The Clinton Investigation Enters a Threatening Phase
The presumptive Democratic nominee encounters a prudent legal but treacherous political choice.
The FBI investigation of former Secretary of State Hillary Clinton’s failure to secure state secrets contained in her emails has entered its penultimate phase, and it is a threatening one for her and her aides.
Federal law enforcement sources have let it be acknowledged that federal prosecutors and the FBI have finished their examination of raw information in the case. After the FBI receives raw data-such as, the nature and number of the state secrets in the emails Clinton failed to safeguard or the regular, consistent, systematic nature of that failure-prosecutors and agents move forward to draw rational inferences from that information.
Then they move forward to corroborate those inferences, searching for other sources to assist or even to contradict them. With one exception, all of this work has been carried out with neutral sources of facts-documents, email metadata, government records and technical professionals.
The exception is Bryan Pagliano, the one member of Clinton’s inner circle who, with either a written promise of non-prosecution or an order of immunity from a federal judge, started to cooperate with federal prosecutors last fall.
Pagliano has discussed to federal prosecutors the who, what, when, how and why he migrated an open State Department email stream and a secret State Department email stream from government computers to Clinton’s secret server in her home in Chappaqua, New York. He has explained to them that Clinton paid him $5,000 for his assistance.
He has also explained to some of the FBI agents assigned to this case that Clinton herself was consistently told by her own State Department information technology professionals and their colleagues at the National Security Agency that her unremitting use of an off-the-shelf BlackBerry was neither an efficient nor an suitable means of receiving, transmitting or safeguarding state secrets. Little did they understand how reckless she was with government secrets, as none were obviously then aware of her use of a non-secure secret server in Chappaqua for all of her email purposes.
We understand that the acquisition and corroboration phase of the investigation has been finished because the prosecutors have started to ask Clinton’s top aides during her time as secretary of state to come in for interviews. This is a sensitive and dangerous phase for the aides, all of whom have engaged counsel to represent them.
Here are the problems.
The Department of Justice (DOJ) will not expose to the aides or their lawyers what it understands about the case or what proof of criminal wrongdoing, if any, it has obtained on each of them. Therefore, if they submit to an FBI interview, they will go in “blind.” By going in blind, the aides run the risk of getting caught in a “perjury trap.” Though not under oath, they could be trapped into lying by clever prosecutors and aggressive FBI agents, as it is a crime-the equivalent of perjury-to lie to them or materially mislead them.
For this rationale, most white-collar criminal defense lawyers will not allow their clients to be interviewed by any prosecutors or FBI agents. Martha Stewart’s lawyers failed to give her that guidance, and she went to prison for one lie told in one conversation with one FBI agent.
After interviewing any Clinton aides who decide to be interviewed, the DOJ personnel on the case will move their investigation into its final phase, in which they will ask Clinton herself whether she would like to speak with them. The prosecutors will essentially tell her lawyers that they have proof of the criminal behavior of their client and that before they show it to a grand jury, they want to afford Clinton an opportunity blindly to challenge it.
This will be a instant she must devoutly wish would pass from her, as she will encounter a damned-if-you-do, damned-if-you-don’t dilemma.
Here is her dilemma.
If she were to speak to federal prosecutors and FBI agents, they would catch her in many inconsistencies, as she has spoken with great deception in public about this case. She has, for instance, said many times that she utilized the private server so she could have one mobile device for all of her emails. The FBI understands she had four mobile devices. She has also falsely claimed publicly and under oath that she neither sent nor received anything “marked classified.” The FBI understands that nothing is marked classified, and its agents also understand that her unprotected secret server transmitted some of the nation’s gravest secrets.
The prosecutors and agents cannot be happy about her public lies and her repetitive demeaning attitude about their investigation, and they would have an understandable spirit toward her if she were to meet with them.
If she were to refuse to be interviewed-a prudent legal but treacherous political choice-the feds would leak her rejection of their invitation, and political turmoil would break loose because one of her most thoughtless and often repeated public statements in this case has been that she cannot wait to talk to the FBI. That is a lie, and the FBI understands it.
Several Democrats who currently understand the gravity of the case against Clinton have taken to arguing lately that the feds should set up a different and higher bar-a novel and unknown requirement for a greater quantum of evidence and proof of a heavier degree of harm-before Clinton can be prosecuted. They have proposed this merely because she is the likely Democratic presidential nominee.
The public will never stand for that. America has a bedrock commitment to the rule of law. The rule of law implies that no one is beneath the law’s protections or above its requirements. The DOJ is not in the business of rewriting the law, but the Democrats should get in the business of rethinking Clinton’s position as their presumptive presidential nominee, lest a summer disaster come their way.
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