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|Andrew C. McCarthy||October 16th 2016|
Among the most noteworthy of the hacked e-mails from John Podesta’s accounts is an exchange in which Podesta consults Clinton consigliere Cheryl Mills about the private e-mail exchanges between President Obama and then-Secretary of State Hillary Clinton.
As readers may recall, I have long maintained (see here and here) that the principal reason why Mrs. Clinton was not prosecuted, despite a mountain of evidence that she committed felony mishandling of classified information, is the fact that Obama engaged in the same kind of misconduct. The president’s use of a private, non-secure channel to discuss sensitive matters with high level officials may not have been systematic, as Mrs. Clinton’s was. (Obama’s disturbing use of an alias, however, suggests that Clinton was not the only one he was privately e-mailing.) Nevertheless, the fact that the president was e-mailing Clinton means he not only participated in her misconduct but also that the Obama-Clinton e-mails would have been admissible evidence in any criminal trial of Clinton.
For the parties to prove such culpable conduct on the president’s part in a high-profile criminal trial would have been profoundly embarrassing to him, to say the least. Therefore, it was never going to happen. As I’ve noted before, after exclaiming, “How is that not classified?” upon being shown an Obama-Clinton e-mail by the FBI, Hillary’s confidant Huma Abedin asked agents if she could have a copy of the exchange. She obviously realized that if Obama had been communicating on Clinton’s non-secure server system, no one else who had done so was going to be prosecuted for it.
We now know that Podesta was very concerned about the Obama-Clinton e-mails and turned to Mills for advice. His succinct e-mail to Mills is dated March 4, 2015 (at 8:41 p.m.), and he entitled it “Special Category.” He stated: Think we should hold emails to and from potus? That’s the heart of his exec privilege. We could get them to ask for that. They may not care, but I [sic] seems like they will. Plainly, Podesta was suggesting to Mills that the Obama-Clinton e-mails were in a “special category” — i.e., distinct from the tens of thousands of other Clinton e-mails — because they involved the president.
Only the president has power to invoke executive privilege, and Podesta believed such invocation would legitimately cover a communication between Obama and his secretary of state, since such consultations are “the heart of” the privilege recognized by the Supreme Court in United States v. Nixon. (I think he was wrong about that, but that’s a matter for another day.) The timing of the March 4 Podesta-Mills e-mail is highly significant. If Mills ever responded to Podesta’s question, we do not have an e-mail to that effect. It is unlikely Mills would have ignored Podesta, particularly on a matter of such significance. Thus, I suspect further discussion was had face-to-face, by phone, or through intermediaries. The timing of the March 4 Podesta-Mills e-mail is highly significant. The date places it about three weeks after Podesta left his White House job as the president’s top advisor in order to head up the Clinton presidential campaign; the transitioning Podesta was still involved in Oval Office doings, and the Clinton campaign was up and running though not yet publicly launched. More significantly, the e-mail occurred when both the administration and the campaign were in crisis mode: It was immediately after the New York Times publicly exposed Clinton’s private e-mail system, and the House Benghazi committee had just issued a subpoena, demanding that Clinton preserve and provide any private e-mails within the scope of the committee’s investigation. With that as background, we should consider three salient matters.
1. Obama’s Concealment of His E-mails with Clinton In the days immediately after the Times’ revelation of Mrs. Clinton’s systematic use of private e-mail to conduct government business, President Obama sat for interviews in which he claimed that he’d learned of Clinton’s personal e-mail use through “news reports” like everyone else. He flatly denied that he had any personal knowledge about the matter. Clearly, the president was lying to the American people: He knew he personally had engaged in several e-mails with Clinton. By extension, Obama was also lying to the Congress. As he well knew, congressional committees had been investigating matters (most prominently, Benghazi) in which communications between Obama and Clinton were of immense importance. Now, we know Obama not only had intimate personal awareness of what Clinton was doing; his top White House advisor, Podesta, was both aware of and concerned about the Obama-Clinton e-mails. Did Obama figure that because he had used an alias, the public and the Congress would never find out about his e-mails with Clinton (and with whomever else he has been exchanging e-mails while using the alias)? Did the president figure he could quietly invoke executive privilege such that no one would ever find out about his e-mails with Clinton? Given that Obama was manifestly determined to conceal his e-mails with Clinton, what is the chance that he would ever have permitted a prosecution of Clinton, which would necessarily have exposed those e-mails? To repeat what I’ve been arguing, I’d rate it as something less than non-existent.
2. The Benghazi Angle We know that on the evening of March 4, when Podesta e-mailed Mills, the matter of greatest concern to the fledgling Clinton campaign was the House Benghazi committee’s subpoena for former Secretary Clinton’s private e-mails. Before Podesta contacted her, Mills received an e-mail from Robby Mook, the Clinton campaign manager. There had been discussion among Clinton operatives about whether the State Department would release all of the e-mails Clinton had turned over (i.e., the 30,000 she had surrendered, not the 33,000 she had withheld and would soon undertake to destroy). Mook thus wanted “clarity” on whether “this House subpoena is just for Libya, right?” Mills replied that this was “right.” Did the president figure that because he had used an alias, the public and the Congress would never find out about his e-mails? In the midst of this discussion about the subpoena, Mills received Podesta’s message about the Obama-Clinton e-mails — just a half-hour before she responded to Mook. Given that the House subpoena was front-and-center at the time, one must ask whether Podesta was concerned about possible connections between the Obama-Clinton e-mails and Benghazi. To be sure, this is not necessarily the case. The Clinton camp and the Obama White House were also dealing with the overarching problem of how to handle the e-mail mess in general. Any Obama-Clinton e-mails were going to be a problem for both the White House and the Clinton campaign, not just any Benghazi-related e-mails. Still, the Benghazi question must be asked. Among the most central Benghazi issues were whether Obama-Clinton communications had occurred and, if so, what they were about. For example, why did the White House first deny that Obama had been in contact with Clinton on the night of the terrorist attack when, in fact, the two had spoken on the phone around 10 p.m.? Was there a connection between this call and the statement by Secretary Clinton, issued almost simultaneously, which blamed the anti-Muslim video (rather than al-Qaeda affiliated jihadists) for the attack? To this day, the Obama-Clinton e-mails have not been made public. Quite apart from the question of why the president and secretary of state were communicating on high-level policy matters over a private, non-secure channel, there remains the question whether any of their e-mail communications were related to Benghazi — the appalling lack of security before the attack, the disgraceful lack of a military response during the attack, or the cynical “blame the video” cover-up after the attack. 3. The Obama Justice Department and FBI Ignore and Destroy Cheryl Mills’s E-mails Let’s place the Podesta e-mails (with Mills and other Clinton campaign operatives) in broader context. Not only did they occur right after the public revelation of the Clinton homebrew server and the House subpoena. They occurred in the midst of what we know are communications between Mills and Platte River Networks, the contractor servicing the Clinton server. In late March, Paul Combetta, the PRN technician with whom Mills was in touch, deleted and undertook to destroy all the e-mails on Clinton’s server — including the 33,000 that Clinton had never provided to the State Department, and that she falsely claimed involved only personal matters and contained no classified information. At a minimum, the Podesta e-mails demonstrate that, when Clinton’s homebrew system was revealed, the reaction among Obama-Clinton operatives was not stunned disbelief. Their conduct was, instead, what one would expect from people who were well aware of Clinton’s e-mail situation, and who now understood their mission was to control damage and minimize disclosure. This state-of-mind evidence would have been crucial to any prosecution against Clinton and her confederates for mishandling classified information, destroying government files, or obstruction of justice.
When Clinton’s homebrew system was revealed, the reaction among Obama-Clinton operatives was not stunned disbelief. Since that is so obviously the case, and would have been even more obviously the case to FBI agents and prosecutors working on the Clinton e-mails investigation, why on earth would the Justice Department make a deal with Cheryl Mills that prevented the FBI from examining her e-mails during this critical March 2015 time frame? Consider just one small example: As noted above, it does not appear that Mills replied in writing to Podesta’s March 4 e-mail about concealing the Obama-Clinton e-mails. Did Mills e-mail others in the Clinton camp about the matter? We’ll probably never know.
The Justice Department agreed that the FBI would not examine anything on Mills’s laptop computer post-dating January 31, 2015 and, unbelievably, that the FBI would destroy the laptop after its limited examination. Why would the Justice Department grant Mills immunity from prosecution and negotiate such severe restrictions on the FBI’s ability to review and preserve her e-mails in exchange for access to Mills’s laptop computer? After all, they could have forced Mills to produce the laptop, without making accommodations, by simply issuing a grand-jury subpoena. And why, after Mills asked for and received immunity from prosecution for her conduct, would the Justice Department and the FBI permit her to sit in — as a lawyer — on Clinton’s FBI interview, a decision that not only flouted ethical rules and federal law but would also have damaged the case against Clinton had there been an indictment?
Try this for a theory: Since President Obama had used an alias to discuss sensitive matters on Clinton’s private, non-secure e-mail system, had then falsely denied knowledge of that system, and had decided to conceal his e-mails with Clinton from the public, the Justice Department knew that no one was ever going to be prosecuted anyway. The Justice Department and the FBI could rationalize cutting otherwise inexplicable deals that they would never cut in a case they were actually trying to make because they knew there was not going to be a case — not against Mills, not against Clinton, not against anyone.
Andrew C. McCarthy is a senior policy fellow at the National Review Institute and a contributing editor of National Review.