Hillary's e-mails vs Plame scandal: A tale of two administrations

When we write stories about Hillary Clinton’s e-mails, critical responses typically come in three veins. One, no one thinks laws have been broken. Two, maybe laws have been broken, but the material wasn’t significant enough to prosecute. Three, Hillary Clinton is too politically connected for the Department of Justice to prosecute.

With that in mind, my column today at The Week walks through a couple of analogous cases and points out the differences, at least thus far, in the response from the Obama administration. First, crimes were committed, and the latest revelation about the 22 e-mails withheld by State raises questions about yet another law:

Clinton admitted that she set up the private email system for her “convenience” — it was easier than operating another email account through the secured State Department system. As a price for this “convenience,” Clinton seems to have personally retained custody of classified material in both the hardware and database in her house without authorization or proper security, until surrendering both to the State Department and FBI last summer.

Unlawful retention of classified material of any level is a crime under 18 USC 1924 with up to a year in prison on each count. Exposure of sensitive national security data through either gross negligence or malice is a felony under 18 USC 793, which carries ten years in prison on each count. The exposure of NOC-listed agents could violate the Intelligence Identities Act of 1982. Two people have been convicted under this statute; John Kiriakou, the former CIA agent turned whistleblower on waterboarding, got out of prison just as this scandal broke in February 2015.

The Kiriakou case is particularly interesting. One might think that the Obama administration would have appreciated Kiriakou’s efforts to paint the Bush-era counter-terrorism policies in a bad light, and especially since he was a key aide to then-Senator John Kerry when Kerry chaired the Foreign Relations Committee. However, the DoJ went after Kiriakou aggressively in 2012 for leaking classified material to journalists, including the identity of one or more intelligence agents. They initially charged Kiriakou under the Espionage Act (whence come 18 USC 1924 and 793) as well as the 1982 law. It got plea bargained down to the latter, and he did two years for what Kiriakou describes as “whistleblowing” rather than leaking.

Choosing to pursue Kiriakou while taking almost a year to do anything with Hillary raises some interesting questions about politicized prosecution at the DoJ. That also sets up another interesting contrast between Barack Obama and George W. Bush, one that makes Bush look much more supportive of the rule of law than his successor:

Joseph Wilson, a diplomat who had opposed the war, wrote a column inThe New York Times criticizing the Bush administration’s analysis of intelligence regarding Saddam Hussein’s weapons program. A week later, Robert Novak wrote a column accusing Wilson’s wife of arranging Wilson’s assignment for the probe into Team Bush’s much-dissected yellowcake uranium claims, outing her as a CIA employee who had operated under “non-official cover” — a status considered to be classified information, and potentially dangerous to both Plame and national security.

The purposeful public revelation of Plame’s identity touched off a furor in Washington over mishandling classified information and potentially putting American resources, methods, and personnel at risk. The CIA demanded that the Department of Justice begin a criminal probe, which began shortly after Novak’s column appeared. President George W. Bush expressed a desire to get to the bottom of the leak. “I want to know who it is,” Bush declared, “and if the person has violated the law, the person will be taken care of.”

Within weeks of the scandal’s eruption, Attorney General had not just called for an investigation, but also assigned it to special counsel Patrick Fitzgerald. The actual leaker (Richard Armitage) ended up facing no consequences, but Lewis “Scooter” Libby got 30 months for obstruction of justice, as well as a six-figure fine. Bush commuted the prison sentence but declined to pardon Libby, leaving the conviction and the fine in place.

Compare that response to the response of the Obama administration:

In the year since the Clinton email scandal was initially exposed, neither the president nor the attorney general have acted at all. Barack Obama has publicly dismissed concerns over the emails, while Loretta Lynch has given no indication as to whether she will pursue the massive and serial violations of federal laws. It is time to ask why. It’s not unreasonable to infer a former Cabinet official and current Democratic frontrunner to succeed Obama rises above the laws applied to other Americans, and that she is exempt from close scrutiny by a politicized Department of Justice.

Of the three critical responses to this scandal, the only one of merit is the third — but that depends on whether enough information makes it into the public record to create political pressure to apply the rule of law rather than the privilege of princes. Later today on The Ed Morrissey Show (4 pm ET), I’ll talk more about this with Rep. Ron DeSantis, who demanded that AG Loretta Lynch assign a special counsel to the investigation.