Too Big to Jail?

It appears that former Secretary of State Hillary Clinton is up to her wig in felonies due to her cavalier treatment of classified material which she put on her personal, unprotected email server. Yet her campaign insists, despite an ongoing FBI investigation, that the former first lady is not the "subject" of an investigation.

Andrew McCarthy at National Review Online explains the technical use of the term and exactly what's going on with the FBI perusal of Ms. Clinton's derelictions. His essay is very informative.

McCarthy begins by adumbrating the current state of public knowledge of Ms. Clinton's recklessness and mendacity:

The latest shoe in the investigation of Hillary Clinton’s scandalous mishandling of classified information dropped heavily this week. It had already been reported that, contrary to her denials, hundreds of secret intelligence communications were transmitted over the private, unsecured e-mail system on which the former secretary of state recklessly conducted government business. It is now clear that some of these contained “top secret/SAP” information. (SAP is “special access programs.”) This indicates defense secrets of the highest order, the compromise of which can destroy vital intelligence programs, get covert agents killed, and imperil national security.

In other words, there was material on her server, which was accessible to every reasonably tech savvy intelligence agency in the world, which exposed secret operations and operatives. It's not known yet whether Ms Clinton's arrogant defiance of security protocols has cost anyone his or her life but it may well have.

McCarthy then explains that a "subject" of an investigation is a person

whose conduct is being scrutinized and who, depending on what evidence turns up, may or may not be charged. This distinguishes them from targets, who are suspects virtually certain to be indicted for an obvious crime; and from mere witnesses, whose interaction with a suspect suggests no criminality on their part (e.g., the teller in a bank hold-up, or the neighbor awakened by a fatal gunshot next door).

If someone’s conduct is being investigated for potential wrongdoing, it is safe to assume that person is a subject of that investigation. Thus understood, Mrs. Clinton is not only a subject; she is the main subject. After all, the investigation centers on her mishandling of classified information via a private e-mail system that she improperly set up for all her government business and over which she well knew it was illegal to disseminate classified information. And if recent reporting is accurate, the investigation is now delving into potential corruption: the favorable treatment donors to her private foundation were given by the State Department she was running. Given that the investigation appears to be tracking her unique activities, how could she possibly not be a subject? What would otherwise be the point of investigating?

Yet the Clinton campaign and various media outlets insist she's not a "subject" of an investigation, so what's the explanation for this?

As a technical matter, no matter how extensively the FBI pokes around on its own, no one can be a subject of a real investigation — i.e., one that can lead to criminal charges — unless and until there is a grand jury. That does not happen until the Justice Department hops on board. Alas, regular criminal-justice procedures have been suspended by the explosive politics of the Clinton investigation. The FBI is doing its professional, apolitical best to investigate the presumptive Democratic nominee for president of the United States.

The high stakes rattle not only the Clinton campaign but also the Democratic administration in which Mrs. Clinton worked when she engaged in the work-related conduct being investigated. On the one hand, the Obama administration does not want to be seen by the public as obstructing the FBI; on the other hand, President Obama does not want to be seen by his base as tanking the Democrats’ best shot at retaining the White House — the likely fallout if the Obama Justice Department signals that a formal, very serious criminal investigation is underway.

So Obama is hedging his bets. He is letting the FBI investigate, but on its own, without Justice Department prosecutors and the grand jury. This frees the administration and the Clinton campaign to be, by turns, ambiguous and disingenuous about whether there really is a formal investigation going on... I don’t think it’s going to work.

Of course, making the case would not mean the FBI could force attorney general Loretta Lynch — and the president to whom she answers — to pursue the case. The FBI cannot convene a grand jury and present an indictment. But you’d best believe the FBI can make the Obama administration look very bad if it shrinks from doing so. Then it will be a matter of how far Barack Obama is willing to stick his neck out for Hillary Clinton. I’m betting not that far.

A number of commenters familiar with the FBI personnel involved have said that should Attorney General Loretta Lynch refuse to empanel a Grand Jury and issue an indictment there'll be significant resignations in the FBI, as well there should be. The speculation is, too, that all the information that the FBI has accumulated against Ms. Clinton would be leaked into the public domain, which would not only stain Ms. Clinton's image in the midst of a presidential campaign but also, potentially, sully both Ms. Lynch and Mr. Obama. Why would they want to risk that for a woman like Hillary Clinton? I'm betting they won't.