As we prepare for the Independence Day celebrations, America is an unhappy nation.
A Gallup poll just revealed that only 52 percent of citizens are “extremely proud” to be Americans, down from 70 percent in 2003.
Only 21 percent of Americans believe the country is heading in the right direction.
When asked to rate American institutions, only three scored better than 50 percent; the military, small business and the police. Big Business, Big Labor, the criminal justice system, and print and TV media couldn’t break 25 percent. The presidency came in just a bit higher than SCOTUS (36-32 percent), with Congress bringing up the rear with a nine percent approval rating.
A reflection of that disaffection is obvious in the two most dynamic forces of this election year – Bernie Sanders and Donald Trump. While their supporters could not be more demographically different, the Sanders-Trump campaign messages are remarkably similar – that a wealthy, privileged elite has rigged the American economic and political systems to their benefit, at the expense of average Americans.
Two news stories that exploded on social media this year have captured the sense of systemic unfairness. The “affluenza”-suffering Ethan Couch, the Texas teen who killed four people while driving drunk in 2014, but was sentenced only to probation (and later took off on the run with his mother), and Brock Turner, the Stanford University swimmer who raped an unconscious woman behind a dumpster, but received only 6 months in prison under a statute that allowed up to 14 years for the offense.
The tea leaves message could not be clearer – if you are wealthy and connected in America, the rules simply do not apply to you.
Enter Hillary Clinton and Email-gate.
In March 2015, news broke that as Secretary of State (2009-2013), Mrs. Clinton never had or used an official State department email address, relying instead on a home-brew server, based in her Chappaqua, NY residence, that was neither secured by nor approved of by government officials. The extra-legal arrangement has, in turn, spawned multiple scandals, from Clinton’s decision to arbitrarily delete up to half the emails on the server (claiming they were personal), to revelations that over 1,000 emails Mrs. Clinton did turn over contained information at various levels of classification within the national security framework.
In January 2016, the Inspector General for the Intelligence Community released a finding that several of Mrs. Clinton’s emails contained information of an exceptionally sensitive nature, captured under the government classification protocol of “Special Access Programs” (SAP).
SAP information is classified above Top Secret, and is designed to limit access to those with a “need to know.” Officials with access to these programs are required to sign a non-disclosure agreement that acknowledges that, “…unauthorized disclosure, unauthorized retention or negligent handling … could cause irreparable injury to the United States or be used to advantage by a foreign nation.” Mrs. Clinton signed her non-disclosure on January 22, 2009. It was this provision that provided the basis for the prosecution of former CIA Director David Petraeus.
In May 2016, the State Department IG released a scathing report regarding Mrs. Clinton’s email system and practices.
The IG report said that it has been department policy since 2005 — four years before Clinton took office — that “normal day-to-day operations” be conducted on government servers. The report also said that in 2007 the department adopted additional policies requiring “non-Departmental information systems” used to “process or store department information” to meet the same security controls as the department’s systems, and requiring that they be registered with the department. Clinton did not adhere to either policy.
Further, the IG report said Clinton “had an obligation” to discuss her email system with the department, but it could find “no evidence” that Clinton sought approval for her unusual email arrangement. If she did, the report says her request would have been denied by the bureaus of Diplomatic Security and Information Resource Management.
That Clinton might somehow not have known about her own email set up and the problems it was causing was punctured in the deposition of Huma Abedin, one of Mrs. Clinton’s closest advisors, who noted efforts by top aides in 2010 to get her on an approved server, with Clinton’s continued insistence that it be “separate.”
While these facts, all available in the public record, are damning in their own right, what is even more troubling are the collapsing rationales, half-truths and outright lies that Clinton team has employed to limit fallout from the scandal. From assertions that Clinton’s home-brew server was “allowed,” to the claim that Clinton did nothing that former secretaries of State hadn’t done before her, to the claim that in fact, she had turned over all the emails in her possession, have been proven false.
Enter the FBI.
Since the summer of 2015, the FBI has been conducting a comprehensive criminal inquiry into the many facets of the Clinton home-brew email arrangement, gathering facts and deposing witnesses, including Mrs. Clinton herself, this past Saturday. Criminal justice experts believe that Mrs. Clinton’s interview signals the last stage of the investigation, and that FBI recommendations to the Attorney General on possible prosecutions will be forthcoming.
That, in turn, makes James Comey, the Director of the FBI, the most important man in America for the next 21 days. It will fall to Comey to review the findings of the Clinton task force investigation and make recommendations to the Department of Justice, recommendations that will have profound ramifications for American politics, the presidential race and more broadly, the continued currency of equality before the law, that has been a foundational aspect of the American nation.
If Comey recommends charges against Mrs. Clinton, he will trigger a political firestorm that has no precedent in American history. No major party presumptive nominee has ever been indicted, let alone weeks before the general election campaign. In charging Mrs. Clinton, Comey would cross a Democratic administration, and, ironically the POTUS who appointed him.
An indictment, depending on its severity, only days before the Democratic convention opens in Philadelphia, would detonate full-scale pandemonium as the new reality of a legally crippled Democratic nominee would trigger an epic battle in among the DNC rank and file on whether to dump Clinton or double-down with her. Wondering why Bernie Sanders hasn’t dropped out of the race yet? This is why.
An indictment could decide not simply whether a Hillary Clinton sits in the White House in 2017, but whether any Democrat will be the 45th president. Indeed, in the dismal world of the Trump campaign, a Clinton indictment is a possible winning lottery ticket in an otherwise flailing and incoherent candidacy.
But what if Comey choses against a Clinton indictment? Sadly, that would telegraph, for all intents and purposes, that the fix is in. There is certainly enough circumstantial evidence to support the supposition.
President Obama, who keeps claiming innocence from any political interference in the investigation, nevertheless has kept commenting on the case and his own view that there is nothing to the charges.
And then there was the blockbuster news this week former president Bill Clinton just happened upon Attorney General Loretta Lynch, as both of their airplanes were on the tarmac, just to have a friendly conversation about golf and grandchildren. The optics could not possibly be worse for both the Clintons and the Justice Department.
And for context, it does matter that subject is Hillary Clinton.
The email controversy is not an outlier for Mrs. Clinton, but the latest in a long line of scandals that demonstrate a contempt for the law and knack for operating above it.
From cattle futures and missing Whitewater legal records, up to the most recent, sordid revelations about the “pay-to-play” paradigm of the Clinton Foundation while serving as the nation’s top diplomat, the chapters of Clinton’s 25 years as a public figure reveal a trail of ethically and legally questionable wreckage that has never been brought to justice.
If Clinton beats the rap on the email controversy, particularly when President Obama’s own appointees at the State Department have found wrong-doing, it will serve to confirm today’s popular narrative that if you are rich and connected, the law simply does not apply to you.
If there is solace to be taken as this pivotal moment in history arrives, it is that America is lucky that it will be James Comey making the decision.
Comey, all 6 foot 8 inches of him, was born in Yonkers, NY and raised in nearly Allendale, NJ. He graduated from William & Mary with degrees in Chemistry and Religion. He’s a graduate of the University of Chicago Law School.
In his law career, Comey has never shied away from controversy. Working in the US Attorney’s Office for the Southern District of NY, Comey helped prosecute the Gambino crime family. Later, working for the US Attorney in Richmond, he served as lead prosecutor for the 1996 terrorist bombing of the Khobar Towers in Saudi Arabia.
Comey’s commitment to the law was tested and proved in 2004, when he was serving as Acting Attorney General. In March of that year, Comey refused to certify the legality of one element of the (then highly secret) NSA domestic surveillance program. Comey’s refusal triggered a bizarre incident where White House Chief of Staff Andy Card and White House Counsel (future Attorney General) Alberto Gonzalez trekked to the hospital room of ailing Attorney General John Ashcroft, attempting to get a weakened and confused Ashcroft to sign off on the order. Comey came too, and pled his case directly.
Ashcroft did not sign.
Later, when Comey and others threatened to resign as a result of the program, Comey got a sit down with the president, and the program was later restructured within Justice Department guidelines to prevent an exit of senior officials.
In refusing the certify the NSA program, Comey took on the intelligence community and the president of the United States who appointed him, in order to preserve the law, an act of personal conviction and professional courage that is all too rare in public life today.
Comey will need all of that integrity, and more, when he decides the fate of Mrs. Clinton and her posse. More than simply the fate of one public official rides on the result. The very view of equal justice before the law is now on trial.
NB: I have served in the federal government for a combined 12 years, in two different agencies. While in government service, I was granted access to classified information, including sensitive information. Anyone serving or who has served in the federal government handling classified information can attest to the thoroughness with which security officials brief new handlers on policies and protocols regarding the access, use, transmission and storage of classified data, and the very real seriousness of security awareness in day-to-day operations.
From my experience – and it is only my experience – anyone who used a personal, non-secured email system to transmit classified information – at any level of classification – would immediately face serious administrative penalties, up to and including termination and debarment from ever working with classified information again. Anyone who used such a system to transmit Top Secret of SAP data would be charged with a felony for each instance and trial and jail time.
If the FBI ultimately chooses not to charge Mrs. Clinton, it must release the specific, point by point rationale for such a decision, including a detailed accounting of how such action by a federal worker would be treated differently..
In the next several days, a man will meet his moment.