If Clinton Loses Her Security Clearance, Could She Still Be President?

If Clinton Loses Her Security Clearance, Could She Still Be President?

REUTERS/Stephen Lam

For the past six months, the issue of Hillary Clinton’s secret e-mail server has mainly played out as a campaign news story, and for good reason. It provides plenty of drama in a Democratic primary that lacked any suspense until just recently. The former Secretary of State had come up short in 2008 in her bid to become the first woman at the top of a major party presidential ticket, and she had spent four years serving Barack Obama as preparation for a second run at the nomination.

Thanks to a series of devastating losses in state and local elections over the past six years, Democrats had few options to Hillary Clinton. Even now, when Clinton appears in deep trouble in polls and legal matters, Democrats have few choices other than retreads such as Joe Biden or John Kerry, or fringe figures like Bernie Sanders, who identifies as a Socialist rather than a Democrat.

Related: U.S. Intelligence Agencies Refer 305 Clinton Emails for Review

Clinton’s response has lent itself to campaign-style coverage, too. From the time the existence of the secret server was made public in February by The New York Times, she has botched the handling of this issue in public. After staying silent on it initially, Clinton held a press conference in which she asserted that the e-mail server never transmitted sensitive material, and that more than half of the e-mails on it had been deleted by her team before turning it over to the State Department. Clinton pledged never to turn over the server itself, claiming that it was personal property.

Two of those emails from spy satellites and the NSA were classified as Top Secret when they were sent and are classified now.

None of these statements has held up to scrutiny. A small sample of 40 e-mails from the data given to State was audited by Inspectors General from the intelligence community, which found four e-mails that contained classified e-mails. Two of those included information from spy satellites and the NSA that was classified as Top Secret/Compartmented Information, the highest classification level for the US--data that was “classified when they were sent and are classified now.”

A subsequent review of 6,000 e-mails – roughly 20 percent of the total surrendered by Hillary Clinton – produced another 300 communications that required redactions to protect classified information. Six months after refusing to turn over the server, the FBI requested and received it, and has some hopes of restoring the original files from the server, which would allow the Department of Justice to see whether the deleted e-mails were truly all “personal,” as Clinton claimed, or whether those got deleted for other reasons.

Related: Dozens of Clinton Emails Were Classified From the Start

From a campaign management standpoint, this has been a fiasco. Clinton’s attempts to make light of the scandal through jokes or sarcastic asides have made fellow Democrats cringe. Turning over the server six months later was a classic political failure, NBC’s Political Director Chuck Todd argued two weeks ago, in that it gained her nothing and left her more legally and politically vulnerable than if she had volunteered it immediately. Her campaign has spent more time on Clintonian parsing of classification disputes and timeline arguments than it has staying on message.

Clinton’s attempts to make light of the scandal through jokes or sarcastic asides have made fellow Democrats cringe.

All of this makes for good campaign-coverage fodder, using the extent of day-to-day updates to gauge the seriousness of Clinton’s predicament. That, however, misses the more fundamental issue that this scandal presents. Do we have the rule of law in the United States, or do our political elites enjoy privileged immunity from the kind of prosecution others could expect in similar circumstances.

Consider, for instance, the existence of the secret server itself. As secretary of state, Hillary Clinton’s official communications did not belong to her but to the people of the United States. The Federal Records Act requires retention of those communications, and the Obama administration specifically required officials to conduct business through official systems in order to retain those records.

Not only did Clinton’s exclusive use of a private server thwart that process, the State Department routinely misrepresented the status of internal communications for FOIA requests because of the secrecy of this system. One federal judge has already ordered State to work with the FBI to find e-mails responsive to one such suit, declaring, “We wouldn’t be here today if [Clinton] had followed government policy.”

Related: Clinton’s Email Fail May be Innocent, But Americans Don’t Trust Her

Furthermore, the transmission and retention of classified material in this system violates criminal statutes, specifically 18 USC 793 and 18 USC 1924. Federal prosecutors have tried and convicted others for these crimes; David Petraeus, Sandy Berger, and John Deutch (pardoned later by Bill Clinton) all plea-bargained on such charges. Those with much lower profiles have done prison time for violations, in cases much less elaborate and deliberate than the secret server Hillary Clinton used to avoid legitimate and constitutional oversight by Congress and the courts. Others simply suspected of it have lost their clearances and their ability to be employed in responsible government or contractor jobs – a consequence that still has not been felt by Clinton or her aides that transmitted classified material through an unsecured and unauthorized system.

Those with much lower profiles have done prison time for violations much less deliberate than the secret server Hillary Clinton used to avoid constitutional oversight by Congress and the courts.

The commentary and coverage of the Hillary Clinton e-mail scandal mainly glosses over these concerns in favor of the daily up and down of campaign coverage. It puts the US media environment in the curious position of suggesting that there is less accountability for violators the higher rank they have. We now have a presidential candidate whose legal liabilities and moral responsibility for subverting oversight and risking our national security secrets go largely unmentioned, even while she argues for being given the highest level of trust and authority in American public service.

That is not just bizarre; it’s antithetical to the American identity. The distinctive concept of American exceptionalism is loyalty to the rule of law over pure nationalistic or ethnic identity. Officeholders pledge to support and defend the Constitution that guarantees the rule of law, rather than a parcel of land or tribal identity. That law binds all equally, from the humble American worker to the President of the United States, or so we expect. Even when applied imperfectly, we expect our institutions to try to make it a reality.

Hillary Clinton’s arrogance and its treatment by the media challenge that national identity to its core. Pundits have called Clinton’s second presidential run another attempted “coronation.” Perhaps that is more accurate than anyone cares to admit.