woody zimmermann 120The recently-released report of the State Department’s Inspector General on Mrs. Clinton’s e-mail practices, during her tenure as Secretary of State was – depending on your political stance – either: (a) potentially very damaging to the Democrats’ presidential nominee-apparent; or (b) no problemo (nothing to see here, just move on). But this is just spin. In truth, the IG refutes every excuse, explanation and argument Mrs. Clinton has offered about her use of a private, unsecured e-mail server and a non-departmental e-mail account over her four years at State. Other writers have detailed the IG’s findings more thoroughly than I can. Suffice it to say, the net is drawing ever tighter around her conduct. There is very little place left for her to hide on this matter.

Friends who, like I, have served careers in the federal security-environment agree that any ordinary person who had done what Mrs. Clinton did with classified material would long since have been called to account. The result would be termination of employment, or a fine, or possible imprisonment – or all three. People have gone to the big house for far less serious offenses.

As I hardly need mention, however, Mrs. Clinton is not an ordinary person. She is a former senator, former Secretary of State, wife of a former president, and a current candidate for the presidency. She is very well-connected, politically. And – not to put too fine a point on it – her party still runs the White House. Her conduct was certainly negligent, and might have been deliberately deceptive. But is it really in the cards for her to be indicted and prosecuted?

During the sporadic public debate on these matters – sometimes conducted by mainstream media people who prefer denouncing Donald Trump’s wealth, business practices or extravagant rhetoric – many reporters have commented on Mrs. Clinton’s apparent disregard of State Department “regulations” on classified material. They dismiss her handling of State documents as just an administrative matter, involving a few rules that she followed less than perfectly.

This is partly true, since regulations were undoubtedly involved. But the implication that this reduces Mrs. Clinton’s conduct to mere “infractions” of some internal department-rules is incorrect and misleading. Those governing regulations were not contrived, willy-nilly by unknown clerks or bureaucrats at some low level. Instead, they were drawn from from laws enacted by previous Congresses and presidents to protect material which, if compromised, could seriously damage the country’s security and our safety. Media’s duty to keep the public well informed is not served by encouraging citizens to believe that regulations on the handling of classified material are just internal “administrative rules.” The FBI does not investigate administrative infractions. These are very serious matters, and it is wrong to mislead the public about them.

All that being said – some over-arching questions about the FBI’s “investigation” of Mrs. Clinton are extant. In the following paragraphs I’ll try to answer them within the bounds of my own understanding and analysis, and the experience of others. It’s not a comprehensive list of questions, as we shall learn in the weeks ahead.

  1. 1.Is the FBI’s investigation of Hillary Clinton’s e-mails real?

In other words, is it just for “show?” To the best of my knowledge, it’s a real investigation – although not exactly the kind conducted after a bank-robbery or a kidnapping. In such cases, a crime has clearly been committed. The FBI comes in because these are federal crimes, under law. But in some instances, where matters are more complex, the FBI must first find out if federal statutes were violated. This might not be the mission envisioned for the FBI when it was initially formed, but it’s where the agency is now. Modern crime can be more complicated than in those halcyon days when John Dillinger was robbing banks, Bonnie and Clyde were blazing their way across the country, and the Lindbergh baby was kidnapped.

Nevertheless, I’m sure it’s accurate to say that most FBI investigations begin with at least a suspicion that a federal law has been broken. Surely this was true in Mrs. Clinton’s case. Guys like me, experienced in the protocol of federal security “regulations,” can’t be the only ones jumping up and saying, “Hey! You can’t do what she did.” The FBI had to investigate because: (a) its director and his agents are serious people who know the law; (b) there was a strong suspicion that she had broken the law; and (c) large numbers of citizens recognize that Madam Secretary messed up in an area that they know well. Ignoring her conduct just because of her political stature would create a huge national uproar. Richard Nixon was driven from office because he lied to the American people. No one ever hinted that he mishandled national security information.

  1. 2.Could she be indicted and prosecuted?

Yes, it’s possible, but this is not just a matter of evidence or investigation. It’s a political question, too. We know the FBI is not commissioned to carry out the president’s political agenda or wishes. Director James Comey was appointed by President Obama in 2013, and he is well-qualified for his job. He is not supposed to be political. But he does work for Attorney General Loretta Lynch, who is quite political, as was her predecessor, Eric Holder. Recent, highly publicized incidents have shown that Mrs. Lynch is fully on board with Mr. Obama’s choice of which laws to enforce, which to modify, and which to ignore. How vigorously the likely presidential nominee of her own party should be pursued would surely be part of her “guidance” to Mr. Comey. It is unlikely that he would disregard it.

Outside of the DoJ’s inner circle, no one can be sure what that guidance is, or of how Mr. Obama has directed it. I’m not the first to suggest that all government agency-heads understand that they work for Mr. Obama. Current and past Congresses have labored mightily to make some federal arms “independent” of presidential influence, but every agency-boss undoubtedly knows he must follow a president’s directives, recommendations, and subtle (or not so-subtle) hints on how certain matters should be handled. This is Government 101 – no surprises here.

Accordingly, it must be seen that how the FBI’s investigation of Mrs. Clinton is conducted, as well as what its ultimate result will be, are matters entirely under Mr. Obama’s control. Whatever he might claim to the contrary, this is unquestionably true. In critical areas like law enforcement – especially the prosecution of political figures of the president’s own party – we can be sure that nothing goes forward without the president’s explicit approval. Pundits and reporters claiming otherwise are living in Fantasyland.

  1. Why is the investigation of Mrs. Clinton taking so long?

There could be many reasons. We suggest two, but there could be others.

  1. (a)Quantity and availability of possible evidence. There is probably a lot to sift through in order to determine if any charges can reasonably be brought. We already know that Mrs. Clinton’s e-mails numbered in the tens of thousands. Agents must winnow this down to items that show real violations of secrecy laws. This is bound to take some time. How much time would depend on how many agents are investigating and whether needed info is available. We know it has taken a lot of work to reconstruct some of her e-mail records.
  2. (b)Political calculus. While it is certainly true that this investigation can proceed only with the president’s blessing, it is also true that he must appear impartial and uninvolved. If he should quash the investigation entirely, a political firestorm would erupt, and Mrs. Clinton – the candidate of his own party – would certainly be hurt. Moreover, Mr. Obama’s own legacy as an “honest” president would be ruined as he leaves office. So it’s probable – likely, in my opinion – that the investigation is moving forward, but very slowly in order to “run out the clock” and not finish before the general election. Of course, I could be entirely mistaken about this. (I hocked my crystal ball after the 2012 election.)
  3. 4.Has she done any real damage?

This is the $64,000-question. A buzz out there suggests that her server was hacked, but we don’t know for sure. Nor do we know if the insecure server and e-mail traffic let outsiders see information they shouldn’t have. I’m not alone in suspecting that the investigation is running long because the FBI is trying to ascertain if hacking really happened and, if it did, who ended up seeing what. It’s important, because a Clinton-faction has been noisily claiming that she isn’t culpable because no real harm was done. By law that’s not really true, but some in the media are buying it. Demonstrating that harm was done would fatally damage that claim and cement the FBI’s case. Mrs. Clinton would be in big trouble.

  1. 5.How will it all end up?

We’d all like to know this, of course. But no one really knows – maybe not even the president, because the final act might depend on the general election. There are several possible scenarios. Take your pick:

  1. (a)Indictment delayed, Mrs. Clinton loses the election. In this scenario, she could be indicted soon after – perhaps during the Mr. Obama’s final months, but more likely after the new (Republican) president is sworn in. Mr. Obama might prefer not to soil his hands with prosecution of a fellow-Democrat. It would be an unpleasant conclusion to his presidency, and might damage his cachet in the Democratic Party, not to mention his future earning power.
  2. (b)Indictment delayed, Mrs. Clinton is elected. In this case it’s not hard to imagine that the FBI investigation will just fade away. A small item will eventually appear on page A-18 of the Washington Post, reporting that no charges will be brought in the matter of Mrs. Clinton’s e-mails. (You don’t need to be Clarence Darrow to predict this.)
  3. (c)Indictment before the election. This seems unlikely but if it happens, it means that Mr. Obama either believes Mrs. Clinton will lose the election, or wants her to lose. In the first case, he leaves office with a reputation for righteous justice – perhaps knowing that the evidence can’t support a conviction. In the second case, the known animosity between the Obama and Clinton families will finally have borne its bitter fruit. An indictment just before the election would ruin Mrs. Clinton – almost certainly resulting in her defeat. Should she win anyway, the FBI – indeed, the entire DoJ – will feel the wrath of a woman scorned when she takes office. (A nightmare as ever was.)
  4. (d)Indictment quashed by Obama’s DoJ. It’s hard to see this happening in the present political climate, but you never know. Mr. Obama might feel strong enough to do it, and damn the consequences. What does he care about the whining Republicans? Besides, it would energize his base and burnish his street-rep as a real mensch (even if he’s not Jewish). Or he might be so desperate to have a Democrat carry on his legacy – a so-called “Obama third term” – that he’ll let her skate. A wild card in the deck could be a civil suit by some former FBI agents who know she’s guilty and won’t let it go. I hear rumors of this from people who should know, but I can’t confirm them. When it comes to politics, never say “never.”

Although this complex, politically-charged matter is not entirely in the voters’ hands, we do have a key role. At the end of the day, We The People are the final dispensers of justice. If, in spite of everything – even an indictment – we still elect Mrs. Clinton, we shall have made our ruling.

Shakespeare’s famous play, Henry V, includes a scene on the eve of the great battle. Henry is quietly going round the camp, incognito, talking with his soldiers. They don’t realize he’s the king, so they speak freely. One man admits that he fears the enemy’s strength. Henry’s reassurance rings through history like a great bell: “We’re in God’s hands, brother, not in theirs…”

That’s worth remembering in these times of turmoil and strife.