Hillary Clinton: Criminal Prosecution, Or The Presidency?

It is quite an odd scenario when your 12-month outlook contains the following possibilities: criminal charges and potential imprisonment, or holding the nation's highest office. Such is the fate of Hillary Clinton.

Kayleigh McEnany

Kayleigh McEnany

It is quite an odd scenario when your 12-month outlook contains the following possibilities: criminal charges and potential imprisonment, or holding the nation’s highest office. Such is the fate of Hillary Clinton.

Clinton, who has been at the epicenter of scandal (e.g., lying to the parents of the deceased in Benghazi, engaging in alleged quid pro quo corruption at the Clinton Foundation, bullying her husband’s sexual assault accusers), now faces an FBI probe not on one, not on two, but on three counts of alleged misconduct.

In July of 2015, the FBI began an “extremely serious” probe into whether Clinton mishandled classified information when she chose to conduct State Department business on a private server in her home in violation of federal law.

The probe has continually ballooned with the surfacing of new information. In November, for example, the FBI expanded its investigation into whether Clinton and her team provided “materially false statements” to agents during the course of the case.

And just yesterday, an anonymous source told Fox that the FBI agents “are investigating the possible intersection of Clinton Foundation donations, the dispensation of State Department contracts and whether regular processes were followed” to see if there were violations of public corruption laws. This comes after a formal complaint was filed Friday, alleging that the former Secretary of State gave “preferential treatment” to wealthy campaign donors, running afoul of ethics laws and regulations (ironically passed during her husband’s tenure).

So much for being a woman of the people! But anyone half cognizant knows that was never the case since most of us would not consider ourselves “dead broke” upon leaving the White House.

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For a moment, though, take only the first two subjects of FBI investigation – misuse of classified information and lying to agents – and consider the following narrative:

“As alleged, this defendant used a secret, non-government e-mail account to transmit classified and unclassified information that he was not authorized to possess or disclose. As if those allegations are not serious enough, he also allegedly later shredded documents and lied about his conduct to federal agents in order to obstruct their investigation.”

Although this account could largely describe Clinton’s illegal email activity, this excerpt from the Department of Justice involves not the prosecution of Clinton but the 2010 prosecution of Thomas Drake, an NSA employee whose actions were uncannily similar to those of Clinton’s.

As a result of Drake’s actions, Obama’s Justice Department, under the direction of Eric Holder, slapped Drake with a 10-count indictment alleging violations of the Espionage Act (prescribing felony violations), obstruction of justice laws, and false statement laws, all statutes that Clinton too could find herself on the wrong end of.

Drake and Clinton engaged in several of the same dubious actions. According to the Drake indictment, (1) Drake, like Clinton, “used a secret, non-government e-mail account”; (2) Drake, similar to Clinton wiping her server clean, allegedly tried to “prevent the discovery of evidence linking [him] to his retention of classified documents…”; and (3) Drake purportedly “lied about his conduct… in order to obstruct [FBI] investigation,” an allegation the FBI is currently investigating with regard to Clinton.

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To be sure, there are some differences. For instance, Drake willfully retained and transmitted classified information to a reporter, whereas Clinton, according to the allegations, merely maintained and exchanged classified information in an illegal fashion. But these differences actually make the moral rationale for prosecuting Clinton even stronger. Drake is lauded as a hero by many for his arguably commendable motive of exposing government misconduct in surveillance. Clinton, on the other hand, was motivated by the sole selfish purpose of covering, hiding, and burying her correspondences as Secretary of State.

With Drake, the government mishandled the case and ultimately dropped the charges in exchange for a misdemeanor guilty plea with a sentence of one year’s probation and community service. Nonetheless, the Drake case provides relevant precedent when it comes to prosecuting Clinton. Obama’s Justice Department indicted Drake based on the following three statutes, all of which Hillary’s attorneys would be wise to observe.

(1) The Espionage Act (18 USC § 793 (e) and (f))

Drake, like Clinton, utilized a home computer system to exchange emails containing classified information on a non-government email account. With this server, Drake transmitted information he was not authorized to possess in violation of 18 USC § 793(e).

Though Clinton was authorized to possess the classified information, she is nonetheless subject to the subsequent provision of the Act, subsection (f). In direct violation of the words of the statute, Clinton, although “having lawful possession or control” of information relating to the national defense, permitted through gross negligence “the same to be removed from its proper place of custody [the State Department],” thus violating 18 USC § 793(f).

There is little doubt that the gross negligence standard is met by setting up a private email server in Clinton’s home, thus violating numerous security protocols, including a diplomatic cable from Hillary Clinton herself urging State Department employees to avoid conducting official emails on private email accounts.

Moreover, Clinton’s defense that she did not know the information was “classified” since it was not labeled as such will provide little cover since the Drake indictment concerned some stored information the was not officially labeled “classified” at the time.

(2) Destruction of Evidence (18 USC § 1519)

Drake was also charged with obstruction of justice since he “knowingly altered, destroyed, mutilated, concealed and covered up records…. with the intent to impede, obstruct and influence the investigation of a matter within the jurisdiction of the Federal Bureau of Investigation….” In an attempt to conceal his relationship with the aforementioned reporter, Drake allegedly “deleted classified and unclassified information on his home computer.”

Likewise, we know that Hillary Clinton, in the face of a subpoena, wiped clean her unauthorized private email server located in her home in Chappaqua, New York in what Representative Trey Gowdy called a “unilateral” decision that made her the “sole arbiter” of which of her 60,000 emails should be handed over to authorities and which were deemed personal. As Judge Andrew Napolitano points out, “She now has admitted to destroying subpoenaed evidence after she was on notice of the existence of the subpoena. That’s known as obstruction of justice, as well as destruction of the documents.”

(3) Lying to Federal Officials (18 USC § 1001(a)(2))

Drake’s indictment alleged that he “knowingly and willfully [made] a materially false, fictitious, and fraudulent statement and representation, that is, falsely stating to special agents of the Federal Bureau of Investigation that he never gave Reporter A classified information.”

Perhaps this statute is why Clinton was so reluctant to testify before the Benghazi Select Committee regarding her emails. Perhaps this statute is why Clinton did not answer the House Committee on Oversight and Government Reform’s question about whether “any senior agency official ever used a personal account to conduct official business.”

Forced to choose between stonewalling or perjuring, Clinton chose the former and, in doing so, might have found a way to outwit 18 USC § 1001.

In the prosecution of Drake, Obama Justice Department Assistant Attorney General Lanny A. Breuer stated without hesitation: “Our national security demands that the sort of conduct alleged here — violating the government’s trust by illegally retaining and disclosing classified information — be prosecuted and prosecuted vigorously.”

Perhaps these pressing national security concerns are the motivation for what the New York Times has dubbed the “Obama administration’s unprecedented campaign of criminal charges against leakers.”

Will Clinton become the next object of this unprecedented campaign?

Given the prosecution of Drake, we should expect nothing less than an equally vigorous prosecution of Clinton. The likelihood of this probe taking its proper course, however, is nil, for if the Clinton’s have mastered anything, they have mastered the ability to circumvent scandal – and the law – at every turn. Be it the curious Whitewater scandal or the infinite Bill Clinton sex scandals and his perjury and obstruction of justice, the Clintons have managed to subvert the rule of law and violate the trust of the American people at every turn.

But Hillary Clinton will inevitably face her day of reckoning – if not in the court of law, then in the court of public opinion.


Kayleigh McEnany is a conservative writer and commentator who appears regularly on Fox and CNN. She is currently in the third year of pursuing her J.D. at Harvard Law School. Kayleigh graduated from Georgetown University’s School of Foreign Service and also studied politics at Oxford University. You can reach her by email at Kayleigh@PoliticalProspect.com or follow her on Twitter: @kayleighmcenany.