Here we go again

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In yet another summer Friday document dump last week more information about Hillary Clinton’s secretive email server, and the classified information stored on it, dribbled out to the public. And what did we learn?

It now is quite clear that Clinton blatantly lied to the public when she said she had not deleted any work-related emails. It is also now clear that her interest was not in protecting the sanctity of her yoga schedule or Chelsea’s wedding plans. Her FBI “302” – or interview summary — describes a clueless grandma totally unaware of the federal classification system. No one – least of all her supporters – believes that a woman who served in the United States Senate and as Secretary of State, and whose entire adult life has been spent in government, understands so little.

The fact is that Secretary Clinton kept classified information on an unsecure server. (Documents, by the way, aren’t classified; information contained in documents can be classified, which is why Clinton’s “marked classified” argument is a red herring). Thus, by definition, she necessarily received and/or sent out that classified information. She, or members of her staff, intentionally evaded federal record keeping laws by trying to keep all of her email away from the prying eyes of Congress and troublesome FOIA requests. Sure, a federal records act violation seems like a touch-foul in today’s political environment — until one realizes that a bar from future federal office is one of the penalties.

Tellingly, thousands of emails were deleted and wiped clean with deletion software (“Bleachbit”) just as knowledge of the secret server became public and while Congress was investigating. Faced with all of the objective, incontrovertible, evidence against her, Clinton and her legal team called up the only defense she has – she didn’t understand the rules, and thus didn’t intend to violate the law.

FBI Director James Comey, faced with a political hot potato of gigantic proportion, seized on this thin reed of a defense, claimed that no prosecutor would be able prove intent, and moved on. Never mind that intent is not a required element of some of the potential violations. Comey, nevertheless, punted the federal records act violations back to the State Department, which, surprise, surprise, chose not to recommend prosecution. So Hillary walks.

Donald Trump (whom I despise with the heat of a thousand suns, and who is more unqualified for the presidency than either of my greyhounds) has nothing to do with this issue.

The sad truth, as Clinton learned from her husband, is that if you hold the right political views, stonewalling works. Whitewater, Travelgate, the Lewinski scandal, and now Hillary’s email, are all examples of the effective political response to legal wrongdoing that was perfected by Bill Clinton.

First, act offended while lying through your teeth. “I did not have sex with this woman,” “I did not send or receive classified information – my deleted emails were yoga and wedding plans.”

Second, stonewall for years. Defy subpoenas, delete documents, have subordinates take the Fifth.

Third, having delayed the investigation, complain and blame prosecutors or Congress for the length of the investigation. Make every opponent a member of the “vast right wing conspiracy”.

Fourth, when years later, the initial denials are proven to be flat-out lies, claim that the story is “old news” and that “it is time to move on.” Having created fatigue in the body politic over the scandal, take advantage of that fatigue and argue that “putting it behind us” (with no consequences) is better than letting those “obsessed” with the matter continue.

And so it is with Hillary. Even her supporters know, in their heart of hearts, that she set up the server so that political enemies (Congress) and the public (through FOIA requests) couldn’t read her emails – the classification and security problems were a by-product of that. They know this is wrong, and likely illegal. They just don’t care. They are willing to go along with the lies because tolerating the lies is better than ending the political career of someone with whom they agree.

From a utilitarian perspective, I get it. If some left-wing lunatic celebrity unqualified for the presidency, such as Castro-loving Sean Penn , were the Democratic nominee, maybe I’d look the other way with respect to stonewalling dishonesty by the Republican. I hope I wouldn’t (I’ve always thought Oliver North was the Republican who benefited from partisans looking the other way on the law because they agreed with the policy), but I understand the sentiment.

But the more we tolerate dishonesty, ignore the rule of law, and willfully look the other way based not on the facts, but on the politics of the perpetrator, the more we encourage the behavior. The lawyers and advisors for the next President, whoever it is, can read the playbook.  Just as in the NFL, the successful play will keep getting called until it is stopped.

And we, as a nation, will get what we deserve.

Robert N. Driscoll

Robert N. Driscoll

Robert N. Driscoll is a native of the Boston area who currently practices law in Washington, D.C. The views expressed in this column are his own and not those of his firm. Nor are they the views of his wife, daughters, or greyhounds. Read his past columns here.