Will Hillary Be Indicted? Is Wanton Recklessness and Arrogance Enough

I spoke to a friend who was a high ranking official in the Bush administration to try and understand what is involved.  He is not a fan of of Hillary's, no doubt, but he is a highly respected, professional attorney who can analyze issues without succumbing to personal prejudice.  He explained that the exposure of highly confidential documents is very serious but, in his view, this is only a part of the sordid  behavior..  "Anyone who has ever worked at the higher rung of government understands the gravity of conducting all official business on a server not under government control.  If one can analogize to how an office functioned before the electronic-email age, what Hillary did is akin to filing all her State Department documents and correspondence in her garage.  The purpose was not just convenience at the expense of exposing the material to theft or unauthorized access, but rather the goal was for her alone to decide what documents and correspondence will be turned over to the government, what will not, and to thus shape the history and appraisal of her role."

Of course, intelligence services , common thieves, and iconoclastic mischief seekers will have had relatively easy access to all this confidential information, and it is statistically improbable that Hillary's materials were not widely accessed.  But this was just  a recklessly negligent byproduct of her arrogance and disregard of rules.

The import of what my friend told me hit home when I learned that Hillary kept all her email files after she left office.  Every last one.  Not until almost two years after she left office, when the Senate Committee investigating the Benghazi tragedy demanded that the State Department turn over all of the then Secretary's emails, did the Department realize or acknowledged (probably a bit of both) that she had taken all her emails with her-or more accurately, the Department never had had them.  Now the cat was out of the bag and the emails had to to be obtained.

But how many of her emails did she ultimately turn over?  According to Hillary Clinton, her  private server contained a total of 62,320 sent and received emails from March 2009 to February 2013. Based on her "review process", 30,490 of these were  "work" and "potentially work-related" emails, and she had each of these printed out  in hard copy and handed over to the State Department (50,000-55,000 pages in all).  The remaining 31,830, she assures us, were private, personal records, which included "emails about her daughter's wedding plans, her mother's funeral service, family vacations, etc."

So, we are told, 51% of all her emails were private.  Give us a break!   Anyone who has worked (or has lived with one who has worked) at an all consuming job12-16 hours per day knows how many emails are sent and received.  Can one seriously believe that the Secretary of state wrote or received a personal email for every work or "potentially work" related email sent or received?  Such a claim insults our intelligence.  Not even the most venerable clerk at Bituach Leumi could come close to such a record of personal focus and indulgence.  If this were really the case, one should ask what Clinton was really doing during all these travels, meetings, conferences, and treaty negotiations.  While common sense and life experience require a review of the allocation of emails between business related (to be turned over to the government) and personal (to be kept), Hilary made sure that this would not happen.  She ordered all the hard disks erased.  Erasing these disks was itself a severe impropriety , as  the State Department's Inspector General report concluded. But as someone who lived through the Watergate tape saga, Ms. Clinton understood that un-erased tapes (or disks) which constitute evidence cannot long be withheld-not by a former cabinet official, not by a presidential candidate, and mot even by an elected president.  Best to destroy the evidence.

I have read but cannot verify that the FBI has possession of the disks and that the disk data was not entirely erased beyond recovery.  We in Israel know from Shula Zaken's experience at our own Ministry of the Economy (then, the Ministry of Commerce and Industry) that deleting files does not erase them.  We also know that there are utilities which write over disks files to make recovery very difficult or even impossible.  What we do not know is the sophistication of the people ordered to wipe the disks clean and whether the disks can nevertheless yield significant amounts of information.  If the "professionals' who wiped the disk are the ones who initially set up the vulnerable private network, there is a reasonable chance that much of the data will be recovered.  If so, we may find that much of her "personal" emails were not so personal.

The email system utilized by Hillary Clinton clearly compromised United States' security in a profound way.  Over 2000 of Clinton's emails have now (retroactively) been marked  "classified", 65 of them "secret", and 22 "top secret".  But even though not formally classified when used by Clinton, the standard non-disclosure agreement signed by Clinton as part of the condition for her gaining top security clearance, required her to treat all sensitive information as if classified.  This, she clearly neglected to do.  For it would be astounding if the vast majority of the Secretary of State's emails which kept her informed of all facets of US foreign and defense strategy were not "sensitive".

But, as the former Bush official explained, the central gravaman is not even the 2000 sensitive emails which were essentially unprotected: It is the entire system of communication utilized by Secretary Clinton, all of which was exposed to foreign penetration.  Indeed, any intelligence service which did not take advantage of this monumental and seductive exposure must be considered negligent beyond comprehension, subject to severe sanction by its own government.

Here is how I understand the system to have worked under Clinton's unlawful and reckless stewardship.  When one of Hillary's close aides at the State Department received a highly classified intelligence report that, let's say, the President of France had decided to oppose a particular US initiative, he/she didn't send a copy of the top secret CIA, NSA, NSC, etc. briefing.  Nor would he/she write that a "top secret" or "eyes only" document disclosed such and such a fact.  Rather, he/she would simply write, "Madam Secretary,  we are convinced that President Hollande will oppose the X initiative".  Now, depending on how secret and closely held President Hollande's decision, the particular foreign intelligence agency reading this email (let's say, the French Directorate-General for External Security) could easily conclude either that the French President's communications had been breached or that there wass a person within his tight circle of advisors who was cooperating with a US or close ally's clandestine agency.  The mere statement of fact in any of the many, many thousands of unclassified emails between Clinton and her aids was profoundly compromising.  Yet this type of email exchange was a major tool -maybe the most prevalent tool – for Clinton's supervision of the US foreign and defense policy.  Not only did email serve her during the total of 360 days she travelled during her tenure, the famous pictures of her so intensely tending to her emails were mostly taken on Capital Hill, at the White House and, generally, in close range of Foggy Bottom.  Clearly, she used these emails to stay on top of her job.  And what Clinton read and wrote, China, Russia, France, Great Britain, to name some, all avidly read over her shoulders.  The immense exposure is almost impossible to contemplate.

The most pressing question and the one on everyone's mind, of course, is whether Hillary Clinton will be indicted by Obama's Justice Department, and, if so, when.  The FBI director has said that the FBI favors thoroughness over timeliness when those two important considerations clash, and that the Democratic nomination convention is not a red line deadline.

Without a malicious intent to compromise the nation's security, there may be little chance of such an indictment.  Clinton was arrogant and reckless in the extreme, but few would contend that she was malevolent.  And while the State Department Inspector General concluded that her scheme to operate outside the Department's communication network violated law, there is apparently no criminal or even civil sanction for this violation.

Last month, U.S. officials did move to extradite the Romanian hacker who disclosed the  vulnerability of  Clinton's emails.  Some rushed to interpret this as a sign that she was in serious trouble.  But, it could just as well be that the FBI is crossing every "t" and dotting every "i".  That is its specialty and this is their alibi  For a Democratic administration to indict its candidate for president and its own past Secretary of State would take a measure of fidelity to principle and to due process so far noticeably absent in the Obama administration.  And for any administration to cause havoc in  a  presidential election by indicting one of the nominees would probably take exceptional determination and steely resolution.

This can happen, of course, but it seems unlikely.  Too many virtues would have to coalesce.  In the end, Clinton's recklessness and arrogance may not be enough.

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Joel H. Golovensky practices law in Israel and the US.  He is the Founding President of the Institute for Zionist Strategies and the Chairman of the NGO Monitor.  The views expressed are his own.