A former U.S. Attorney predicts a Watergate-style showdown in the Department of Justice if Attorney General Loretta Lynch overrules a potential FBI recommendation to indict Democratic presidential candidate Hillary Clinton.
“The [FBI] has so much information about criminal conduct by her and her staff that there is no way that they walk away from this,” Joseph diGenova, formerly the District of Columbia’s U.S. Attorney, told Laura Ingraham in a Tuesday radio interview. “They are going to make a recommendation that people be charged and then Loretta Lynch is going to have the decision of a lifetime”:
I believe that the evidence that the FBI is compiling will be so compelling that, unless [Lynch] agrees to the charges, there will be a massive revolt inside the FBI, which she will not be able to survive as an attorney general. It will be like Watergate. It will be unbelievable.
DiGenova is referring to the Watergate scandal’s “Saturday Night Massacre” Oct. 20, 1973, when President Richard Nixon sacked Special Prosecutor Archibald Cox and Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus resigned in protest.
DiGenova is well-sourced throughout the law enforcement community and his assessment has to be taken seriously. But interviews with other knowledgeable Washington insiders present a somewhat less concrete scenario developing around the former secretary of state.
At the center of Clinton’s difficulties is her use of a private email account and a home-brew server located in her New York home to conduct official business while serving as America’s chief diplomat between 2009 and 2013. Several of her closest aides also used the private server.
Clinton clearly didn’t abide by federal regulations requiring officials like her to use government computers and email accounts to conduct official business and take all of the necessary steps to preserve all such correspondence concerning official business.
As first reported by The Daily Caller News Foundation, Clinton emailed Center for American Progress President Neera Tanden Sept. 7, 2010, asking for advice on what she, President Barack Obama and Democratic campaign officials should do to prevent a Republican victory in the upcoming congressional elections.
“Do you and CAP have any ideas as to how to change the dynamic before it’s too late? Losing the House would be a disaster in every way,” Clinton told Tanden. The CAP chief responded at length with clearly partisan recommendations, noted her supposedly non-partisan think tank’s polling efforts to identify winning themes for Democrats and described her conversations relaying her advice to Obama and other senior White House officials.
On its face, the Sept. 7 Clinton email appears to be a violation of the Hatch Act, which bars partisan political activities by officials using government property while on official duty. But Clinton found a clever way to get around the law, according to a senior non-profit official with extensive experience investigating such activities. The official spoke on condition of anonymity.
First, that official said, by not preserving her email records until after she resigned as secretary of state, Clinton avoided an investigation by the Office of Special Counsel (OSC), which handles Hatch Act violations. The reason is simple — OSC has no authority over former federal employees in Hatch Act matters.
Second, by refusing to comply “with Federal Records Act requirements to use an approved system for preserving records, [Clinton] arguably did not engage in political activities while on official duty or while using federal resources because she communicated with a personal computer,” the official said.
In other words, “had Secretary Clinton used a State Department email address and a government computer and had Secretary Clinton complied with federal record-keeping and open government laws, [her] violations would have been discoverable under the Freedom of Information Act and could have been remedied while Secretary Clinton was still in office.”
Thus, don’t expect a Clinton indictment for a Hatch Act violation.
But Clinton is far from out of the woods, according to a congressional source who is deeply involved in the multiple investigations of Clinton. This source, who also spoke only on condition of anonymity, pointed to the hundreds of Clinton emails that contained classified information.
“Her problem is the sheer volume of emails that were deemed classified,” said this source. “Her first defense was that she didn’t send any classified information in her emails. But that claim has been clearly rendered false because so many of the emails were later marked classified.”
As the Department of State has released the Clinton emails she provided after leaving office, more than a thousand were marked classified after being reviewed prior to their public release. So what about Clinton’s subsequent distinction that she sent no information in her emails that was “marked classified” when it was sent?
“The volume matters because a reasonable person knows somebody who like the Secretary of State, who is allowed herself to classify materials, who has handled it for 25 years or more, at some point the law says you are responsible for recognizing classified material when you see it. That gets to the negligence issue,” the issue said.
Negligence is critical because Clinton signed a Non-Disclosure Agreement in 2009 regarding classified information that stated, among much else, that “Sensitive Compartmented Information involves or derives from intelligence sources or methods that is classified or is involved in a classification determination.…”
Clinton and several of her closest aides must have read information “derived from intelligence sources or methods” on a daily or near-daily basis.
There is an ominous sentence buried in that agreement Clinton signed: “Nothing in this agreement constitutes a waiver by the United States of the right to prosecute me for any statutory violations.”
What if Clinton is indicted for negligence in handling classified information? DiGenova predicts a showdown within a couple of months that will put Lynch in the same hot seat that prompted Nixon to fire Cox for getting too close to the truth about Watergate.
A Republican with direct knowledge of the investigation predicted political chaos if Lynch doesn’t decide to prosecute Clinton, a chaos that “would be the gift that keeps on giving right through the election.”
With or without resignations of FBI officials to protest such a decision, there would be a blizzard of news releases from congressional GOPers condemning Lynch, followed by hearings in which both the attorney general and FBI Director James Comey would be put under oath and asked about their actions.
This report, by Mark Tapscott, was cross-posted by arrangement with the Daily Caller News Foundation.
*UPDATE* Great minds and all that. Our colleague, Myra Adams, had been shopping a similar but even more compelling piece on a potential Hillary indictment on Monday, two days before Mark Tapscott filed the above report.
Myra’s piece finally went live this morning at RedState. According to her undisclosed source, who like Joseph diGenova is a former U.S. Attorney, FBI Director Comey will seek a grand jury indictment against Clinton before the Feb. 1 Iowa Caucus.