absolutely, and he can't be made to answer for it in any court of law.

Once again, the Clintons have shown their sheer genius in finding an unassailable legal way to utterly shred the law.  We can't help but respect their evil brilliance even more than we did before while thanking a merciful God that this reckless, arrogant, utterly self-centered lawless shrew is nowhere near the Oval Office.

And we also respect President Trump for rightly stepping back from one of his most notable campaign promises in deference to this crystal clear fact of the law.

Petrarch is a contributing editor for Scragged.  Read other articles by Petrarch or other articles on Law.
Reader Comments

This article seems too clever by half. My baloney detector goes off big time.

March 12, 2017 10:52 PM

Hillary deserves to go to jail.
Legally, she gets a pass, for the reason outlined in this article.

March 13, 2017 9:57 AM

This article is poorly reasoned.

First, it is not at all clear that Obama understood that he was sending emails to an unclassified server. A staffer could have set up his account, and her contact info could have been presented as Clinton, SecState, etc with no indication of the server address.

Second, the comparison with Kennedy's decision to declassify photographs is apples and oranges. Kennedy made the presidential decision to declassify classified documents, which is indeed a presidential prerogative. There is no corresponding declassification being declared by Obama. He was merely communicating with his Secretary.

Prosecuting Hillary was always a lose-lose proposition. Although perfectly justifiable, it would have set a precedent of retribution that would have been vicious in the extreme. Unfortunately, NOT prosecuting her will have its own consequences, as our national morality absorbs another lesson on privelage vs the rule of law.

March 20, 2017 8:24 PM

These comments seem to miss the reality of the Trump revolution. There are a lot of elites very comfortable with the Obamacrats. The well connected and well credentialed we're cashing in and invented the term rent-seeking. Their attitude is that if you are not in their club you get welfare, illegal immigrant labor and opioids. The elites are fighting like hell to dis rail Trump's agenda and "prove" that he and his constituency don't deserve to be in the Club.
The Hillary Distraction would play right into heir hands. Forget all the goodies to the Clinton Foundation. Forget the $ 500,00 fee for Bill to speak to the Russians. Forget Obama's use of the EPA as an economy take over mechanism. Just think about this poor lady being bullied by the New Yorker. The headlines from the supplicant press would last up to the mid terms. Trump needs to get Tax, Health Care and Infrastructure points on the board now. No distractions.

March 20, 2017 10:45 PM
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