Judge Andrew P. Napolitano*
Hillary Rodham Clinton, the former first lady, U.S. senator from New York and secretary of state, used a private email server for all of her emails when she was President Obama’s secretary of state from 2009 to 2013.
During that time, she enjoyed a security clearance identical to that of the president, the secretary of defense, the director of the CIA and others -- it is the highest level of clearance the government makes available.
She had that classified clearance so that she could do her job, which involved knowing and working with military, diplomatic and sensitive national security secrets. The government guards those secrets by requiring high-ranking government officials to keep the documents and emails that reflect them in a secure government-approved venue and to return any retained records when leaving office.
I have not seen Clinton’s signature on any documents, but standard government procedure is for her to have signed an agreement under oath when she began her work at the State Department requiring her to safeguard classified records, and another agreement under oath when she ended her work that she had returned all records to the government.
She violated both agreements, and she violated numerous federal laws.
By using her personal email address -- @clintonemail.com -- she kept her work documents from the government. Concealing government documents from the government when you work for it is a felony, punishable by up to three years in prison and permanent disqualification from holding public office.
Failing to secure classified secrets in a government-approved facility or moving them to a non-secure facility outside the government’s control is a misdemeanor, punishable by a hefty fine and a year in jail. Using a false email address that gives the clear impression that the user is not using a government server when she is, or one that creates the false impression that the emailer is using a government server when she is not, is also a felony.
The legal issues in Clinton’s case are all the more curious when one hears Obama’s tepid reaction to this latest scandal. Asked by Bill Plante of CBS News last weekend when he first learned of Clinton’s use of a personal email server instead of the government’s, the president told Plante he learned of it from the media, last week, when the rest of us did. He later had his press secretary state that he did recognize her use of a non-governmental email address, but did not know it was unlawful or unsecured until last week.
Does the White House not know where the president’s emails are coming from and where they are going?
I wish Plante had followed up with that question and more. Mr. President, are you not troubled that your secretary of state had a non-secure email account and used it for all of her work? Are you not troubled that she might have kept classified secrets on a server in her barn on her estate in Chappaqua, N.Y. that the Secret Service might or might not have known about, or at a computer company in Texas that the Secret Service was unable to protect?
Does it not trouble you, Mr. President, that foreign intelligence services likely would have had a far easier time hacking into the emails of your secretary of state because of all this? Mr. President, will your Department of Justice prosecute Clinton for retaining 48 months of classified records on her personal server after she left office, as it did Gen. David Petraeus, who kept 15 months of classified records in a desk drawer in his home after he left office?
Mr. President, the premise of the law regulating government records is that the government owns them all, and when a high-ranking government official leaves office, the ex-official may ask the government for copies of her personal emails, and the government decides which ones it will give her. Mr. President, don’t you realize that Clinton turned the law on its head by keeping all of her emails from the government?
Thus, rather than the government deciding which emails were personal, Clinton decided which emails were governmental, and she turned those over to the government. How does the government know what is contained in the emails she kept? Mr. President, this is a privilege that even you don’t have, and it is the very behavior that the laws you have sworn to uphold were written to prevent.
Mr. President, did you cut a deal with Clinton’s husband that permits her to get away with this type of behavior? Mr. President, is it true that there are standards of behavior for Bill and Hillary Clinton and their friends and other standards for the rest of us?
Mr. President, do you remember that crackpot Sandy Berger, who was Bill Clinton’s national security adviser from 1997 to 2001 and Mrs. Clinton’s foreign policy adviser when she ran against you in 2008, and who stole documents from the National Archives in 2003 by hiding them under an on-site construction trailer? Do you know that Bill got Sandy a no-jail-time deal including the return of his security clearance, and he got Sandy’s prosecutor a federal judgeship?
Mr. President, when you ran against Hillary Clinton, you promised the most transparent government in history. Do you honestly think you have given us that?
*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution.